                                No. 3--07--0326
______________________________________________________________________________
Filed May 16, 2008
                    IN THE APPELLATE COURT OF ILLINOIS

                                          THIRD DISTRICT

                                              A.D., 2008

TONI THORNTON, INDIVIDUALLY               )  Appeal from the Circuit Court
AND AS SPECIAL ADMINISTRATOR              )  of the 12th Judicial Circuit,
OF THE ESTATE OF JASON ANTHONY            )  Will County, Illinois
EBNER, DECEASED,                          )
                                          )
        Plaintiff-Appellee,               )
                                          )
        v.                                )
                                          )
FRANCISCO J. GARCINI, M.D.,               )  No. 01-L-020
                                          )
        Defendant-Appellant,              )
                                          )
and                                       )
                                          )
JANET WRY, R.N., Individually and as      )
agent for SILVER CROSS HOSPITAL, et. al., )  Honorable
                                          )  Richard J. Siegel,
        Defendants.                       )  Judge, Presiding.
______________________________________________________________________________

      JUSTICE CARTER delivered the opinion of the court:
______________________________________________________________________________

        Plaintiff, Toni Thornton, individually and as the special administrator of her deceased son’s

estate, brought suit against defendant, Dr. Francisco J. Garcini, for wrongful death, survival, and

negligent infliction of emotional distress in relation to the death of her son during child birth and the

circumstances of delivery. After a trial, a jury found defendant liable for negligent infliction of

emotional distress and awarded plaintiff $700,000 in damages. Defendant filed a motion for

judgment notwithstanding the verdict and request for setoff, which was denied by the trial court.

Defendant appeals, arguing that his motion for judgment notwithstanding the verdict should have
been granted because: (1) plaintiff failed to prove negligent infliction of emotional distress by expert

testimony as required under Illinois law, and (2) the verdict against him is in violation of the single-

recovery rule. In the alternative, defendant argues that he is entitled to a setoff of $175,000 based

on the payment of a prior judgment in this case. We affirm the rulings of the trial court.



                                               FACTS

       On August 28, 2000, plaintiff’s infant son died during child birth. The baby was born

prematurely with an approximate gestational age of just under 24 weeks and a birth weight of almost

two pounds. Within a few minutes after plaintiff’s water broke the baby partially delivered in a

breech position but became entrapped at the head. Defendant, plaintiff’s obstetrician, was not

present at the hospital at the time of the partial delivery and no other doctor was present to assist in

the delivery.   As a result, plaintiff sat with the baby in a partially-delivered position for

approximately one hour and ten minutes until defendant arrived at her bedside and delivered the

baby. The baby was deceased at that time.

       Plaintiff subsequently brought suit against defendant, the nurses involved, and the hospital

for wrongful death, survival, and intentional infliction of emotional distress. A jury found defendant

and the nurses not liable on all claims, ruled against the hospital on plaintiff’s emotional-distress

claim, and awarded plaintiff $175,000.

       Plaintiff filed a posttrial motion challenging the jury verdict as to defendant, the hospital, and

the nurses. In the motion, plaintiff alleged, among other things, that the jury had been improperly

exposed to prejudicial extrinsic information during their deliberations and that the trial court had

erred in giving the jury certain instructions. While the motion was pending, plaintiff entered into a


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agreement with the nurses and the hospital to settle all of plaintiff’s and the estate’s claims against

those parties for $175,000. The written agreement specifically provided that the settlement would

not effect plaintiff’s claims against the instant defendant, the only party who did not settle with the

plaintiff. The posttrial motion proceeded as to plaintiff’s claims against defendant. After some

discovery and a hearing, the trial court denied plaintiff’s posttrial motion. This court subsequently

reversed that ruling and remanded the case for a new trial on plaintiff’s claims against the instant

defendant. Thornton v. Garcini, 364 Ill. App. 3d 612, 621, 846 N.E.2d 989, 997 (2006).

        The evidence presented at the second jury trial established the general circumstances of the

delivery as described above. However, conflicting witness testimony was presented regarding the

information that was conveyed to defendant during the delivery and the timing of that information.

In addition, the expert-opinion witnesses disagreed as to whether defendant had breached the

standard of care by not coming to the hospital earlier, and at least by implication, as to whether

defendant’s presence in the delivery room would have made any difference in the procedure that was

followed. During the course of the second trial, plaintiff amended her complaint to conform to the

proofs to include a claim of negligent infliction of emotional distress and elected not to submit a

claim of intentional infliction of emotional distress to the jury. Although plaintiff, the baby’s father,

and plaintiff’s mother testified regarding the effect that the baby’s death and the circumstances of

the delivery had on plaintiff, no expert witness was presented regarding plaintiff’s claim for

emotional distress. At the conclusion of the second trial, the jury found in favor of defendant on the

wrongful death and survival claims, ruled in plaintiff’s favor on the negligent infliction of emotional

distress claim, and awarded plaintiff $700,000 in damages.

        Defendant filed a posttrial motion for judgment notwithstanding the verdict alleging, among


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other things, that plaintiff had failed to prove negligent infliction of emotional distress by expert

testimony as required under Illinois law and that the verdict was in violation of the single-recovery

rule. In the alternative, defendant requested that the amount of the damage award be setoff by

$175,000 to reflect the hospital’s payment in full of the prior verdict amount. The trial court denied

defendant’s motion for judgment notwithstanding the verdict and the request for setoff. This appeal

followed.



                                            ANALYSIS

       As his first point of contention on appeal, defendant argues that his motion for judgment

notwithstanding the verdict should have been granted because plaintiff failed to prove negligent

infliction of emotional distress by expert testimony as required under Illinois law. Defendant

contends that expert testimony is necessary to establish that the emotional distress was severe, that

it was a reasonably foreseeable consequence of the alleged negligence, and to distinguish the

emotional distress caused by the circumstances of the delivery from that caused by the death of

plaintiff’s son, the latter of which plaintiff cannot be compensated for under her emotional distress

claim. Plaintiff argues that expert testimony is not required under Illinois law to establish a claim

of negligent infliction of emotional distress.

       A trial court’s ruling on a motion for judgment notwithstanding the verdict is subject to a de

novo standard of review. McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 132, 720

N.E.2d 242, 257 (1999). A motion for judgment notwithstanding the verdict should only be granted

in those limited cases where all of the evidence and the inferences therefrom, viewed in the light

most favorable to the nonmoving party, so overwhelmingly favors the movant that no contrary


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verdict based on that evidence could ever stand. Maple v. Gustafson, 151 Ill. 2d 445, 453, 603

N.E.2d 508, 512 (1992). When ruling upon such a motion, the court does not weigh the evidence

or make determinations of credibility and must not substitute its judgment for that of the jury merely

because there are other inferences or conclusions that the jury could have drawn or because there are

other results that the court believes is more reasonable. Maple, 151 Ill. 2d at 452-53, 603 N.E.2d at

512. “The court has no right to enter a judgment [notwithstanding the verdict] if there is any

evidence, together with reasonable inferences to be drawn therefrom, demonstrating a substantial

factual dispute, or where the assessment of credibility of the witnesses or the determination regarding

conflicting evidence is decisive to the outcome.” Maple, 151 Ill. 2d at 454, 603 N.E.2d at 512.

       In the present case, the arguments of the parties on this issue center around an interpretation

of our supreme court’s ruling in Corgan v. Muehling, 143 Ill. 2d 296, 574 N.E.2d 602 (1991), a case

where our supreme court applied a general-negligence approach to a claim of negligent infliction of

emotional distress raised by a direct victim of the defendant’s negligence. See Corgan, 143 Ill. 2d

at 306, 574 N.E.2d at 606. Defendant points to the supreme court’s statements in that case--that the

“lack of precision is not a justifiable reason to preclude recovery, as expert witnesses such as

psychiatrist, psychologists and social workers are fully capable of providing the jury with an analysis

of a plaintiff's emotional injuries” and that “the women and men of the mental health care field have

made significant improvements in the diagnosis, description and treatment of emotional distress”--as

establishing a requirement that such claims must be proven by expert testimony. See Corgan, 143

Ill. 2d at 311-12, 574 N.E.2d at 609. Defendant notes that the Second District Appellate Court has

interpreted the language from Corgan as establishing such a requirement. See Hiscott v. Peters, 324

Ill. App. 3d 114, 126-27, 754 N.E.2d 839, 850-51 (2001).


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        Plaintiff cites the fact that the supreme court adopted a general-negligence approach in

Corgan and points to the supreme court’s statement in that decision that it had “not lost its faith in

the ability of jurors to fairly determine what is, and is not, emotional distress” as support for her

argument that Illinois does not require expert testimony to establish negligent infliction of emotional

distress. See Corgan, 143 Ill. 2d at 312, 574 N.E.2d at 609. Plaintiff notes that the Fifth District

Appellate Court has interpreted the language from Corgan as establishing a rule that expert testimony

is not required to prove emotional distress claims. See Clark v. Owens-Brockway Glass Container,

Inc., 297 Ill. App. 3d 694, 701, 697 N.E.2d 743, 748 (1998) (addressing an issue of damages for

emotional distress raised in the context of a retaliatory discharge case).

        We believe that the sounder approach to this issue is that adopted by the Fifth District

Appellate Court. Accordingly, we hold that in general, Illinois law does not require expert testimony

to prove claims of negligent infliction of emotional distress. See Clark, 297 Ill. App. 3d at 701, 697

N.E.2d at 748; Bristow v. Drake Street Inc., 41 F.3d 345, 350 (7th Cir. 1994) (plaintiff not required

to consult a psychiatrist or to present medical evidence to establish a claim of tortious infliction of

emotional distress). Thus, we conclude that unlike a medical malpractice claim, a claim for

emotional distress pursuant to a general-negligence approach, does not require expert testimony in

order for the jurors to make their determination. Such a conclusion is consistent with our supreme

court’s application of a general-negligence approach to a direct victim’s claims of negligent infliction

of emotional distress. See Corgan, 143 Ill. 2d at 306, 574 N.E.2d at 606. We therefore reject

defendant’s argument on this issue.

        As his next point of contention on appeal, defendant argues that his motion for judgment

notwithstanding the verdict should have been granted because the verdict against him in the second

trial violates the single-recovery rule. Specifically, defendant contends that plaintiff suffered a single

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emotional-distress injury, that the jury in the first trial determined the amount of plaintiff’s damages

for that injury, that plaintiff did not appeal that determination, that plaintiff accepted full payment

in satisfaction of the judgment amount, and that plaintiff cannot now seek additional damages (a

second recovery) from defendant for that same injury. Plaintiff argues that defendant has waived this

assertion by failing to raise it at any time prior to filing of the posttrial motion, that defendant’s

assertion is inconsistent with the Joint Tortfeasor Contribution Act (740 ILCS 100/0.01 et seq. (West

2006)), and that the second verdict does not violate the single-recovery rule because the jury in the

second trial could have found that the negligent infliction of emotional distress claim against

defendant was a separate injury.

          As noted above, a trial court’s ruling on a motion for judgment notwithstanding the verdict

is subject to a de novo standard of review. McClure, 188 Ill. 2d at 132, 720 N.E.2d at 257. The

motion should only be granted where the evidence and inferences therefrom viewed in the light most

favorable to the nonmoving party so overwhelmingly favors the movant that no contrary verdict

based on that evidence could ever stand. Maple, 151 Ill. 2d at 453, 603 N.E.2d at 512.

          The single-recovery rule provides that when a plaintiff has been awarded damages in a

lawsuit against one tortfeasor and then seeks to hold a second tortfeasor liable for the same injury

in a subsequent lawsuit, the plaintiff is estopped by the former adjudication from recovering an

amount of damages greater than that awarded in the first lawsuit. Bodam v. City of Chicago, 241

Ill. App. 3d 937, 941, 609 N.E.2d 802, 805 (1993). In addition, if the plaintiff has been fully

compensated for that injury, he has no further negligence cause of action against another party for

that same injury because his claim at that point lacks the essential element of damages. Saichek v.

Lupa, 204 Ill. 2d 127, 137, 787 N.E.2d 827, 833 (2003); Bodam, 241 Ill. App. at 941, 609 N.E.2d

at 805.

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        Before we apply the single-recovery rule in the present case, we must consider plaintiff’s

argument that defendant has waived this assertion by failing to raise it in the trial court at any time

prior to the post-trial motion filed after the second trial. In light of the extensive procedural history

in this case, we agree with plaintiff’s waiver argument. A party cannot sit on its hands, let perceived

errors into the record, and then complain of those errors for the first time in a post-trial motion.

Moller v. Lipov, 368 Ill. App. 3d 333, 342, 856 N.E.2d 664, 673 (2006). Defendant did not raise

the single-recovery rule during the post-trial phase of the first trial (after the settlement occurred),

during the first appeal, during the pre-trial phase of the second trial, or at any time during the second

trial. In addition, defendant’s own jury instruction was the verdict form upon which the jury returned

its verdict for plaintiff in the second trial. Had defendant asserted this issue at the second trial,

plaintiff may have opted to submit a claim of intentional infliction of emotional distress to the jury.

Under these circumstances, we find that defendant has waived for appeal his argument regarding the

single-recovery rule. See Moller, 368 Ill. App. 3d at 342, 856 N.E.2d at 673. Having reached that

conclusion, we need not address plaintiff’s other arguments on this point.

        As his third point of contention on appeal, defendant argues that trial court erred in denying

his post-trial request for setoff. Defendant asserts that plaintiff received a judgment for a single

injury of emotional distress, which was paid by the hospital in full, and must be setoff against the

$700,000 in damages awarded by the jury for that same injury. Plaintiff argues that the prior

judgment was not paid, but rather that plaintiff settled all claims against the hospital and the nurses

for $175,000, and that defendant is not entitled to setoff because he has failed to show what portion

of that settlement is allocable to plaintiff’s claim of emotional distress.

        It is well settled that an injured plaintiff may receive only one full compensation for his or

her injuries. Pasquale v. Speed Products Engineering, 166 Ill. 2d 337, 368, 654 N.E.2d 1365, 1381

                                                   8
(1995); Klier v. Siegel, 200 Ill. App. 3d 121, 127, 558 N.E.2d 583, 588 (1990). Double recovery

for the same injury is not allowed. Klier, 200 Ill. App. 3d at 127, 558 N.E.2d at 588. Where a

plaintiff has suffered a single injury caused by the negligence of multiple defendants, any amounts

received for that same injury from any of the defendants, as the result of a judgment or a settlement,

must be deducted or setoff from the total amount of damages sustained. See Barkei v. Delnor

Hospital, 207 Ill. App. 3d 255, 265, 565 N.E.2d 708, 713-14 (1990); 740 ILCS 100/2(c) (West

2006). This setoff prevents the plaintiff from receiving a double recovery. Pasquale, 166 Ill. 2d at

368, 654 N.E.2d at 1381-82. The determination as to which of several claims a settlement award

should be attributed to for the purposes of setoff is a matter within the sound discretion of the trial

court and should not be reversed on appeal absent an abuse of discretion. Pasquale, 166 Ill. 2d at

369, 654 N.E.2d at 1382. The party seeking setoff has the burden of proving what portion of a prior

settlement was allocated or attributable to the claim for which he or she is liable. Pasquale, 166 Ill.

2d at 369, 654 N.E.2d at 1382. A court considering a request for setoff will not speculate about such

matters and will deny the request if the party seeking setoff has failed in that burden. See Dolan v.

Gawlicki, 256 Ill. App. 3d 153, 156-57, 628 N.E.2d 1188, 1190-92 (1994).

        In the present case, we agree with plaintiff’s assessment that the $175,000 payment was part

of a settlement agreement, rather than the mere payment of the prior judgment. At the time of the

settlement agreement, plaintiff had filed her posttrial motion challenging the verdict in the first trial.

At that point, all of plaintiff’s claims against each of the defendants, both individually and on behalf

of the estate, were still active for the purposes of further review. Plaintiff and the nurses and the

hospital entered into a settlement to avoid the uncertainty of an appeal and to establish a final

resolution of those claims. The settlement agreement specifically provided that plaintiff was not

settling her claims against the instant defendant and could pursue those claims further. Defendant

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has made no showing as to what portion of the $175,000 settlement is allocable to plaintiff’s

emotional distress claim. This court will not speculate as to a proper allocation. See Dolan, 256 Ill.

App. 3d at 155, 628 N.E.2d at 1189-91. Defendant’s request for setoff, therefore, was properly

denied.

          For the foregoing reasons, we affirm the judgment of the circuit court of Will County.

          Affirmed.

          HOLDRIDGE J. and MCDADE, P. J. concurring.




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