Articles Posted in Plain Error

Sonya Wilbourn sued her doctor, Mark Cavalenes, for medical malpractice. Wilbourn claimed Cavalenes inserted the wrong size compression plate when he performed surgery on Wilbourn’s fractured femur.

The jury gave a verdict in favor of Dr. Cavalenes, Wilbourn then asked for a new trial, but the trial court refused. So Wilbourn appealed. Among her arguments to the appellate court, Wilbourn claimed she was denied a fair trial because of a prejudicial remark by the defense lawyer during his closing argument.

During his closing argument to the jury, Cavalenes’s attorney called Wilbourn’s attorney a “slick lawyer” who tried to twist Dr. Cavalenes’s words. Wilbourn argued that the remark amounted to “plain error.” But the First District Illinois Appellate Court ruled that the comment did not change the outcome of the trial, and affirmed the verdict.

Here’s why the court rejected Wilbourn’s argument.

We cannot disturb the trial court’s denial of plaintiff’s motion for a new trial based upon defense counsel’s isolated reference to plaintiff’s attorney as a “slick lawyer trying to twist [Dr. Cavalenes'] words.” This reference was made in response to plaintiff’s counsel’s assertion of his personal opinion as to the credibility of Dr. Cavalenes, and was a response to plaintiff’s counsel’s personal belief that Dr. Cavalenes was not credible. The trial court was able to observe the effect of the improper comments on the jury, and was in a position vastly superior to determine whether the improper comments denied plaintiff a fair trial. The trial court determined that the comments did not deny plaintiff a fair trial, and based upon the record before us, we cannot disturb that ruling.

The appellate opinion also is remarkable for its discussion of the “plain error” doctrine. The court described application of the doctrine in civil cases as “exceedingly rare.”

Read the whole opinion, Wilbourn v. Cavalenes, No. 1-08-3603 (2/19/10), by clicking here.

In this intercontinental visitation battle, Alixio Khazal claimed “plain error” was grounds for reversal of the trial court’s decision to permit the mother visitation of their child in the United Arab Emirates. The dispute centered on the guardian ad litem’s oral report given at a pretrial conference, which included a recommendation to allow visitation in the UAE. Alixio claimed he was surprised by the guardian ad litem’s oral report, that the report should have been in writing, and that he was thus deprived of the opportunity to cross-examine the guardian. But because the father did not assert an objection at the pretrial conference or request the guardian’s testimony, cross-examination, or written report, the appellate court ruled that those positions were waived on appeal.

Alixio claimed it was “plain error” to allow the guardian ad litem’s oral report and not to allow cross-examination. He argued that the plain error doctrine trumped the waiver rule. The First District Court of Appeals reviewed the use of the plain error doctrine in a civil case.

The plain error doctrine does permit an appellate court to review errors not properly preserved at the trial level … “But this doctrine is applied in civil cases only where the act complained of was a prejudicial error so egregious that it deprived the complaining party of a fair trial and substantially impaired the integrity of the judicial process.”

Before an error can rise to the level of a plain error, there must first be a “threshold-level showing” of prejudice … The father has not explained what he would have done differently if he had received the guardian’s recommendation earlier and in writing. Thus, this court finds both that the father waived this issue for appeal and that it did not rise to the level of a plain error.

Read the whole case, IRMO Saheb, No. 1-06-3304 (11/13/07), by clicking here.

In this trip and fall case, a customer, Matthews, sustained injuries when he tripped over a piece of metal that was jutting out of a fuel pump island at a gas station. The First District Illinois Appellate Court ruled on a few appellate issues. The two most significant have to do with the “plain error doctrine” and the requirement that each issue in an appeal must have its own statement of the standard of review.

After he was zeroed at trial, Matthews appealed. One of his arguments on appeal relied on the “plain error doctrine.” Matthews claimed that the trial judge made faulty and misleading statements to the jury. However, his attorney did not object when the statements were made. So on appeal, Matthews argued that the court’s statements were grounds for reversal because they constituted “plain error.”

The First District Appellate Court disagreed. The court stated that the use of the “plain error doctrine” in civil cases was “exceedingly rare.” “This doctrine is applied in civil cases only where the act complained of was a prejudicial error so egregious that it deprived the complaining party of a fair trial and substantially impaired the integrity of the judicial process itself.”

The appellate court also reiterated the rule that each of Matthews’s claims required a statement of the standard of review. “A standard of review applies to an individual issue, not to an entire appeal.” The court tweaked the parties a bit because neither discussed the standard of review for Matthews’s first argument, which concerned a claim that the verdict was inconsistent with the jury’s answer to a special interrogatory. (De novo review.)

Get the whole case, Matthews v. Avalon Petroleum Co., No. 1-05-2606 (6/29/07), by clicking here.

The use of psychotropic drugs again was at issue. The patient was admitted to the Elgin Mental Health Center after she was found to be unfit to stand trial for unauthorized use of a credit card. The patient was treated by Dr. Rosanova, who diagnosed schizophrenia and recommended use of phychotropic drugs.

The patient received an independent evaluation from a clinical psychologist, not a medical doctor. A chief preliminary issue was whether the patient timely demanded an independent evaluation by a physician. The court ruled that the patient’s actions in the trial court sufficiently defeated a waiver argument.

But the appellate court did not stop there. The court also ruled that the plain error doctrine — not often invoked in civil cases — overcame waiver. Here’s what the court said:

The plain-error doctrine allows a reviewing court to address a waived or forfeited issue in two circumstances: (1) where the evidence is so closely balanced that the outcome may have resulted from the error rather than the evidence; or (2) where the error is so serious that the respondent was denied a substantial right, and thus a fair trial . . . In this case, petitioner glaringly overlooks the second circumstance in which the plain-error doctrine may apply. As stated, the Illinois Supreme Court has described the involuntary administration of psychotropic drugs as an act that involves a ” ‘ “massive curtailment of liberty” ‘ ” . . . and an act that is a ” ‘particularly severe’ interference with a person’s liberty . . . Therefore, even if respondent waived her right to an independent psychiatric evaluation, the second prong of the plain-error doctrine applies

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Get the whole case, In re Dru G., 02-05-1214 (12/20/06), by clicking here.