REMITTITUR:

TESTING THE FLEXIBLE LIMITS OF FAIR AND REASONABLE COMPENSATION IN DIAZ V. LEGAT

By Mark Szaflarski

© 2010 by Mark Szaflarski

INTRODUCTION

Remittitur is defined as "the procedural process by which a verdict of the jury is diminished by subtraction." Black's Law Dictionary. The standard of review for judging whether the award or denial of remittitur is proper is an abuse of discretion standard. Kindernay v. Hillsboro Area Hospital, 366 Ill. App. 3d 559, 572 (5^th Dist. 2006). Diminishing a verdict by remittitur is not an easy task, and only three avenues are available to reduce a jury verdict. "A verdict will not be set aside unless it is so excessive as to indicate that the jury was moved by passion or prejudice, or that it exceeds the necessarily flexible limits of fair and reasonable compensation or is so large that it shocks the judicial conscience." Richter v. Northwestern Memorial Hospital, 177 Ill. App. 3d 247, 257, 126 Ill. Dec. 584, 532 N.E.2d 269, 275 (1988).

In Diaz v. Legat Architects, 1-08-3622 & 1-08-3635 Consolidated, (1^st Dist. 12/14/09), the First District Appellate Court addressed the trial court's use of remittitur to diminish a construction worker's jury verdict. The court addressed the second way of attacking a damage award noted in Richter: where the defendant argues that a verdict "exceeds the necessarily flexible limits of fair and reasonable compensation." The appellate court's decision in Diaz provides ample evidence of just how hard it is to diminish a jury's verdict.

The Diaz appellate court decision addressed multiple issues on appeal, including the trial court's granting of remittitur. In addition to its decision on remittitur, the appellate court also determined that the I.P.I. 55 series on construction injuries adequately stated the law. Diaz, slip Opinion at 47. Further, statements made in final argument that defendant and third party defendant were engaged in a "team effort" and "love fest" could be construed as fair comment on the evidence where defendant and third party defendant presented a united defense. Diaz, Slip Opinion at 52.

THE REMITTITUR ISSUE

With regard to remittitur, the Diaz appellate court reviewed two seemingly intertwined issues:

1. Whether the medical testimony about future medical care and costs in the amount of $201,000 was speculative; and,

2. Whether the jury's award of $201,000 in future damages was proper.

With regard to the first issue, the trial court ruled that the medical testimony did not support a future damage award of $201,000. Diaz, Slip Opinion at 60. Estimates of the total cost of the back surgery, ($100,000 for surgery, $75,000 for in-patient hospitalization, and $26,000 for physical therapy) were included in the testimony of the subsequent treating physician, Dr. Gary Skaletsky. This opinion regarding the necessity of future surgery, according to both the trial and the appellate court, was speculative. Conversely, the appellate court then ruled that the trial court abused its discretion in ordering the remittitur of the $201,000 amount, because the jury was provided with testimony that future medical costs were likely in view of his permanent injuries. Diaz, Slip Opinion at 62.

The trial testimony showed that Mr. Diaz, a construction laborer fell 25 to 30 feet. Several medical personnel testified, including the emergency room physician, an orthopedic surgeon, a neurologist, a pain specialist, a chiropractor, and a physical therapist. This testimony showed that Jose Diaz underwent knee surgery after the fall and continued to suffer from neck, back and closed head injuries up to the time of trial. He could not return to his job as a construction laborer. At the time of trial, he was still undergoing aggressive medical therapy for low back pain, including a nucleoplasty done the month before the trial in an effort to shrink the disk to relieve pressure on his nerve. Whether the nucleoplasty would relieve Jose Diaz's pain would not be known for 6 to 12 weeks, at a time after the trial had ended. If the nucleoplasty did not relieve the pain, back surgery would be needed. This "wait and see" posture resulted in the following testimony from Dr. Skaletsky under questioning by defense counsel:

Q: All this about future back surgery, you don't know if he is going to have future back surgery or not, correct.

A: I agree.

Q: It's impossible to tell right now as you sit here today before this jury whether or not he's going to have back surgery in the future?

A: I agree with you.

Q: All right. So all of these numbers of hundreds of thousands of dollars and whatever that you just gave this jury, you don't know if that's going to happen or not?

A: I agree.

Q: Am I correct that you cannot say to a reasonable degree of medical certainty whether or not this man will actually need future back surgery; is that correct?

A: That is correct.

On re-direct, the following testimony was elicited:

Q: [Y]ou were asked a lot questions about whether or not you know whether or not surgery is going to be needed for Mr. Diaz in the future. On the flip side, of that Doctor, can you given an opinion now as to whether the conservative treatment that was done by Dr. Jain is going to relieve and end Mr. Diaz's symptoms and problems?

A: I can't say that with a reasonable degree of medical and surgical certainty.

(Testimony taken from the trial record.)

Based on this testimony, the trial court ordered remittitur, finding that the opinion regarding future medical was based on speculation. The amount awarded for future medical expenses, $201,000 corresponded to Dr. Skaletsky's projections of the cost of back surgery and recovery if the nucleoplasty failed. The appellate court agreed that this medical testimony was speculative. Citing Terracina v. Castelli, 80 Ill. App. 3d 475 (1^st Dist. 1979) and Zitzmann v. Miller, 194 Ill. App. 3d 477 (5^th Dist. 1990), the appellate court found that the subsequent treating physician's testimony did not rise to the "strong possibility" of future medical care required by the cases. Diaz, Slip Opinion at 60. In Terracina, the appellate court affirmed the trial court striking the treating physician's opinion that "it's possible" that the plaintiff would require future surgery. Terracina, 80 Ill. App. 3d at 480. In Zitzmann, the appellate court determined that the subsequent treating physician’s opinion that there was a "strong possibility" of future surgery together with the plaintiff's testimony that he intended to seek treatment amounted to sufficient evidence to support the award for future damages. Zitzmann, 194 Ill. App. 3d at 484.

Given that Dr. Skaletsky testified that it was "impossible" to know if Mr. Diaz would have future surgery, one would think that the $201,000 award for future damage would be remitted from the verdict. However, in order to determine if the award for future damages should also be stricken, the appellate court reviewed Richardson v. Chapman, 175 Ill.2d 98, 113, 676 N.E.2d 621, 628, 221 Ill. Dec. 818, 825 (Ill. 1997). There, the Illinois Supreme Court ruled that the jury could provide for future medical costs even though the no specific amounts were provided in the testimony.

In Richardson, the plaintiffs were injured when a semi-truck rear-ended their car at the Clavey Road intersection with Route 41 in Highland Park. Keva Richardson was a flight attendant for American Airlines before the crash. She suffered incomplete quadriplegia due to the crash. The medical testimony included evidence that she could not use her legs and she had only limited use in her arms, and loss of control of her fingers. She had no control over her bowel and bladder. Richardson, 175 Ill. 2d at 110. The jury awarded Ms. Richardson over $22,000,000.00 in damages.

The jury awarded $1,500,000.00 more in medical costs than the range provided by Professor Linke in his testimony. Defendant argued that Ms. Richardson was limited to figures in Professor Linke's testimony. Plaintiff countered that the jury was allowed to compensate her for additional future medical costs that were unspecified but likely to arise in the future, such as additional hospitalizations, wheelchairs, and specially equipped vans. The Illinois Supreme Court agreed with the plaintiff, stating that "[w]e agree with Richardson that the trier of fact enjoys a certain degree of leeway in awarding compensation for medical costs that, as shown by the evidence, are likely to arise in the future but are not specifically itemized in the testimony." Richardson, 175 Ill. 2d at 112. The Supreme Court reduced the award by $1,000,000, finding that $500,000 "adjustment allows Richardson recovery for expected future medical costs for which no specific estimates were introduced, yet is not so large that it represents a departure from the trial testimony." Richardson, 175 Ill. 2d at 113.

Relying on Richardson, the appellate court in Diaz determined that the trial court abused its discretion in ordering the remittitur. Diaz, Slip Opinion at 61. The evidence established that Jose Diaz's condition was permanent, and he remained at risk for future injury. He continued to suffer pain and loss of strength and there were further treatments that were available to give him relief. The jury was reasonable to conclude that he would continue to incur medical costs in the future. "Given that his past medical bills were $132,000 for the 6 years between his accident and the trial in this case and that his life expectancy was 21 years, an award of $201,000 for future medical expenses was supported by the evidence." Diaz, Slip Opinion at 62.

The court struck the medical testimony that was speculative. There was no way that Dr. Skaletsky could know whether the nucleoplasty would relieve Jose Diaz's back pain or the pain would return and require surgery. Only time would tell on that issue, the answer to be derived in the months following the trial. However, the exclusion of the speculative testimony of Dr. Skaletsky did not control the award for future damages. Of utmost importance was the fact that the evidence indicated that Mr. Diaz suffered a permanent injury. The jury was allowed leeway in determining an award for future medical care because Mr. Diaz's injury was permanent and treatment was on-going.

Extensive medical testimony was provided to the jury demonstrating that after this 20 to 30 foot fall, Jose Diaz required knee surgery, complained of constant headache, dizziness, and jaw, neck and shoulder pain. This pain required continued use of medications and use of a back brace. Several medical witnesses testified at trial regarding their care and treatment of Mr. Diaz. The problems had not subsided in the 6 years between the fall and the trial. Thus, the appellate court found that the jury was correct to award future damages in view of the continuing, permanent nature of the injuries.

CONCLUSION

Seeking remittitur to diminish a jury verdict is no easy task. As demonstrated by Diaz, the appellate court will grant the jury's award of damages great deference. The jury is allowed leeway in awarding damages, especially for future damages in the case of a plaintiff with a permanent injury. Even if testimony of projected future medical damages is stricken, an award for future damages will not be diminished if the jury has heard adequate evidence of the future medical needs of a plaintiff who has suffered a permanent injury.