Fourth District Appellate Court Pieces Together Inadequate Record

Katherine Adams claimed that defendants negligently removed her gallbladder, so she sued them. She got a jury verdict for more than $560,000. After their motions for a new trial were denied, defendants appealed. They claimed it was an abuse of discretion for the trial court to refuse to allow certain parts of expert’s testimony.

The entire, unedited video evidence deposition of the expert was in the record. But the trial court struck portions of the evidence deposition, and a final, edited videotape that was presented to the jury was not in the record. Nor was there a reported transcript of the testimony.

The appellate record contained defendants’ dvd of the stricken parts of the expert testimony. But the appellate court did not have the hardware capable of viewing the dvd. A final complication was that defendants did not cite to the unedited videotape for the expert testimony that was presented at trial.

The appellate court pointed out that it was defendants’ (appellants’) obligation to assure there was a record sufficient to inform the court of the pertinent issues. An incomplete record is a violation of Illinois Supreme Court Rule 323, and is grounds for summary affirmance of the verdict.

Despite all of that, the appellate court agreed to address the merits of defendants’ argument concerning this testimony. The court went to the trouble of “piec[ing] together Dr. Stasberg’s [expert] testimony from the line references in the transcript … Since the record contains a reference to the lines of the transcript of Dr. Strasberg’s deposition that were stricken, we can discern Dr. Strasberg’s digitally recorded testimony from the record.”

As it turned out, the appellate court affirmed striking parts of the expert testimony. But defendants were fortunate to have an appellate court that was willing to fight through the unedited deposition transcript to discern what actually was presented at trial. The lesson here: Make sure your appellate record is complete and don’t assume the court has the hardware and software to view the record as you present it. You must go to the trouble of giving the record to the appellate court in a form it can read or watch.

The whole case, Adams v. Sarah Bush Lincoln Center, No. 4-06-0284 (1/23/07), is available by clicking here.