SOLE PROXIMATE CAUSE

1. SOLE PROXIMATE CAUSE Judge Lynn M. Egan Judge William J. Haddad August 12, 2013

2. GENERALLY… “A defendant is always free to offer evidence that the conduct of a third person was the sole proximate cause of the plaintiff’s injuries.” Simmons v. Garces, 198 Ill.2d 541 (2002)

3. HOWEVER… As with ALL jury instructions, there must be “some evidence” to warrant the giving of an instruction on sole proximate cause.

4. What Does This Mean? There must be “some” evidence that the conduct of a nonparty was the sole proximate cause of plaintiff’s injury; OR There must be “some” evidence that something other than the defendant’s conduct was the sole proximate cause of plaintiff’s injury.

5. TWO INSTRUCTION OPTIONS: IPI No. 12.04 “Concurrent Negligence Other Than Defendant’s” IPI No. 12.05 “Negligence – Intervention of Outside Agency”

6. TO BE OR NOT TO BE… LONG FORM OR SHORT FORM? THAT is the question

7. IPI NO. 12.04 Plaintiff’s version (short form): “More than one person may be to blame for causing an injury. If you decide that a [the] defendant[s] was [were] negligent & that his [their] negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.” Defendant’s version (long form): “[However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant.]”

8. IPI NO. 12.04 This instruction is appropriate where there is SOME evidence that the conduct of a nonparty caused or contributed to causing plaintiff’s injury. The 2nd paragraph (long form) is appropriate ONLY where there is evidence that the sole proximate cause of plaintiff’s injury was the conduct of a 3rd person. Robinson v. Boffa, 402 Ill.App.3d 401, 402 (1st Dist., 2010)

9. NOTE Even though IPI No. 12.04 is entitled, “Concurrent Negligence…,” It is NOT necessary for the defendant to establish that the nonparty’s conduct was negligent. Hence, it is called the “empty chair” defense. McDonnell v. McPartlin, 192 Ill.2d 505, 516 (2000)

10. IPI NO. 12.05 Plaintiff’s version (short form): “If you decide that a [the] defendant[s] was [were] negligent & that his [their] negligence was a proximate cause of injury to the plaintiff, it is not a defense that something else may also have been a cause of the injury.” Defendant’s version (long form): [“However, if you decide that the sole proximate cause of the injury to the plaintiff was something other than the conduct of the defendant, then your verdict should be for the defendant.”]

11. NOTE Similar to IPI No. 12.04, the defendant need not show that the “something” is negligent. “Something” can include a variety of non-negligent causes, such as: • Pre-existing congenital condition • Plaintiff’s failure to follow medical instructions • The very condition for which plaintiff sought treatment.

12. HOW MUCH & WHAT TYPEOF EVIDENCE IS SUFFICIENT ? • How much evidence? “Some” • What type of evidence? Competent evidence (Yoder v. Ferguson)

13. WHAT IS COMPETENT EVIDENCE ? Depends on the type of case. • In medical negligence cases, competent evidence must be supplied by an expert & based upon a reasonable degree of medical certainty, UNLESS the common knowledge exception applies. Johnson v. Loyola University Medical Center, 384 Ill.App.3d 115, 121 (1st Dist., 2008)

14. COMPETENT EVIDENCENEED NOT… • Be direct evidence. Causation “may be established by inference from circumstantial evidence.” • Exclude all other possible inferences or support only one logical conclusion. Kunz v. Little Company of Mary Hosp., 373 Ill.App.3d 615, 620 (1st Dist., 2007).

15. HOWEVER… • The defendant is NOT entitled to a sole proximate cause instruction if the evidence merely points to “multifactorial causes.” • Instead, the evidence must point to a SOLE proximate cause. Clayton v. County of Cook, 346 Ill.App.3d 367, 388 (1st Dist., 2003) NOTE: This does not mean a defendant is precluded from offering different theories about the sole cause. (Yoder v. Ferguson, 381 Ill.App.3d 353 (1st Dist., 2008)).

16. WHAT’S THE BIG DEAL ? The short form “is implicitly biased towards the plaintiff’s case…” AND Is “unfair where…evidence was presented showing that another may have been the sole proximate cause of an injury but such evidence was not impartially presented by an appropriate instruction.” Ellis v. Delnor Community Hosp., 237 Ill.App.3d 396, 408 (2d Dist., 1992).

17. STANDARD OF REVIEW • Error in precluding evidence of sole proximate cause or failing to tender the long form instruction does NOT automatically entitle the aggrieved party to a new trial. • Instead, the record must demonstrate “serious prejudice.” • VERY difficult to do if special interrogatories not used. Tabe v. Ausman, 388 Ill.App.3d 398, 405 (1st Dist., 2009)

18. PRACTICE TIPS BY Judge William J. Haddad

19. Sample Ruling In A Wrongful Death/Medical Malpractice Case Tried to Verdict in Cook County, IL: “The central issue here is to strike a balance between the plaintiff’s right to be free from prejudice by disclosing the negligent conduct of previously dismissed parties to this lawsuit versus the defendant’s right to disclose the conduct of a 3rd party which could be the sole proximate cause of injury. The evidence adduced here should be limited to action or nonactions that may be the sole proximate cause of injury. The defendant may show evidence of high bilirubin, failures to intervene, & other such conduct that has a nexus to the injury. However, the defendant may not elicit opinions of whether or not that ‘conduct’ was ‘negligent’ conduct – as negligence is not the issue & these 3rd parties are not on trial.” See, McDonnell v. McPartlin, 192 Ill.2d 505 (2000)

20. IPI NO. 15.01 Proximate Cause – Definition. “When I use the expression ‘proximate cause,” I mean a cause that, in the natural or ordinary course of events, produced the plaintiff’s injury.” “[It need not be the only cause, nor the last or nearest cause. It is sufficient if it combines with another cause resulting in the injury.]”

21. IPI NO. 12.04 Concurrent Negligence Other Than Defendant’s: “More than one person may be to blame for causing an injury. If you decide that the defendant was negligent and that his negligence was a proximate cause of injury to the plaintiff, it is not a defense that some 3rd person who is not a party to the suit may also have been to blame. [However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant.]”

22. IPI NO. 12.05 Negligence – Intervention of Outside Agency. “If you decide that the defendant was negligent & that his negligence was a proximate cause of injury to the plaintiff, it is not a defense that something else may also have been a cause of the injury. [However, if you decide that the sole proximate cause of injury to the plaintiff was something other than the conduct of the defendant, then your verdict should be for the defendant.]”

23. SPECIAL INTERROGATORY(Referencing IPI No. 12.04) Was the sole proximate cause that produced [Plaintiff’s] injury the conduct of some persons or entities other than [the Defendant]? ________ ________ YES NO

24. SPECIAL INTERROGATORY(Referencing IPI No. 12.05) Was the sole proximate cause of [Plaintiff’s] injury [something/some condition] other than the conduct of Dr. [Jane Doe]? ________ ________ YES NO

25. Written Materials &PowerPointAvailable At: www.cookcountycourt.org CLICK ON “JUDGES INFORMATION” & GO TO LINK FOR JUDGE LYNN M. EGAN