20 2 4 IL App (1st) 2 32 000

- U
F OURTH DIVISION Order filed: August 15, 2024
No. 1 -23-2000 NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent e xcept in the limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ I N THE APPELLATE COURT OF ILLINOIS
FIRST DISTRICT

______________________________________________________________________________ TEKELA R. SCOTT Plaintiff -Appell ant ,

v. LAMON P. CALDWELL , Defendant

- Appellee. ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County , Law Division

. No. 2020 L 13839 Honorable Thomas More Donnelly , Judge , p residing

.

JUSTICE HOFFMAN delivered the judgment of the court. Justices Martin and Ocasio concurred in the judgment. O RDER ¶ 1 Held : Trial court did not abuse its discretion in denying the p laintiff’s motion for a new trial due to two claimed violations of pretrial motions in limine , when one alleged violation was not a clear violation of the motion in limine , the second alleged violation was indirect , and any error did not deprive the p laintiff of a fair trial

. ¶ 2 Plaintiff T e kela R. Scott brought a single

- count complaint against d efendant Lamon P. Caldwell under the Illinois Gender Violence Act (Act) (7 40 ILCS 82/1 et seq. (West 20 22 ). The

matter proceeded to a jury trial, and the jury returned a verdict for Caldwell and against Scott

.No. 1 -23-2000

- 2 - Scott moved for a new trial, arguing that she was deprived of a fair trial due to questioning by Caldwell that she alleged violated two portions of the trial court’s order granting most of her motions in limine . The trial court denied Scott’s motion for a new trial, and Scott appeals. We find that the trial court did not abuse its discretion in denying Scott’s motion for a new trial and affir m. ¶ 3 In 2014, Caldwell was charged with four counts of criminal sexual assault based on an alleged assault of Scott

. Following a bench trial at which Scott testified, Caldwell was found not guilty

. ¶ 4 In 2020, Scott filed the instant action under the Act, alleging that Caldwell committed a battery against her because of her sex based on the same underlying incident as the prior criminal

case . ¶ 5 Prior to trial, Scott filed a set of motions in limine . Relev ant to this appeal, Scott’s motio n in limine #9 sought to “bar evidence of the verdict from the 2 0 15 criminal trial” under Illinois Rule of Evidence 403 (eff. Jan. 1, 2011). Scott’s motion in limine #12 sought to bar reference to her two prior abortions in 1995 and 2002 under Illinois Rules of Evidence 401 (eff. Jan. 1, 2011), 402 (eff. Jan. 1, 2011), and 403

. During the parties’ pre

- trial conference, Caldwell asked that he be allowed to address the existence of the prior criminal trial, but not bring up th e not guilty verdict. The trial

c ourt granted Scott’s motion in limine #9 with that understanding. Scott’s motion in limine #12 was granted without any noted objection from Caldwell. Both motions #9 and #12 were granted in the trial court ’s written pretrial order. ¶ 6 The matter proceeded to a three

- day jury trial starting June 12 , 2023. During opening statements, both parties ref erred to the fact that Caldwell had been arrested and criminally charged for th e incident underlying Scott’s claim

. Scott testified as part of her case

- in

- chief. During herNo. 1 -23-2000

- 3 - cross - examination, Scott was asked numerous questions about her testimony in the “c riminal transcript ,” referring t o the transcript of her testimony in Caldwell’s criminal trial on December 14, 2015. No testimony was elicited regarding the result of that trial ; the transcript was only used to impeach Scott. ¶ 7 Scott also called Dr. Louise Fitzgerald, Ph.D., who was admitted as an expert witness in the field of psychology, specifically on the psychological effects of sexual violence. On direct examination, Dr. Fitzgerald discussed her psychological evaluation of Scott in connection with the

a lleged assault and her opinion as to the source of Scott’s post

- traumatic stress disorder, among other mental health conditions. ¶ 8 During cross -examination, Dr. Fitzgerald was questioned regarding e

- mail correspondence she had with Scott’s couns el . The e

- mail exchange contains a sentence from Dr. Fitzgerald stating , “I particularly wish I had known about the second abortion ,” in reference to her evaluation of Scott and the creation of her report. The cross - examination proceeded as follows : “Q

. And in this e

- mail, you indicate that Ms. Scott had a certain medical operation, a second one — [COUNSEL FOR PLAINTIFF]: Objection, [Y] our Honor, MIL.
THE COURT : And if you would proceed with another question, please. [COUNSEL FOR DEFENDANT]: Okay. Q. Now you agree that — now, Ms. Scott — now, you agree that there were omissions of the text message correct, and another omission of a certain nature, correct?
A. Excuse me?No. 1 -23-2000

- 4 - Q. Do you agree that Ms. Scott omitted in her interviews telling you about her communications with Lamon Caldwell after the alleged assault, correct?
A. I didn’t say that. Q. Isn’t it correct that you had wished that you had seen the text messages and pictures prior to your interview with Ms. Scott?
A. I always want to see — not prior to my interview. I always want to see everything prior to my report. Q. And omissions could lead to wrong diagnoses, correct?
A. Depends on what the omissions are. Q. Medical procedure omissions could lead to wrong diagnoses, Ms. — [COUNSEL FOR PLAINTIFF]: Objection, your Honor.
THE COURT : Sustained. Q. Isn’t it true that Ms. Scott testified — or Ms. Scott, during your interview, indicated her zealous religious natu re?
A. She did. Q. And isn’t it true that omissions potentially could conflict with her religious zealousness in the sense of your diagnosis of her mental state?
A. I’m sorry, sir, that’s a completely incomprehensible question. ”
Scott did not object to the final question in the above exchange , and Caldwell moved on to a different topic without receiving an answer to the final question. The e

- mail referring to Scott’s abortion was not published to the jury , nor was it admitted into evidence.No. 1 -23-2000

- 5 - ¶ 9 Caldwell test ified as part of his case

- in

- chief. During introductory questioning about hi s background and occupation, Caldwell was asked , “By the way, have you ever been convicted of a crime?” Caldwell responded “No, sir.” Scott objected, and the trial c ourt sustained the objection and struck Caldwell’s answer. ¶ 10 During a sidebar outside the presence of the jury , Caldwell argued that the question did not directly violate motion in limine #9, as the question did not directly refer to the criminal trial or its result . T he trial c ourt agreed as to the indirect nature of the violation, but explained its ruling:
“ THE COURT: So I sustained the objection because I thought it would lead to the inference that it was a not guilty on the criminal charges. And while it’s not a direct violation, I thought it was an indirect one, and I thought it was best to sustain the objection and instruct the jury to disregard it.” ¶ 11 At the close of evidence but before closing argum ents , counsel for Scott raised the issue regarding the alleged violations of the motions in limine , resulting in the following exchange:
“ [COUNSEL FOR PLAINTIFF]: The other issue that we’re very concerned by defense counsel’s repeated eliciting or attempt s to elicit information, evidence that was explicitly barred in this court’s order limiting — this court’s order related to the motions in limine including Mr. Caldwell’s lack of criminal conviction as well as Ms. Scott’s medical procedures.
THE COURT: An d what do you want the Court to do? [COUNSEL FOR PLAINTIFF]: Well, [Y] our Honor, we are considering our options at this point. At this point, we would like to preserve our objection. We know thatNo. 1 -23-2000

- 6 - we need to have — to the extent we need a motion for the fi ling for a new trial or mistrial, we would need to do that before the jury enters a verdict. At this point, we need more time to consult with our client and discuss our options, so I did want to put on the record the concern. THE COURT: So at this time, you don’t want me to do anything? I’ve sustained your objection and I instructed the jury to disregard it. I struck the testimony. There’s nothing more you want me to do at this moment? [COUNSEL FOR PLAINTIFF]: That’s correct. At this moment, there’s not hing more we want to you do. The one thing we do want to do is preserve our record and not waive anything today, [Y] our Honor.” ¶ 12 The parties then discussed the possibility of a curative instruction with the Court , and the trial c ourt instructed the parties to confer. Prior to closing arguments, Scott represented that “we do not think any additional curative measures are needed , ” and no curative instruction was ultimately given to the jury. ¶ 13 T he jury returned a verdict for Caldwell and against Scott. Scott subsequently filed a motion for a new trial based on the alleged violations of the motions in limine

. After a hearing, the trial c ourt denied the motion. In its oral ruling, the trial c ourt discussed the two alleged violations of the motions in limine . The trial c ourt found that the exchange during the cross

- examination of Dr. Fitzgerald regarding a medical procedure was too confusing for the jury to make the inference that Scott had any abortions. The trial c ourt agreed with Scott that the jury could have made the inference that Caldwell was found not guilty at the criminal trial based on the stricken testimony, but it found that the testimony was only an indirect violation of motion in limine #9 . The trial courtNo. 1 -23-2000

- 7 - assessed the impact of the indirect nature of the violation , the apparent inadvertence of the violation, along with Scott’s decision to not ask for a curative instruction on the overall fairness of the trial, and found that a new trial was not warranted and denied the motion

. This appeal follows. ¶ 14 Scott’s sole claim of error on appeal is that the trial court abused its discretion by denying her motion for a new trial based on the alleged violations of motions in limine #9 and #12. W e find that the trial court did not abuse its discretion in denying Scott’s motion for a new trial, as the alleged violation of motion in limine #12 was not clear, and any violation of motion in limine #9 did not deprive her of a fair trial , nor did cumul ative effect of both alleged violations

. ¶ 15 A trial court’s ruling on a motion for a new trial will not be disturbed on appeal unless the moving party can demonstrate that the trial court clearly abused its discretion. Anderson v. Zamir  ̧ 402 Ill. App. 3d 362, 364 (2010). A violation of a motion in limine is not per se reversible error. Jones v. Chicago Osteopathic Hospital , 316 Ill. App. 3d 1121, 1132 (2000)

. An alleged violation of a motion in limine warrants a new trial only when the order is specific, t he violation is clear, and the violation deprives the movant of a fair trial. Bakes v. St. Alexius Medical Center , 2011 IL App (1st) 101646, ¶ 40. ¶ 16 Starting with motion in limine #12, we agree with the trial court that it was unclear whether motion in limin e #12 was violated by the exchange with Dr. Fitzgerald on cross - examination

. While the order clearly prohibited reference to Scott’s prior abortions, the exchange at issue contains no direct reference to abortion, and the indirect reference to medical proc edures was in the context of an exhibit that the jury did not see. ¶ 17 Caldwell attempted to elicit an answer from Dr. Fitzgerald regarding Scott’s disclosure of medical procedures and communications with Caldwell and the impact that non- disclosure mayNo. 1 -23-2000

- 8 - have had on Dr. Fitzgerald’s evaluation of Scott. As Caldwell points out, the word “abortion” was never uttered during this exchange. I n the context of the e

- mails being shown to Dr. Fitzgerald, the questioning was almost certainly referring to Scott’s failure to disclose a prior abortion to Dr. Fitzgerald , but that e

- mail was ne ither admitted into evidence nor published to the jury. The jury was only presented with the question s by Caldwell referring to “medica l procedure omissions .” Additionally, Scott failed to object to the final question in this sequence, and therefore has not preserved any claim of error with regards to that question. ¶ 18 We agree with the trial court that there was no clear violation of motio n in limine #12 , and , therefore , the trial court did not abuse its discretion in denying Scott’s motion for a new trial on that basis

. See Brown v. Bozorgi , 234 Ill. App. 3d 972, 977 (1992) (finding that veiled reference s to fact that doctor involved in tr eating plaintiff had reached settlement agreement did not constitute clear violation of motion in limine barring reference to plaintiff’s settlement agreements and did not warrant new trial). ¶ 19 Scott also argues that the fact that she was required to raise two objections to this line of questioning alone constitutes prejudice or deprived her of a fair trial, but we disagree . Caldwell was entitled to cross

- examine the basis of Dr. Fitzgerald’s opinions about Scott , and he attempted

to explore Scott’s non

- disclosure of certain aspects of her history without directly referring to abortion. Scott points to Geisberger v. Quincy , 3 Ill. App. 3d 437, 441 (1972) , in support of her position , but Geisberger is distinguishab le from the present case, as that case involved “repeated rulings and admonitions” not to address prohibited topics, whereas here the trial court made one admonishment to “proceed with another question” after Scott’s first objection and sustained her

secon d objection. After a third question arguably implicating the ba rre d topic was not objected toNo. 1 -23-2000

- 9 - or answered by Dr. Fitzgerald , Caldwell moved on. Given the numerous objections raised by Scott throughout the trial, we cannot say that the fact that she raised two objections during this exchange drew undue attention to the questions or resulted in any prejudice. ¶ 20 Turning to motion in limine #9, we agree with the trial court and Scott that the jury could have “put 2 and 2 together to make 4 ” and concluded that Cal dwell had been tried and found not guilty of criminal sexual assault. It was no secret based on the parties’ opening statements and the repeated referrals to Scott’s testimony in a prior criminal trial during her cross

- examination that Caldwell had been criminally tried regarding the allegations underlying the civil case. Within that
context, Caldwell’s testimony that he had not been convicted of a crime c ould lead to a n inference that the result of the criminal trial was a not gui lty verdict

. However, we also agree with the trial court that this was an indirect violation of motion in limine #9 . Rather than directly elicit ing the

not- guilty verdict of the criminal trial as prohibited by motion in limine #9, it required an inference based on two pieces of testimony taken on different days that there was a criminal trial and that Caldwell had not been convicted of any crime

. Regardless, Caldwell’s testimony that he had not been convicted of a crime was a clear, if indirect, violation o f motion in limine #9’s prohibition on introducing evidence of the not

- guilty finding in Caldwell’s criminal trial. ¶ 21 Finding that motion in limine #9 was indirectly violated , we find that the trial court did not abuse its discretion in denying Scott’s motio n for a new trial based on this violation. The violating question and answer was in the context of Caldwell’s background, rather than intertwined with a discussion of the all eg ed assault or of the criminal trial

. The trial court sustained Scott’s objection and struck Caldwell’s answer, which “generally is a prompt cure for any prejudicial impact that may have been caused.” Kass v. Resurrection Medical Center , 316 Ill. App. 3d 1108, 1114 (2000).No. 1 -23-2000

- 10 - ¶ 22 Scott argues that t he jury still heard this information , and the jury could have used the fact that Caldwell was acquitted to undermine her credibility or confuse the burden of proof. However , we must presume that the jury followed the trial c ourt’s instruction when it struck the offending testimony and followed the trial court’s instruction regarding the applicable burden of proof

. McHale v. Kiswani Trucking, Inc. 2015 IL App (1st) 132625 ¶ 47. We cannot find the trial court abused its discretion in denying Scott’s motion fo r a new trial based on its assessment of the impact of the single improper question on the proceedings as a whole. ¶ 23 Scott also contends that the trial court improperly considered the apparent unintentional nature of the violation of the motions in limine , t he indire c t nature of the violation s , and her failure to request a curative instruction or move for a mistrial in denying her motion for a new tria l. We disagree that these considerations by the trial court in its oral ruling on Scott’s motion constitute

error or an abuse of discretion

. T he trial court’s discussion of intent was related to the context of the question regarding Caldwell’s criminal history following preliminary questions about his background, rather than in the context of the cri minal trial or the allegations in this case. With regards to the discussion of the indirect nature of the violation, the trial court discussed the lack of precedent supporting the proposition that an indirect violation of a motion in limine warranted a

new trial. We cannot say that the trial court’s discussion of relevant precedent, or lack thereof, was an improper consideration. ¶ 24 Similarly, the trial court properly considered Scott’s decision not to move for a mistrial or curative instruction as a factor in denying her motion for a new trial. Before closing arguments , Scott explicitly addressed the possibility of moving for a mistrial or asking for a curative instruction but wanted to evaluate her options before doing so . Rather than move for a mistrial orNo. 1 -23-2000

- 11 - ask for a curative instruction, Scott elected to wait for the verdict, then raise her claim of error in a posttrial motion

. Scott is correct that she was not required to ask for a curative instruction or move for a mist rial in order to preserve her claim of error for review. Jackson ex rel. Jackson v. Reid , 402 Ill. App. 3d 215, 231 (2010) . However , t his conduct suggests that prior to the verdict in Caldwell’s favor, Scott did not see the error as so prejudicial as warranting a new t rial. See Holloway v. Sprinkmann Sons Corp. of Illinois , 2014 IL App 4th 131118, ¶ 127 (“A party cannot wait until after the verdict and then revise its assessment of fairness. That would be taking two bites out of the apple.”). The trial court properly took Scott’s tactical decisions into account as a factor in assessing whether she received a fair trial

. ¶ 25 Alternatively, Sco tt argues that the cumulative impact of both alleged violations deprived her of a fair trial. We disagree. Even considering the c umulative impact of both claimed violations , we find no abuse of discretion by the trial court in denying Scott’s motion for a new trial. In ruling on Scott’s motion for a new trial, t he trial court carefully discussed the alleged violations in the context of the entire trial and found that Scott was not deprived of a fair trial due to the claimed violations of the motions in limi ne . The trial court was in a superior position to assess the impact of the claimed violations on the jury and on the trial as a whole. The trial court also considered many of the same cases cited by Scott before this court and found that none of them were directly analogous to the present case. Given the trial court’s carefully thought

- out reasoning, we find no abuse of discretion in the trial court’s conclusion that the claimed violations of the motions in limine did not deprive Scott of a fair trial. ¶ 26 For the foregoing reasons, we affirm the trial court’s order denying Scott’s motion for a new trial.No. 1 -23-2000

- 12 - ¶ 27 Affirmed.