                                                                          Fourth Division
                                                                          December 28, 2006




No. 1-04-1477




WANDA MACK and REX T. FURLOUGH, SR.,                              )       Appeal from the
as Independent Administrators of the Estate of                    )       Circuit Court of
Eloise Warren, Deceased,                                          )       Cook County.
                                                                  )
                        Plaintiffs-Appellants,                    )
                                                                  )
                v.                                                )
                                                                  )
KENNETH ANDERSON III, Individually and as                         )       No. 00 L 2059
an Agent and/or Employee of Anderson Surgical                     )
Group, S.C.; JUDITH KEDDINGTON,                                   )
Individually and as an Agent and/or Employee of                   )
Anderson Surgical Group, S.C.; ANDERSON                           )
SURGICAL GROUP, S.C.,                                             )       Honorable
                                                                  )       Donald M. Devlin,
                        Defendants-Appellees.                     )       Judge Presiding.


        JUSTICE NEVILLE delivered the opinion of the court:

        Wanda Mack and Rex Furlough, Sr., the independent administrators of Eloise Warren's estate (the

plaintiffs), filed a medical malpractice action in the circuit court for wrongful death and named as defendants

Dr. Kenneth Anderson, Dr. Judith Keddington, and Anderson Surgical Group, S.C., individually and as agents

of SSM Health Care Corporation, doing business as St. Francis Hospital and Health Center (St. Francis

Hospital), (the defendants). After a jury trial, a judgment was entered for the defendants. On appeal, the

plaintiffs present the following three issues for our review: (1) whether the trial court erred and violated Batson

v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), when the plaintiffs and the defendants were

given five peremptory challenges but the defendants used their five peremptory challenges to remove five black

jurors from the jury; (2) whether the trial court erred when it instructed the jury with Illinois Pattern Jury



                                                       -1-
1-04-1477


Instructions, Civil, No. 12.05 (2005 ed.) (hereinafter IPI Civil (2005); and (3) whether the trial court erred when

it denied the plaintiffs' motion for judgment notwithstanding the verdict.

                                                BACKGROUND

        This opinion only involves a discussion of those facts that the court needs to address the issues

presented in this appeal. On April 26, 1999, Ms. Warren was admitted to St. Francis Hospital for the purpose

of having a laparoscopic Nissen fundoplication performed to help alleviate her acid reflux condition. Dr.

Anderson and Dr. Keddington performed the laparoscopic Nissen fundoplication procedure.                 After the

operation, Ms. Warren began to experience swelling in her neck and tightness in her chest. Between April 27

and May 7, 1999, Ms. Warren underwent a series of tests and Xrays to diagnose the problems she was

experiencing. On May 7, 1999, Dr. Anderson and Dr. Keddington performed a laparotomy on Ms. Warren to

repair a perforation of the anterior wall of her stomach, which occurred during the initial laparoscopic Nissen

fundoplication on April 26, 1999. On May 9, 1999, Ms. Warren underwent another chest Xray which revealed

extensive subcutaneous emphysema. Shortly thereafter, another operation was performed to relieve a right

tension pneumothorax that had developed in her chest. On May 10, 1999, two weeks after she underwent the

laparoscopic Nissen fundoplication surgery, Ms. Warren suffered a cardiac arrest and died.              Mack and

Furlough, the independent administrators of Ms. Warren's estate, filed a complaint for wrongful death and

named Dr. Anderson, Dr. Keddington, and St. Francis Hospital as defendants.

                                                  Jury Selection

        On August 19, 2003, jury selection began.         The plaintiffs and defendants were each given five

peremptory challenges. Jury selection culminated in the following 12 jurors being selected: Panel 1: Patricia

Cahill, Deanne MacDonald, John Labranche, and Sharonda Holmes; while selecting the second panel of jurors,

prospective juror Raymond Riley was challenged and excused by Dr. Anderson's attorney; Panel 2: Claudia

Hurtado, Irene Correa, Michael Sietsema, and Lois Hervai; and Panel 3: Mary Ellen Quarles, Mary Strotman,

Robert Blafka, and Raymond Davies.


                                                       -2-
1-04-1477


        After the three panels of jurors were selected by the parties, the court began selecting the alternates and

the following colloquy took place:

                         "THE COURT: *** Panel now to the plaintiffs is Collins, and Larry

                Stewart, the ramp worker at O'Hare.

                         MR. ROGERS: Plaintiff tenders.

                         THE COURT: All right. Anderson, you are tendered Norma Collins

                and Larry Stewart.

                         MR. LURA: Anderson will use his last strike on Larry Stewart, your

                Honor.

                         THE COURT: Very well.         The panel to you now is Collins and

                Bowman, and that goes to Keddington. Keddington?

                                                       ***

                         MR. LANGHENRY: Your Honor, I'm going to excuse Ms. Collins.

                         THE COURT: Keddington excuses Collins. All right. The panel to

                you now is Bowman and Barry.

                                                       ***

                         THE COURT: Again, I don't – there was no representation here. He

                consulted with Mr. Rogers and there was no attorney/client relationship

                established. No, I'm not going to excuse for cause.

                         MR. LANGHENRY: I move to excuse Mr. Barry.

                         THE COURT: Mr. Barry, who's doing this?

                         MR. LURA: Keddington.

                         MR. LANGHENRY: Keddington.

                         THE COURT: Mr. Barry is excused by Keddington.                All right.


                                                       -3-
1-04-1477


                Hospital, the panel to you now is Latonya Bowman and Orlassia Sims.

                         MS. ENRIGHT: I'll strike Sims, your Honor.

                         THE COURT: Very well. Panel to you is Bowman and Seals.

                         MS. ENRIGHT: I'll accept that, your Honor."

                                   THE PLAINTIFFS' BATSON MOTION

                                        Step One of the Batson Hearing

        After the alternates Latonya Bowman and Roger Seals were tendered to the plaintiffs, the plaintiffs'

attorney made a motion, pursuant to Batson, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, arguing that the

defendants had used their peremptory challenges to exclude five black jurors from the jury. The plaintiffs'

counsel argued that "[e]very single juror that the defendants have stricken has been African American." The

black jurors excused by the defendants were: (1) Raymond Riley, (2) Larry Stewart, (3) Norma Collins, (4)

Ruben Barry, and (5) Orlassia Sims. The trial court noted that Dr. Anderson's counsel used his peremptory

challenges to exclude Riley and Stewart; Dr. Keddington's counsel used her peremptory challenges to exclude

Collins and Barry; and the hospital used its peremptory challenge to exclude Sims. The trial court then stated

that "in terms of the procedure here, I believe the defendants are required to give me a race neutral reason for

each of these challenges."     The defendants argued that the plaintiffs failed to establish a pattern of

discrimination because three of the jurors, John Labranche, Sharonda Holmes, and Mary Ellen Quarles,

accepted by the defendants were African-Americans. The court stated that all of the defendants' peremptory

challenges had been exercised against African-Americans and that the defendants had to provide a race-neutral

reason for their exclusion.

                                       Step Two of the Batson Hearing

                                                Raymond Riley

        One of the defendants' attorneys noted that during voir dire, he had expressed concern about Raymond

Riley. The defendants' attorney stated that Riley never looked up or made eye contact with the attorneys when


                                                      -4-
1-04-1477


being questioned and one defense attorney opined that he might be a "goofball" juror. Plaintiffs' attorney stated

that he did not think Riley was a "goofball."

        During additional questioning in chambers, Riley stated that he had a high school education; that he has

worked in various jobs since graduating high school in 1977; and that he was not having any problems

understanding the nature of the proceedings. At the conclusion of the questioning, the trial judge stated that he

did not think Riley was a "goofball," and that he did not think that Riley is "the type that's going to be

obstructionist back there in the jury room." Defense counsel, when providing a race-neutral reason, reiterated

his concern that Riley would be a "border-line goof juror" due to his lack of eye contact and the fact that his

personality type was not suited for sitting on a medical malpractice jury.

                                                    Larry Stewart

        When discussing venireman Larry Stewart, one of the defendants' attorneys stated that he was excluded

because he nodded his head when plaintiffs' counsel posed a question to the venire about awarding damages.

Defense counsel stated that when plaintiffs' counsel asked the panel about damages, Stewart was "nodding his

head yes, yes, yes, yes before the question was even out of his mouth." Defense counsel stated that "granted

these jurors have heard all of our questions before, but given the affirmance that he awards millions of dollars, I

can't afford to have Mr. Stewart on this jury."

                                                   Norma Collins

        When Norma Collins was questioned during voir dire, the trial judge asked whether she had been a

party to a lawsuit. She replied that she was involved in a worker's compensation case. The trial judge then

stated "[o]ne thing everybody should understand is that the worker's compensation system is totally different

than this. It has different rules, different regulations, different structure, totally different." The trial judge said

to Collins "so can you just forget about that," and Collins responded "yes."

        While providing the court with a race-neutral reason for excluding Collins, the defendants' attorney

cited her worker's compensation injury claim. The defendants' attorney stated that in his view she talked about


                                                         -5-
1-04-1477


the matter as if it was "a real positive thing." Defense counsel opined that Collins was a very litigious person.

Defense counsel also stated that he observed all the jurors in Collins' group during the questions involving

damages and that Collins silently nodded during that time.

                                                  Ruben Barry

        During voir dire, venireman Ruben Barry mentioned that he met with and consulted with the plaintiffs'

attorney (Larry Rogers) sometime in 1994 regarding plaintiffs' counsel's possible representation in a wrongful

death lawsuit. Barry stated that although he met with plaintiffs' attorney, he did not retain him on the case.

Barry stated that he had not formed any opinions about plaintiffs' attorney or his firm that would impair his

ability to be fair and impartial in this case. When defense counsel asked whether he met with plaintiffs' counsel

based on recommendations, Barry stated he could not remember how he initially received plaintiffs' counsel's

name to contact him.

        Defense counsel stated that he was concerned because Barry does not know any of the defense

attorneys and that perhaps the plaintiffs' counsel would get "a little bit of a leg up because of your past

relationship with him." Barry responded that he understood the concern, but that "the opposite could be true

also, that he's got a leg down because we didn't go to him." The trial judge stated that he did not see anything

wrong with having Barry on the jury.        When providing a race-neutral reason for excluding Barry, the

defendants' attorney repeated that his acquaintance with the plaintiffs' attorney was the reason for excluding

him.

                                                 Orlassia Sims

        When asked to provide a race-neutral reason for excluding venirewoman Orlassia Sims, the defendants'

attorney stated that his only observation of Sims was that "I was watching her while we were waiting for

selection, it appeared to me that she was disinterested in the proceedings that we were going through. I was

concerned that she wouldn't be motivated to pay attention during the case."

                                       Step Three of the Batson Hearing


                                                      -6-
1-04-1477


        After the defendants’ attorneys provided their reasons for excluding the five African-American

venirepersons, plaintiffs' counsel argued that although the defendants' attorneys argued that they observed the

potential jurors nodding their heads, none of the defense attorneys chose to question any of the venirepersons

about what they observed. Plaintiffs' counsel also argued that the record does not reflect that the venirepersons

were nodding in response to some questions. Plaintiffs' counsel argued that he did not observe any of the

alleged head-nodding and that, if anything, the record reflects that there was no bias on behalf of the

venirepersons. The trial court denied the plaintiffs' Batson motion stating,"well, we've also seen jurors. We

have all noticed body language with people. Sometimes that body language is favorable to us and sometimes

it's not." The trial court stated that the defendants' attorneys provided race-neutral reasons for challenging the

African-American venirepersons who were excluded from the jury. Finally, after the trial court denied the

plaintiffs' Batson motion, the plaintiffs challenged Bowman, and Seals and Blameuser were accepted as

alternate jurors by the parties.

                                                      The Trial

        The case proceeded to trial on August 21, 2003. The plaintiffs presented the following witnesses: Dr.

Yong Khu Choe, Dr. Shaku Teas, nurse James Ulaszek, Dr. Anderson, Rex Furlough, Etta Furlough, Gloria

Adams, Patricia Perry, Dr. Keddington, Dr. Stuart Gourlay, and Mary Furlough. The defense presented the

following witnesses: Dr. Anderson, Dr. Keddington, Dr. Robert Fitzgibbons, Jr., and Dr. Shaku Teas. On

September 2, 2003, the jury returned a general verdict in favor of Dr. Anderson, Dr. Keddington, and St.

Francis Hospital, finding that the defendants were not negligent and/or that nothing the defendants did or failed

to do proximately caused Ms. Warren's death. On September 3, 2003, the trial court entered a judgment on the

verdict. The plaintiffs filed a motion seeking a judgment notwithstanding the verdict or a new trial. On April

20, 2004, the trial court denied the plaintiffs' posttrial motion.

                                                     ANALYSIS

                                                      I. Batson


                                                         -7-
1-04-1477


        The plaintiffs' first argument on appeal is that the defendants used their peremptory challenges to

exclude five black jurors from the jury in violation of Batson, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.

The plaintiffs argue that the race-neutral reasons provided by the defendants for excluding the five black jurors

were nothing more than a pretext for racial discrimination. The plaintiffs specifically contest the race-neutral

reasons provided by the defendants’ attorneys for excluding three of the black jurors: Norma Collins, Larry

Stewart, and Orlassia Sims. During the Batson hearing, Dr. Anderson's attorney excluded Stewart because he

nodded his head when the topic of damages was asked of the panel, and the hospital's attorney excluded Sims

because in addition to nodding her head about the topic of damages, she seemed disinterested during the

proceedings. Dr. Keddington's attorney explained that he used a peremptory challenge to exclude Collins

because she filed a worker's compensation claim, because she was viewed to be a litigious person, and because

she silently nodded when the topic of damages was asked of the panel. The plaintiffs contend that the

defendants' objective was to exclude the black jurors from the jury.

        The defendants argue that the trial court correctly ruled that the defendants' reasons for exercising their

peremptory challenges to exclude the black jurors were valid race-neutral reasons. The defendants also argue

that excluding venirepersons based upon their conduct and body language is a race-neutral reason because one

purpose of voir dire is to observe the demeanor of potential jurors. The defendants argue that the plaintiffs

have failed to demonstrate that their race-neutral reasons for excluding the black jurors was not genuine.

Furthermore, the defendants contend that the record refutes the plaintiffs claim of racial discrimination because

although they had peremptory challenges they could have exercised, (1) the defendants permitted three African-

Americans to remain on the jury, and (2) the defendants accepted an African-American as an alternate, but she

was excluded by the plaintiffs' attorney.

        In Batson, the United States Supreme Court held that, in a criminal case, the fourteenth amendment's

equal protection clause prohibits a prosecutor from using a peremptory challenge to exclude a prospective juror

solely on the basis of his or her race. Batson, 476 U.S. at 89, 90 L. Ed. 2d at 83, 106 S. Ct. at 1719. Under


                                                       -8-
1-04-1477


Batson, the equal protection clause is violated when the facts show that the State excluded an African-American

venireperson on the assumption that he or she will be biased in favor of defendant simply because of their

shared race. Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723. In Powers v. Ohio, 499 U.S. 400,

113 L. Ed. 2d 411, 111 S. Ct. 1364 (1991), the United States Supreme Court recognized that Batson “was

designed ‘to serve multiple ends,’ ” only one of which was to protect individual defendants from discrimination

in the selection of jurors. Powers, 499 U.S. at 406, 113 L. Ed. 2d at 422, 111 S. Ct. at 1368, citing Allen v.

Hardy, 478 U.S. 255, 259, 92 L. Ed. 2d 199, 205, 106 S. Ct. 2878, 2880 (1986) (per curiam) (quoting Brown v.

Louisiana, 447 U.S. 323, 329, 65 L. Ed. 2d 159, 166, 100 S. Ct. 2214, 2220 (1980)). In addition to protecting

the defendant, Batson sought to protect excluded jurors and the community at large from a prosecutor's

discriminatory use of peremptory challenges. Powers, 499 U.S. at 406, 113 L. Ed. 2d at 422, 111 S. Ct. at 1368,

citing Batson, 476 U.S. at 87, 90 L. Ed. 2d at 81, 106 S. Ct. at 1718. The extension of Batson in this context is

designed to remedy the harm done to the “dignity of persons” and to the “integrity of the courts.” Georgia v.

McCollum, 505 U.S. 42, 48, 120 L. Ed. 2d 33, 44, 112 S. Ct. 2348, 2353 (1992), citing Powers, 499 U.S. at 402,

113 L. Ed. 2d at 419, 111 S. Ct. at 1366.

        The rule announced in Batson -- that the State may not use peremptory challenges to purposefully

exclude jurors based on their race -- applies with equal force to private litigants in civil cases. Edmonson v.

Leesville Concrete Co., 500 U.S. 614, 630, 114 L. Ed. 2d 660, 680, 111 S. Ct. 2077, 2088 (1991); see also

McDonnell v. McPartlin, 192 Ill. 2d 505, 526 (2000); Jones v. Rockford Memorial Hospital, 316 Ill. App. 3d

124, 127 (2000). The Batson Court provided a three-step process for evaluating claims of discrimination in jury

selection. Rice v. Collins, 546 U.S. _, _, 163 L. Ed. 2d 824, 831, 126 S. Ct. 969, 973 (2006). First, the moving

party must meet his burden of making a prima facie showing that the nonmoving party exercised its peremptory

challenge on the basis of race. Rice, 546 U.S. at _, 163 L. Ed. 2d at 831, 126 S. Ct. at 973, citing Batson, 476

U.S. at 96-97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723; People v. Easley, 192 Ill. 2d 307, 323 (2000). If a prima

facie case is made, the process moves to the second step where the burden then shifts to the nonmoving party to


                                                      -9-
1-04-1477


articulate a race-neutral explanation for excusing the venireperson. Rice, 546 U.S. at _, 163 L. Ed. 2d at 831,

126 S. Ct. at 973, citing Batson, 476 U.S. at 97-98, 90 L. Ed. 2d at 88, 106 S. Ct. 1723; see also Easley, 192 Ill.

2d at 323-24. Once the nonmoving party articulates its reasons for excusing the venireperson in question, the

process moves to the third step, where the trial court must determine whether the moving party has carried his

burden of establishing purposeful discrimination. Rice, 546 U.S. at _, 163 L. Ed. 2d at 831, 126 S. Ct. at 973,

citing Batson, 476 U.S. at 98, 90 L. Ed. 2d at 88-89, 106 S. Ct. at 1724. At the third step, the trial court

evaluates the reasons provided by the nonmoving party as well as claims by the moving party that the proffered

reasons are pretextual. Rice, 546 U.S. at _, 163 L. Ed. 2d at 831, 126 S. Ct. at 973; People v. Davis, 345 Ill.

App. 3d 901, 906 (2004), citing People v. Pecor, 286 Ill. App. 3d 71, 74 (1996).

                                            A. The Prima Facie Case

        According to Batson, in order to establish a prima facie case of purposeful discrimination in the

exercise of its peremptory challenges, the moving party, here the plaintiffs, must present facts and any other

relevant circumstances which raise an inference that the prosecutor, the defendants' attorneys in this case,

challenged venirepersons on account of their race.     Batson, 476 U.S. at 96, 90 L. Ed. 2d at 88, 106 S. Ct. at

1723. Some of the factors generally deemed relevant in establishing a prima facie case of discrimination

include: (1) the racial identity between the moving party and the excluded venireperson; (2) a pattern of strikes

against African-American venirepersons; (3) a disproportionate use of peremptory challenges against

African-American venirepersons; (4) the level of African-American representation in the venire as compared to

the jury; (5) the prosecutor's questions and statements during voir dire examination and while exercising

peremptory challenges; (6) whether the excluded African-American venirepersons were a heterogenous group

sharing race as their only common characteristic; and (7) the race of the moving party, victim, and witnesses.

People v. Williams, 173 Ill. 2d 48, 71 (1996). These examples of the generally recognized relevant factors or

circumstances are “merely illustrative,” and are not all inclusive. Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88,

106 S. Ct. at 1723; People v. Holman, 132 Ill. 2d 128, 173 (1989).


                                                      - 10 -
1-04-1477


        In this case, although the trial court did not specifically state that the plaintiffs presented a prima facie

case of racial discrimination, it stated that based upon the Batson procedural rules, the defendants had to

provide a race-neutral reason for excusing the African-American venirepersons. We note that the venireman

Raymond Riley, a black juror, was challenged and removed by Dr. Anderson's attorney while the parties were

selecting the second panel of jurors. We also note that the defendants exercised four successive peremptory

challenges to remove the following black prospective jurors from the jury: Larry Stewart, Norma Collins,

Ruben Barry and Orlassia Sims. In addition, we note a racial identity between the plaintiffs, the moving parties,

and the five black jurors that were excused; we note a pattern of strikes because four of the five black jurors

were challenged in succession by the defendants; and we note a disproportionate number of peremptory

challenges were exercised by the defendants against one group of jurors, the black jurors, because 100% of the

defendants' peremptory challenges were exercised against black jurors. Consequently, we note that once the

defendants exercised their five peremptory challenges and excluded the five black jurors and the plaintiffs’

attorney made his Batson motion, the trial court conducted a Batson hearing.

                                B. Defendants' Proffered Race-Neutral Reasons

        Our review now turns to the second step in the Batson procedure to determine whether the defendants'

reasons for excluding the African-American venirepersons were race-neutral. We note that the question of

whether the plaintiffs have established a prima facie case of discrimination becomes a moot point once the trial

court rules on the ultimate question and finds valid, race-neutral reasons supporting the peremptory challenges.

People v. Rivera, 221 Ill. 2d 481 (2006); see also People v. Hudson, 157 Ill. 2d 401, 427-28 (1993), citing

People v. Mitchell, 152 Ill. 2d 274, 289 (1992) (“[T]his court has recently held that once the trial court rules on

the ultimate question of discrimination, the question of whether the defendant established a prima facie case

became moot”). We also note that the explanation for excusing a venireperson need not rise to the level of a

challenge for cause; however, a mere assertion of nondiscriminatory motive or of good faith will not rebut a

prima facie case. People v. Andrews, 155 Ill. 2d 286, 293 (1993); see also Davis, 345 Ill. App. 3d at 911 (the


                                                       - 11 -
1-04-1477


trial court should not give rubber-stamp approval to offered nonracial explanations). The explanation must be

clear and reasonably specific, it must contain legitimate reasons for exercising the challenge, and it must be

related to the particular case to be tried. Batson, 476 U.S. at 98 & n. 20, 90 L. Ed. 2d at 88-89 & n. 20, 106 S.

Ct. at 1723-24 & n. 20; Davis, 345 Ill. App. 3d at 911, citing People v. Allen, 168 Ill. App. 3d 397, 404 (1987).

The explanation must demonstrate that the excluded venireperson exhibited a “specific bias” related to the

particular cause on trial, other than that his or her shared race with a party may bias him or her in favor of that

party. Andrews, 155 Ill. 2d at 293. We also note that there will seldom be much evidence bearing upon the

ultimate question of discrimination and the “ 'best evidence often will be the demeanor of the attorney who

exercises the challenge.' ” People v. Rivera, 221 Ill. 2d 481, 852 N.E. 2d 771, 784 (2006), quoting Hernandez v.

New York, 500 U.S. 352, 365, 114 L. Ed. 2d 395, 409, 111 S. Ct. 1859, 1869 (1991). The evaluation of the

attorney's state of mind is most often based on demeanor and credibility, which lies within the trial judge's

province. Hernandez, 500 U.S. at 365, 114 L. Ed. 2d at 409, 111 S. Ct. at 1869, quoting Wainwright v. Witt,

469 U.S. 412, 428, 83 L. Ed. 2d 841, 854, 105 S. Ct. 844, 854 (1985). The trial court's finding of whether

purposeful discrimination has been proved is a finding of fact and will not be overturned on review unless it is

found to be clearly erroneous. Hernandez, 500 U.S. at 365, 114 L. Ed. 2d at 409, 111 S. Ct. at 1869; Andrews,

155 Ill. 2d at 293-94.

        In this case, while five black jurors were excluded by the defendants’ attorneys, the plaintiffs argue that

only three of the black jurors were excluded for reasons that were not valid or race-neutral. The plaintiffs

specifically object to the defendants exercising their peremptory challenges against venirepersons Larry

Stewart, Norma Collins, and Orlassia Sims. Therefore, we limit our consideration in this case to the three

aforementioned black jurors that were excused by the defendants.

        The defendants explained that they excluded Stewart because he nodded his head when the topic of

damages was asked of the panel, and Sims was excluded because in addition to nodding her head about the

topic of damages, she seemed disinterested during the proceedings. The defendants explained that they


                                                       - 12 -
1-04-1477


exercised a peremptory challenge to exclude Collins because she filed a worker's compensation claim, because

she was considered to be a litigious person, and because she silently nodded when the topic of damages was

asked of the panel.



                                     C. The Trial Court’s Batson Findings

        The trial court accepted the defendants' reasons for excluding the black jurors and denied the plaintiffs'

Batson motion stating, "Well, we've also seen jurors.          We have all noticed body language with people.

Sometimes that body language is favorable to us and sometimes it's not." The trial court found that "[i]n terms

of Mr. Stewart, Ms. Collins, and Ms. Sims, the [defendants] concerns seem to be their attitudes toward

damages, which I believe is a race neutral reason." The trial court stated that there was no Batson violation

because the defendants' attorneys provided race-neutral reasons for excluding the five black jurors from the

jury.

                                  II. Evaluation of the Trial Court’s Findings

        Now, we review the trial court’s findings at the conclusion of the third step of its Batson hearing. The

question that must be answered during the third step of Batson is whether the plaintiffs carried their burden of

proving purposeful discrimination. Miller-El v. Cockrell, 537 U.S. 322, 338, 154 L. Ed. 2d 931, 951, 123 S. Ct.

1029, 1040 (2003). Here, the critical question in determining whether the plaintiffs have proved purposeful

discrimination at the third step is the persuasiveness of the defendants’ explanations for exercising their

peremptory challenges against three of the five black jurors. Cockrell, 537 U.S. at 338-39, 154 L. Ed. 2d at

951, 123 S. Ct. at 1040. The plaintiffs maintain that the defendants were given five peremptory challenges and

they were all exercised against black jurors. At this step, “implausible or fantastic justifications may (and

probably will) be found to be pretexts for purposeful discrimination.” Cockrell, 537 U.S. at 339, 154 L. Ed. 2d

at 951, 123 S. Ct. at 1040, quoting Purkett v. Elem, 514 U.S. 765, 768, 131 L. Ed. 2d 834, 839, 115 S. Ct. 1769,

1771 (1995). The issue comes down to whether the trial court finds the race-neutral explanations to be


                                                      - 13 -
1-04-1477


credible. Cockrell, 537 U.S. at 339, 154 L. Ed. 2d at 951, 123 S. Ct. at 1040. A legitimate race-neutral reason

is not a reason that makes sense, but a reason that does not deny equal protection. Purkett, 514 U.S. at 769, 131

L. Ed. 2d at 840, 115 S. Ct. at 1771. We must determine, by examining the record, whether the trial court's

factual determination --- that the plaintiffs offered valid race-neutral reasons for excluding the five Africa-

American venirepersons --- was clearly erroneous. Hernandez, 500 U.S. at 364-66, 114 L. Ed. 2d at 409, 111 S.

Ct. at 1869; Andrews, 155 Ill. 2d at 293-94.

                                                A. Larry Stewart

        When considering venireperson Larry Stewart, the defendants stated that they used a peremptory

challenge to exclude him from the jury because when the plaintiffs questioned the panel about whether they

could award a million dollars, Stewart was "nodding his head yes, yes, yes, yes before the question was even

out of his mouth." The defendants' attorney challenged Stewart based upon his observations of Stewart. We

note that while demeanor has been found to be a legitimate race-neutral reason for exercising a peremptory

challenge (Rice, 546 U.S. _, 163 L. Ed. 2d 824, 126 S. Ct. 969 (the prosecutor's grounds for peremptory

challenge of juror based on her demeanor, although not witnessed by the judge, were sufficient and will be

given deference where reasonable)), such explanations must be closely scrutinized. Easley, 192 Ill. 2d at 327.

The Illinois Supreme Court has recognized that a person's demeanor is a subjective assessment that should be

given close scrutiny because such perceptions may easily be used as a pretext for discrimination. People v.

Williams, 209 Ill. 2d 227, 245 (2004), citing People v. Wiley, 165 Ill. 2d 259, 274-75 (1995). In reviewing a

proffered race-neutral explanation for excluding a venireperson, we "are not to close our eyes as judges to what

we must perceive as men." People v. Randall, 283 Ill. App. 3d 1019, 1026 (1996), quoting People v. Knapp,

230 N.Y. 48, 63, 129 N.E. 202, 208 (1920). Courts must also determine whether the explanation demonstrates

that the excluded venireperson exhibited a “specific bias” related to the particular case, other than that his or

her shared race with a party may bias him or her in favor of that party. Andrews, 155 Ill. 2d at 293.

        Here, defense counsel stated that Stewart nodded his head when the plaintiffs' attorney asked the venire


                                                      - 14 -
1-04-1477


about awarding damages. We note that the record establishes that, during voir dire, all the jurors were observed

nodding or shaking their heads.

        First, while questioning the first 12 prospective jurors (Mark Baker, Patricia Cahill, Elizabeth Craig,

Deanne McCannon, Sean McDonald, John LaBranche, Jodi Whitney, Chris Mariano, Robin Young, Sharonda

Holmes, Pawel Kanaga, and Claudia Hurtado), including Cahill, McDonald, LaBranche, Holmes, and Hurtado,

who served on the jury, these jurors were asked the following question by the plaintiffs' attorney:

                        "MR. ROGERS: *** Both sides start out evenly before you've heard

                any of the evidence?

                        PROSPECTIVE VENIRE: (Nodding head up and down.)"

        While questioning the second set of 12 prospective jurors (Irene Correa, Matthew Sinde, Jr., Raymond

Riley, Michael Sietsema, Jennie Blameuser, Lois Hervai, Patricia Fairchild, Corrine Richmond, Mary Ella

Quarles, Joseph Hynes, Mary Strotman, and James Walter), including Correa, Sietsema, Hervai, Quarles, and

Strotman who served as jurors, these jurors were asked the following questions by Mr. Rogers, the plaintiffs'

attorney:

                        "MR. ROGERS: *** And all of you can follow the law as Judge

                Devlin gives it to you even if you disagree with the law?

                                                           (Nodding Heads.)

                        Anyone have any problem with that?

                                                           (Shaking heads.)

                        And, lastly, if the law and evidence supported it, could all of you sign a

                verdict form for many millions of dollars if you feel it's fair and reasonable

                compensation for the death in this case?

                                                           (Nodding heads.)"

        Then, Mr. Lura, one of the defendants' attorneys, asked the following questions:


                                                      - 15 -
1-04-1477


                          "MR. LURA: Thank you. Mr. Sinde, well, before I get to you, the

                exact opposite question that Mr. Rogers asked each of you, there's no question

                there's a tragedy here, but if the plaintiff does not prove their case or prove that

                the physicians caused the death, is anybody here going to be so overwhelmed

                by the tragedy that they won't be able to send the family home with no money

                at all?

                                                          (Shaking heads.)

                          Will you be able to sign verdicts on behalf of the doctors and the

                hospital?

                                                          (Nodding heads.)

                          Anybody have a problem with that?

                                                          (Shaking heads.)

                          No? Okay."

        Finally, the third group of 12 prospective jurors (Robert Blafka, Raymond Davies, Carmen Santiago,

Barbara Murray, Nora Collins, Ramon Ruiz, Larry Stewart, Latonya Bowman, Ruben Barry, Jr., Orlassia Sims,

Carol Nicolosi, and Roger Seals), including Blafka and Davies, who served as jurors, were asked the following

questions by the court:

                          "THE COURT: *** Okay. If the plaintiffs over here prove their case,

                plaintiffs prove their case, do any of you have any hesitation of signing a

                verdict in favor of the plaintiffs? Any hesitation at all?

                                                          (Shaking heads.)

                          If they fail to prove their case, would anyone have any hesitation to

                signing a verdict for the defendants over there?

                                                          (Shaking heads.)


                                                       - 16 -
1-04-1477


                        Okay. Now, again, let's talk about damages. You heard me say this

                morning that the jury basically has three broad decisions to make: Was there

                negligence, did that negligence cause harm, and if it did, what are the damages

                going to be, damages basically being fair and reasonable compensation.

                Anybody have any problems here in terms of if it comes to that, awarding

                monetary damages? Anybody have any problems with it?

                                                           (Shaking heads.)

                        Does anybody have any set amount in their mind above which they can

                never go? Anybody in terms of that?

                                                           (Shaking heads.)

                        All right. Now, again, let's assume that plaintiffs show that there was

                injury here but they failed to show that that injury was caused by this

                negligence on the part of defendants.

                        Would any of the 12 of you have any hesitation in signing a verdict in

                favor of the defendants even though it would mean the plaintiffs would leave

                this courtroom uncompensated? Anybody?

                                                           (Shaking heads.)"

        Our review of the record simply reveals that the panel responded to the court's, plaintiffs' and

defendants' counsel's questions by nodding or shaking their heads. We note that such nonverbal actions were

not limited to the questions on damages, but that routinely during voir dire when venirepersons were questioned




                                                        - 17 -
1-04-1477


as a group, there were nonverbal answers including "no verbal response"1 and "laughter."2 We note that the

record establishes that Stewart was not the only juror who nodded or shook his head. We also note that all 36

jurors, who were black and white, nodded or shook their heads when answering group questions. Finally, and

most importantly, we note that the defendants' attorneys did not excuse white jurors who nodded or shook their

heads in response to questions asked of the entire venire.

        Specifically, the record establishes that when plaintiffs' counsel questioned Patricia Cahill, Sean

McDonald, Irene Correa, Michael Sietsema, Lois Hervai, and Mary Strotman, venirepersons selected to sit on

the jury, about damages that these jurors responded by nodding their heads. Indeed, during oral argument, the

defendants’ attorneys admitted that white venirepersons also nodded their head in response to the same question

about damages. However, the defendants’ attorneys did not challenge or exclude white venirepersons who

nodded or shook their heads in response to questions about damages. We find the defendants' explanation for

excluding Stewart to be pretextual and a denial of equal protection because the defendants did not challenge or

exclude white jurors who nodded their heads when asked the same questions about damages; instead, white

jurors who nodded their heads were permitted to serve on the jury.

        We also note that the trial court found that the defendants excluded Stewart, Sims and Collins not

because of their race, black, but because of their “attitudes toward damages,” which the court found to be race

neutral. Given the fact that all the jurors, black and white, nodded or shook their heads when asked a group

question about damages, we have to assume that they all had the same attitude toward damages because the




            1
           "[Defense Counsel:] Does anyone have any medical training of any type that they haven't
   mentioned before?

                                                     (No verbal response.)"
            2
             "THE COURT: All right. Okay. You folks in the jury box please gather up your belongs
   [sic] and those of you who haven't been called yet, you know what's coming.

                                                     (Laughter.)"

                                                      - 18 -
1-04-1477


record establishes they all engaged in the same conduct. Comparing the defendants’ rationale for excluding

Stewart, who nodded his head, and applying the defendants’ rationale to the white jurors, who also nodded their

heads but were permitted to serve on the jury, establishes that race, rather than the jurors' attitudes toward

damages, was the determining factor in which jurors the defendants challenged and which jurors the defendants

permitted to serve on the jury. See Miller-El v. Dretke, 545 U.S. 231, _, 162 L. Ed. 2d 196, 221, 125 S. Ct.

2317, 2332 (2005) ("Comparing his strike with the treatment of panel members who expressed similar views

supports a conclusion that race was significant in determining who was challenged and who was not").

        In light of the fact a person's demeanor may easily be used as a pretext for discrimination (Wiley, 165

Ill. 2d at 274-75), defendants’ attorneys should have asked Stewart, along with the other jurors, questions about

the meaning of his head nodding in order to make a record that could be reviewed by this court. In addition to

failing to make a record by questioning Stewart about his head nodding, the record does not establish that

Stewart exhibited a specific bias related to this case. See Andrews, 155 Ill. 2d at 293. Plaintiffs' counsel's

question and the court’s question to the venire about whether they could award a million dollars in damages

was not an inquiry that asked the venire to make an assessment of the plaintiffs’ case. The damage questions,

by the plaintiffs’ counsel and the court, were an attempt to determine whether the jurors would have any

trepidation about making a million dollar damage award, not whether they would find in plaintiffs' favor.

Conversely, although there was a tragedy in this case, the defendants’ attorneys’ questions and the court’s

questions were designed to determine if the jurors would be reluctant to enter a judgment for the defendants if

the plaintiffs failed to prove their case. All the jurors answered these questions by nodding or shaking their

heads. As a result, we do not believe that Stewart or the white venirepersons who nodded their heads exhibited

any type of bias related to this case, because the same jurors nodded or shook their heads in response to

questions by the defendants’ attorneys and the court.

        In conclusion, given the fact that the record establishes that black and white jurors nodded their heads

when asked questions by the court, plaintiffs and defendants' counsel, we believe that the defendants’ reasons


                                                        - 19 -
1-04-1477


for excluding Stewart were pretextual, and hold that the trial court's finding -- that the defendants were

primarily concerned about the black jurors' attitudes about damages -- was clearly erroneous. We also hold that

the trial court's finding that the defendants offered a valid race-neutral reason for excluding venireperson

Stewart was clearly erroneous because the record establishes that Stewart engaged in the same conduct as white

jurors who were not challenged or excused from the jury. Finally, I hold that venireperson Stewart was denied

equal protection of the laws because he was treated differently from white jurors because the record does not

establish that Stewart exhibited a specific bias toward damages that was not exhibited by white jurors who

nodded their heads but were permitted to serve on the jury.

                                                 B. Orlassia Sims

        When considering venirewoman Orlassia Sims, the defendants' attorneys stated that they used their

peremptory challenge to exclude her from the jury because, like Stewart, she nodded her head when plaintiffs'

counsel asked about awarding damages and in defense counsel's opinion she appeared to be disinterested in the

proceedings. The record establishes that black and white jurors nodded their heads when asked questions about

damages. We find, in this case, that head nodding, standing alone, was not a valid race-neutral reason for

excluding Sims, a black juror, from this jury.

        Now, we turn to the defendants' perception that Sims was disinterested in the proceedings. Defense

counsel stated that he was concerned that Sims would not be motivated to pay attention during the case. Like

head nodding, disinterestedness is a form of conduct or demeanor that may be considered a legitimate

race-neutral reason for the exercise of a peremptory challenge. People v. Gray, 326 Ill. App. 3d 906, 912

(2001), citing People v. Johnson, 218 Ill. App. 3d 967, 986 (1991).              However, like head nodding,

disinterestedness is a subjective assessment that the court is required to give close scrutiny to because such

perceptions may easily be used as a pretext for discrimination. See Williams, 209 Ill. 2d at 245; Wiley, 165 Ill.

2d at 274-75.

        The defendants cite People v. Gray, 326 Ill. App. 3d 906 (2001), to support their position that


                                                      - 20 -
1-04-1477


disinterest is a valid race-neutral reason for excluding a person from the jury. We find the facts in Gray

distinguishable from the facts in this case. At the Batson hearing in Gray, the prosecutor explained that he used

a peremptory challenge to exclude an African-American venirewoman because during the jury selection process

she was checking her watch as she was being questioned and she was looking around the courtroom. Gray, 326

Ill. App. 3d at 912. The prosecutor also stated that the venirewoman indicated that she lived at a senior citizen

home. Gray, 326 Ill. App. 3d at 912. The prosecutor stated that the home was not a normal nursing home and

he was concerned that the venirewoman may have some type of disability. Gray, 326 Ill. App. 3d at 912. The

Gray court found that it was irrelevant whether the venirewoman's lack of interest was due to a disability

because the prosecutor's explanation of her inattentiveness was a valid race-neutral reason for excluding her.

Gray, 326 Ill. App. 3d at 912.

        In this case, unlike Gray, the defendants’ attorney did not make a record by providing a clear and

reasonably specific explanation of what he perceived to be Sims' disinterested behavior.            In Gray, the

prosecutor explained on the record that the venirewoman kept looking at her watch while being questioned and

that she kept looking around the room. In this case, however, the defendants’ attorney made no attempt on the

record to explain the specific conduct that he believed demonstrated that Sims was disinterested in the

proceedings. Here, defense counsel simply stated that she seemed disinterested. Again, we note that conduct

and demeanor must be given close scrutiny because such perceptions may easily be used as a pretext for

discrimination. See Williams, 209 Ill. 2d at 245; Wiley, 165 Ill. 2d at 274-75. In this case, defendants’ attorney

failed to make a record which provided a clear and reasonably specific description of Sims’ behavior that he

believed demonstrated Sims' lack of interest in the case. Batson, 476 U.S. at 98 n.20, 90 L. Ed. 2d at 88 n.20,

106 S. Ct. at 1724 n.20. We find that the record fails to support the defendants’ attorney's race-neutral reasons

for excusing Sims as a juror in the case. Accordingly, I hold that Sims was also denied equal protection of the

laws because, like Stewart, Sims was treated differently from white jurors who nodded their heads when

answering questions about damages but were permitted to serve on the jury by the defendants, and the record


                                                      - 21 -
1-04-1477


failed to reveal any evidence of being disinterested in the case.

                                                C. Norma Collins

        Next, we review the defendants' proffered race-neutral reason for using a peremptory challenge to

exclude venirewoman Norma Collins. Defendants’ attorney stated that he excluded Collins because, like

Stewart and Sims, she nodded her head when plaintiffs' counsel asked the panel about damages. Defendants’

attorney also stated that Collins was excluded because she indicated that she was involved in a worker's

compensation case for an injury she sustained on her job and defense counsel perceived that Collins thought the

lawsuit was a positive thing. Defense counsel stated that he perceived Collins to be a litigious person. The

record establishes that when asked whether she had ever been a party to a lawsuit, Collins stated that she was a

party to a worker's compensation case. The trial judge then stated, "One thing everybody should understand is

that the worker's compensation system is totally different than this. It has different rules, different regulations,

different structure, totally different." The trial judge said to Collins "So can you just forget about that," and

Collins responded "yes."

        In our review of the record -- with Collins merely stating that she was a party to one worker's

compensation lawsuit -- there were no statements in the record by Collins that indicated that Collins took pride

in being a party in her worker's compensation lawsuit. Dr. Keddington's attorney's conclusion that Collins

considered being a party to a lawsuit a positive thing is a subjective assessment of Collins based upon her

conduct or demeanor. As previously discussed with regard to venirepersons Stewart and Sims, conduct and

demeanor must be given close scrutiny because such perceptions may easily be used as a pretext for

discrimination. Wiley, 165 Ill. 2d at 274-75. Here, we note that Dr. Keddington's counsel did not ask Collins

any additional questions about his perceptions of her statements and he did not provide a clear and reasonably

specific explanation of her conduct that he perceived to indicate that she thought being party to a lawsuit was

something to be proud of. Even if Collins thought it was positive to be a party to a worker's compensation

lawsuit, defense counsel failed to articulate how that established that Collins had a specific bias against the


                                                       - 22 -
1-04-1477


defendants in the present case. See Andrews, 155 Ill. 2d at 293. "Litigious" means prone to engage in lawsuits.

See Black's Law Dictionary 841 (5th ed. 1979). We do not believe that Sims’ involvement in one lawsuit

makes her a litigious person. We believe that defense counsel's argument that Collins is a litigious person is

pretextual because she had only been involved in one law suit and there is nothing in the record to support

counsel's statement that Collins considered her participation in that lawsuit to be a positive thing. Moreover, as

was the case with Stewart and Sims, we find that Collins' head nodding was not a valid race-neutral reason for

excluding her from the jury and by doing so she was also denied equal protection of the laws. Accordingly, we

find that the defendants’ attorneys failed to provide a race-neutral reason for excluding Collins from the jury or

established that Collins exhibited a bias toward the defendants in this case.

        In summary, in this case, I hold that the defendants proffered race-neutral reasons for excluding

Stewart, Sims and Collins, the three black venirepersons, were pretextual. More importantly, we note that when

reviewing a proffered race-neutral explanation for excluding a venireperson, " 'we [may not] close our eyes as

judges to what we must perceive as men' ". Randall, 283 Ill. App. 3d at 1026, quoting Knapp, 230 N.Y. at 63.

Because the defendants' proffered race-neutral reasons are pretextual, they denied Stewart, Sims and Collins

equal protection of the laws by purposefully excluding the three black jurors from the jury. Purkett, 514 U.S. at

768, 131 L. Ed. 2d at 839, 115 S. Ct. at 1771. Furthermore, defendants’ attorneys' explanations do not establish

that Stewart, Sims and Collins, the excluded venirepersons, exhibited a specific bias in this case. Andrews, 155

Ill. 2d at 293. The defendants maintain that they did not engage in purposeful discrimination because they did

not exercise peremptory challenges against the three black jurors that served on the jury. The defendants'

argument lacks merit because the exclusion of even one minority venireperson because of race is

unconstitutional and requires reversal of the case. See Andrews, 155 Ill. 2d at 294, citing People v. Harris, 129

Ill. 2d 123, 175 (1989). In trials involving litigants from different ethnic or racial groups, there is a compelling

governmental or state interest in having a diverse jury, otherwise, the litigants are denied equal protection of the




                                                       - 23 -
1-04-1477


laws. Grutter v. Bollinger, 539 U.S. 306, 323-25, 156 L. Ed. 2d 304, 329-30, 123 S. Ct. 2325, 2336-37 (2003).3

Accordingly, we reverse and remand this case for a new trial, but I reverse because the trial court's finding that

the plaintiffs did not prove that the defendants engaged in purposeful discrimination against the black jurors,

Larry Stewart, Orlassia Sims, and Norma Collins, was clearly erroneous and denied the black jurors and

litigants equal protection of the laws.

                                          III. IPI Civil (2005) No. 12.05

        While we have already reversed this case, we address this issue because it may come up again on retrial

in the trial court. The plaintiffs argue that the trial court erred in providing the jury with IPI Civil (2005) No.

12.05 because there was no credible evidence presented at trial which would allow for an argument that a

pneumothorax was the sole proximate cause of Ms. Warren's death. The plaintiffs maintain that the cause of

Ms. Warren's death was peritonitis resulting from the defendants' negligence. IPI Civil (2005) No. 12.05

provides as follows:

                         "If you decide that a [the] defendant[s] was [were] negligent and 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.

                         [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.]" IPI Civil (2005) No. 12.05.

The plaintiffs argue that the instruction was improper because the evidence presented at trial established that

Ms. Warren suffered from pneumothorax that occurred after she suffered a cardiac arrest. The plaintiffs argue




            3
            " 'The guarantee of equal protection cannot mean one thing when applied to one individual
   and something else when applied to a person of another color. If both are not accorded the same
   protection [given an opportunity to serve on the jury], then it is not equal.' " Grutter, 539 U.S. at
   323, 156 L. Ed. 2d at 329, 123 S. Ct. at 2336, quoting Regents of the University of California v.
   Bakke, 438 U.S. 265, 289-90, 57 L. Ed. 2d 750, 770-71, 98 S. Ct. 2733, 2747-48 (1978).

                                                        - 24 -
1-04-1477


that the evidence demonstrated that Ms. Warren died as a result of peritonitis which caused her cardiac arrest.

        The defendants argue that the plaintiffs' argument misapprehends the law. The defendants cite to

Nassar v. County of Cook, 333 Ill. App. 3d 289, 297 (2002), to support their position that as long as the jury

was provided with some competent evidence that someone or something other than the defendants' conduct

caused the injury at issue, then the sole proximate cause instruction was proper and the trial court's refusal to

give it would constitute reversible error. The defendants argue that there was competent evidence presented at

trial to warrant a sole proximate cause instruction. The defendants note that Dr. Anderson, Dr. Keddington, and

defense expert Dr. Fitzgibbons testified that the cause of Ms. Warren's death was not peritonitis but

pneumothorax and the resulting cardiopulmonary arrest. As a result, the defendants maintain that IPI Civil

(2005) No. 12.05 was properly given to the jury.

        In a jury trial, each party has the right to have the jury clearly and fairly instructed upon each theory

which was supported by the evidence. Nassar v. County of Cook, 333 Ill. App. 3d 289, 297 (2002), citing

Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 100 (1995). The sole proximate cause instruction

requires that there be some evidence to justify giving the instruction. McDonnell, 192 Ill. 2d at 515; see also

Nassar, 333 Ill. App. 3d at 297. It is within the circuit court's discretion to determine what issues are raised by

the evidence and whether an instruction should be given. Nassar, 333 Ill. App. 3d at 297, citing In re Nancy M.,

317 Ill. App. 3d 167 (2000). The test for determining the propriety of tendered instructions is whether the jury

was fairly, fully, and comprehensively informed as to the relevant principles considering the instructions in

their entirety. Leonardi, 168 Ill. 2d at 100. The notes on use indicate that the long form of IPI Civil (2005) No.

12.05 is only appropriate “where there is evidence tending to show that the sole proximate cause of the

occurrence was something other than the conduct of the defendant.” IPI Civil (2005) No. 12.05, Notes On Use.

“A defendant has the right not only to rebut the evidence tending to show that defendant's acts are negligent and

the proximate cause of claimed injuries, but also has the right to endeavor to establish by competent evidence

that the conduct of a third person, or some other causative factor, is the sole proximate cause of plaintiff's


                                                      - 25 -
1-04-1477


injuries. Further, if the evidence is sufficient, the defendant is entitled to an instruction on this theory.”

Leonardi, 168 Ill. 2d at 101.

          We must review the record to determine whether there was any evidence presented at trial which tends

to show that the sole proximate cause of Ms. Warren's death was something other than the conduct of the

defendant. See IPI Civil 12.05, Notes On Use, at 12-11. Dr. Judith Keddington, a board-certified surgeon,

testified that she examined Ms. Warren on May 8 and found her condition to be stable. She noted an increase in

Ms. Warren's white blood cell count and ordered an infectious disease consultation. Dr. Keddington also

ordered intravenous nutrition, an increase in fluid administration and antibiotics. Dr. Keddington testified that

blood gases drawn at this time showed very low oxygen levels and poor blood circulation. Ms. Warren

ultimately went into cardiopulmonary arrest. Dr. Keddington testified that a portable chest Xray showed that

Ms. Warren had suffered a "tension pneumothorax," which occurs when air leaks out of the lungs and

accumulates in the chest around the heart and cardiac arteries. It pushes the heart to one side and collapses the

veins, preventing blood from returning to the heart and preventing the heart from pumping blood to other

organs.

          Dr. Shaku Teas, a forensic pathologist and the plaintiffs' expert witness, testified that the cause of death

for Ms. Warren was peritionitis due to perforation of the stomach.        On cross-examination, Dr. Teas testified

that he could not say whether Ms. Warren would have sustained cardiopulmonary arrest if she had not had a

tension pneumothorax. Additionally, the record reveals that defense expert witness Dr. Robert Fitzgibbons, a

board- certified general surgeon and professor of surgery at Creighton University, testified that Ms. Warren did

not die of peritonitis, as plaintiffs claimed, but as a result of the tension pneumothorax that occurred on May 9

and led to cardiopulmonary arrest and brain death.

          Our review of the testimony presented at trial indicates that four witnesses testified that there was a

causative factor other than peritonitis that may have been the proximate cause of Ms. Warren's death.

Specifically, defense witnesses Dr. Fitzgibbons, Dr. Anderson, and Dr. Keddington testified that the cause of


                                                         - 26 -
   1-04-1477

Ms. Warren's death was not peritonitis but pneumothorax and the resulting cardiopulmonary arrest. In our

review of the record, the defendants presented sufficient competent evidence to justify the trial court giving the

instruction. Accordingly, the trial court did not abuse its discretion when IPI Civil (2005) No. 12.05 was given

to the jury.

                                     IV. Judgment Notwithstanding the Verdict

        In light of our decision to remand this case for a new trial because of the Batson violation, we need not

reach plaintiffs' final argument that the trial court erred in failing to grant a judgment notwithstanding the

verdict. R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 168 (1998) (it is not necessary to reach

the merits of the defendants' other arguments in light of remand); see also Pietruszynski v. McClier Corp.,

Architects & Engineers, Inc., 338 Ill. App. 3d 58, 68 (2003).

                                                  V. Conclusion

        For the foregoing reasons, the judgment of the circuit court is reversed and this matter is remanded to

the circuit court for a new trial.

        Reversed and remanded.

        QUINN, P.J., specially concurs.

        MURPHY, J., dissents.

        PRESIDING JUSTICE QUINN, specially concurring:



        I agree with Justice Neville that we must reverse this matter and remand it for new trial based

on the holding in Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), and its

progeny. I base this decision on a ground different from that found by Justice Neville. I believe that

the trial court applied a faulty factual analysis when considering plaintiff's Batson challenges.

        "[A] trial court's third-stage finding on the ultimate issue of discrimination rests largely on

credibility determinations." (Emphasis in original.)            People v. Rivera, 221 Ill. 2d at 502, citing


                                                       27
   1-04-1477

McDonnell v. McPartlin, 192 Ill. 2d at 527.           Where the record indicates that the trial judge

appropriately scrutinized counsel's explanation, the trial judge's determination as to counsel's

credibility is entitled to great deference. McDonnell v. McPartlin, 192 Ill. 2d at 529.

       In People v. Martinez, 317 Ill. App. 3d 1040, 1044 (2000), this court distinguished the different

considerations the trial court must take into account during the second and third steps of the Batson

process: "At the second step, the court focuses on the facial validity [of the reason proffered for striking

the juror]. At the third step, the court must evaluate the persuasiveness and genuineness of the reason.

At this third step, the court cannot just accept the proffered reason without evaluating it against the

circumstances of the case."

       The Martinez court held that it could not determine whether the State's expressed reason for

peremptorily excusing a black juror was pretextual. This was because the trial court held that the issue

at the third step of the Batson process was " 'the facial validity of the prosecutor's explanation. Unless

a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed

race neutral *** In this case, the court finds that the State gave race-neutral reasons [sic] for purposes

of excluding Miss Lee ***. Court finds no error in the manner of jury selection.'          The trial court's

comments demonstrate that it only completed the second-step evaluation pursuant to Batson. Although

the trial court stated it was conducting the third-step analysis, it is clear that the court did not in fact

conduct the third step." (Emphasis omitted.) People v. Martinez, 317 Ill. App. 3d at 1045.

       The statements of the trial court in the instant case similarly reflect that it had only completed

the second-step evaluation pursuant to Batson.

       In rejecting plaintiff''s attorney's assertion that defendants' counsel's use of peremptory

challenges was violative of Batson, the court said: "[I]n terms of Mr. Stewart, Ms. Collins, and Ms.

Sims, the concerns seem to be their attitudes toward damages, which I believe is a race neutral reason,

                                                    28
   1-04-1477

so on that basis I'm willing to hold there was no Batson violation here."

       After plaintiffs' counsel argued that defendants' counsel's stated reasons that they based their

peremptory strikes on the juror's demeanors had no basis in fact, the trial court said:

                       "THE COURT: Well, we've also [sic] seen jurors. We have all noticed

               body language with people. Sometimes that body language is favorable to us

               and sometimes it's not.

                       I'm not going to question the veracity here of the attorneys.

               I'm simply saying that as far as I'm concerned there are race neutral reasons

               for why these people were excused, and, therefore, I'm not going to sustain

               the Batson challenge."

       It is well settled that a prospective juror's courtroom demeanor may constitute a legitimate

race-neutral reason for excluding that individual. People v. Andrews, 155 Ill. 2d 286, 303 (1993);

People v. Young, 128 Ill. 2d 1, 20 (1989). However, because such a subjective explanation for

exercising a peremptory strike lends itself to pretext, such an explanation must be closely scrutinized.

McDonnell v. McPartlin, 192 Ill. 2d at 528.

       In the instant case, the record demonstrates that the trial court did not "closely scrutinize"

defendants' counsel's proffered explanations, but rather, the trial court merely accepted their

explanations because they were not based on race.

       When faced with a similar error occurring during the third step of the Batson process, this court

has reversed and remanded cases for the trial court to conduct a proper Batson analysis. See People v.

Martinez, 317 Ill. App. 3d at 1046; People v. Davis, 345 Ill. App. 3d at 911-12. Those cases involved

allegations that one peremptory challenge was exercised inappropriately. As pointed out by Justice

Neville, while the defense peremptorily excused five veniremen, only three of these peremptories are

                                                    29
   1-04-1477

really problematic. Further, while Justice Neville finds that excusing venireperson Norma Collins was

pretextual, I do not. I believe that defense counsel were well within their rights to excuse Ms. Collins

based on her having previously filed a worker's compensation claim. Defense counsel proffered that

they excused venirepersons Orlassia Sims and Larry Stewart due to their having raised their hands

when asked whether they could return a verdict in excess of $1 million should the jury find defendant

doctors liable for decedent's death. Justice Neville points out that a fair reading of the record reveals

that all the potential veniremen raised their hands in response to this question. Consequently, the

offered reason for excusing Sims and Stewart - that they indicated support for a large damages award in

the case - would not distinguish those two jurors from the rest of the venire who were selected. I agree

with Justice Neville on this point, but I do not believe that the record is sufficiently clear to find that

the reasons stated by defense counsel were pretextual. However, I do believe that the trial court's

statement that "I'm not going to question the veracity here of the attorneys" effectively cut off

discussion of the bases for the peremptory strikes. Considering the fact that the trial court judge has

since retired, I agree that remandment would be inappropriate. McDonnell v. McPartlin, 192 Ill. 2d at

528. Consequently, I agree that we must reverse this matter and remand it for a new trial.

       I believe that the trial court's error in this case is understandable considering the contradictory

language utilized by the Supreme Court in applying Batson. As explained by our own supreme court in

People v. Harris, 206 Ill. 2d 1, 17 (2002):

       "Once a prima facie case is made, the burden shifts to the prosecutor to articulate

       a race-neutral explanation for excusing the venirepersons in question. Hernandez v.

       New York, 500 U.S. 352, 358-59, 114 L. Ed. 2d 395, 405, 111 S. Ct. 1859, 1866

       (1991); People v. Williams, 164 Ill. 2d 1, 19 (1994).          At this stage of the process, the

       explanation given by the prosecutor need not be persuasive, or even plausible.

                                                    30
   1-04-1477

          Purkett v. Elem, 514 U.S. 765, 768, 131 L. Ed. 2d 834, 839, 115 S. Ct. 1769, 1771

          (1995). A neutral explanation is one based on a reason other than race. Harris II,

          164 Ill. 2d at 333. ' Unless a discriminatory intent is inherent in the prosecutor's

          explanation, the reason offered will be deemed race neutral.' Hernandez, 500 U.S.

          at 359, 114 L. Ed. 2d at 406, 111 S. Ct. at 1866." (Emphasis added.)

See also People v. Munson, 206 Ill. 2d 104, 117 (2002); People v. Crockett, 314 Ill. App. 3d 389

(2000), using the same language.

          Webster's Third New International Dictionary 1736 (1986) defines "plausible" as "superficially

worthy of belief: credible; being such as may be accepted as real (eg. a plausible pretext)." It is clearly

contradictory to say that a prosecutor's explanation need not be "plausible" but that courts must "closely

scrutinize" these same explanations.

          The contradictory nature of this language is highlighted by the language used recently by the

Supreme Court in Miller-El v. Dretke, 545 U.S. 231, 252, 162 L. Ed. 2d 196, 125 S. Ct. 2317, 2331-32

(2005);

                 "As for law, the rule in Batson provides an opportunity to the prosecutor

          to give the reason for striking the juror, and it requires the judge to assess the

          plausibility of that reason in light of all evidence with a bearing on it. 476 U.S.,

          at 96-97; Miller-El v. Cockrell, 537 U. S., at 339. It is true that peremptories

          are often the subjects of instinct, Batson v. Kentucky, 476 U.S., at 106 (Marshall,

          J., concurring), and it can sometimes be hard to say what the reason is. But when

          illegitimate grounds like race are in issue, a prosecutor simply has got to state his

          reasons as best he can and stand or fall on the plausibility of the reason he gives.

          A Batson challenge does not call for a mere exercise in thinking up any rational basis.

                                                       31
   1-04-1477

       If the stated reason does not hold up, its pretextual significance does not fade because

       a trial judge, or an appeals court, can imagine a reason that might not have been shown

       up as false." (Emphasis added.)

It is not at all surprising that trial courts and attorneys occasionally have great difficulty in addressing
Batson challenges considering that the guidance given by courts of review is not only unclear, it is
contradictory.



JUSTICE MURPHY, dissenting:

       I respectfully dissent. Whether or not defendants intended to discriminate on the basis of race

in exercising peremptory challenges, is a question of fact. Because there is seldom much evidence on

this issue, the trial court’s determination rests largely on the demeanor and credibility of the attorney

exercising the challenge, the tenor of the voir dire, and the behavior of the prospective jurors.

Therefore, we must determine, by examining the record, whether the trial court’s determination on a

Batson challenge was clearly erroneous. Hernandez v. New York, 500 U.S. 352, 365, 114 L. Ed. 2d

395, 409, 111 S. Ct. 1859, 1869 (1991). Under this standard of review, we grant the trial court

deference and only overturn its determination if left with a “definite and firm conviction that a mistake

has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 92 L. Ed. 746,

766, 68 S. Ct. 525, 542 (1948). Where two “plausible” views of the evidence have been presented, the

trial court’s choice of one cannot be clearly erroneous and a court of review may not reverse even if

convinced it would have weighed the evidence differently. Anderson v. City of Bessemer City, 470

U.S. 564, 573-74, 84 L. Ed. 2d 518, 528, 105 S. Ct. 1504, 1511 (1985).

       Our supreme court has affirmed the holding that the exclusion of a minority venireperson based

on a certain characteristic while accepting a white venireperson who shares the same characteristic

                                                    31
   1-04-1477

does not, in and of itself, invalidate a party’s explanation as pretextual. People v. Williams, 209 Ill. 2d

227, 245 (2004). The Williams court continued to highlight that peremptory challenges are based on a

combination of traits. The possession of one additional nondiscriminatory negative trait over another

allows for proper use of a peremptory challenge. Williams, 209 Ill. 2d at 245-46, citing People v.

Wiley, 165 Ill. 2d 259, 282-83 (1995). Demeanor alone as a race-neutral reason may be sufficient, but

must be closely scrutinized. Williams, 209 Ill. 2d at 247.

       Therefore, the trial judge must weigh the demeanor, context and atmosphere of the participants

and the courtroom to best determine the credibility of the proffered reason. The inherent difficulty in

an appellate analysis of this issue is that the record does not, and cannot, provide a full report of

nonverbal cues.    Although we carefully scrutinize the reasoning of the party, second-guessing a

determination that is so reliant on subjective and nonverbal expressions must not be done lightly. See

Miller-El v. Dretke, 545 U.S. 231, 267-73, 162 L. Ed. 2d 196, 230-35, 125 S. Ct. 2317, 2340-45 (2005)

(Breyer, J., concurring); Rice v. Collins, 546 U.S.__, 126 S. Ct. 969, 976-77, 163 L. Ed. 2d 824, 834-

35 (2006) (Breyer, J., concurring).

       The obvious social and constitutional import of this subject, the difficulty of the subject, and

the deference and trust we must place in the trial court to properly determine a just result are in serious

tension. Determining and articulating the motivation and reason for an instinctive decision to exercise

a peremptory challenge may be impossible for the attorney utilizing the challenge, much less a

reviewing court. Subconscious factors that may rest upon impermissible racial, religious, ethnic or

gender-based stereotypes may be unknowingly at play. The result is a very challenging analysis

utilizing competing standards of review to determine something that may be impossible to truly

accomplish in person, much less via a cold record.


                                                     31
   1-04-1477

       In any event, in this case, I first agree with Justice Quinn that defendants’ challenge of

venireperson Norma Collins was not pretextual. Defendants challenged Collins on the basis of her

having filed a worker’s compensation claim and their belief that her demeanor exhibited a favorable

attitude toward litigation damages. This combination of traits set Collins apart from the venire and was

sufficient to withstand the Batson challenge. The trial court’s denial of this challenge was not clearly

erroneous.

       With respect to Orlassia Sims and Larry Stewart, the record indicates generally that jurors

nodded, laughed and raised their hands in response to certain questions. Justice Neville highlights that

the consequence of all potential jurors answering in the same fashion did not distinguish Sims and

Stewart from their white counterparts. I do not disagree with his finding that a fair reading of the

record indicates that all members of the group responded in the same fashion.

       However, the challenges of Sims and Stewart specifically highlighted the body language and

way in which each answered the questions. Defendants were wary of Stewart’s body language, which

they felt indicated a strong support for large damage claims. As for Sims, defendants believed that she

acted disinterested and would not be a good, active juror.

       I agree with Justice Quinn that the trial court’s statement “I’m not going to question the veracity

here of the attorneys,” is a concern. However, I do not believe this may be interpreted to overcome the

deference we must pay the trial court on issues so dependent on evaluations of the participants’

demeanor and credibility. I believe that the trial court’s comment was a slip of the tongue - an

oversimplification of its finding that defendants’ stated reasons were plausible and credible. Although

many race-neutral answers may be stock answers that attorneys use over and over, thereby making the

Batson process a “charade,” they nonetheless have been accepted as proper race-neutral reasons. See


                                                   31
   1-04-1477

People v. Randall, 283 Ill. App. 3d 1019, 1025-26 (1996). The trial court found the reasons to be

properly race-neutral and most importantly that defendants’ belief in them was credible.

       The facts of this case have not left me with a definite and firm conviction that a mistake was

made by the trial court. The cold record cannot overcome the credibility determination made by the

trial court. We have no way of knowing the manner in which the participants nodded their heads or

raised their hands. From the record, we do not know if they were slouching or looking around bored or

excitedly supporting the idea of large damages.

       We do know that defendants felt that both Stewart’s and Sims’ demeanor and body language

indicated a mindset they did not find favorable to their clients. We do know that defendants also felt

that Sims’ body language and demeanor indicated a general disinterest in the proceedings. The trial

court was able to observe the attorneys and the venire. The trial court concluded that the defendants’

race-neutral explanations were credible. These explanations are plausible. Therefore, I would find the

trial court’s denial of plaintiff’s Batson challenge was not clearly erroneous.

       Until such time as the court picks the jury or until there are no juries in civil cases, there will

likely be conflict in resolving questions of prejudice in jury selection. I do not know if Justice Breyer’s

assertions that peremptory challenges are unworkable merit abandoning the current system - that is

another question for another place – but, while the present system remains, I agree with Justice

Gallagher’s conclusion in Randall, 283 Ill. App. 3d at 1030-31 (Gallagher, J., concurring in part &

dissenting in part): the trial court should not face the unenviable burden of second-guessing an

attorney’s use of peremptory challenges when a facially valid reason for exclusion has been exercised

in a credible fashion.




                                                    31
