Defense Verdict Reversed on Appeal Following Closing Argument Comments

Closing arguments play a crucial role in a case, and attorneys, judges, and jurors generally agree that it’s the most anticipated part of a trial. It’s the last stage of the case for attorneys to persuade jurors to return a verdict in their client’s favor. However, instead of using closing arguments to summarize the evidence, some attorneys add comments that regrettably can lead to a reversal of the verdict on appeal. That’s what happened in Konewko v. Advocate Health & Hospitals Corp., 2020 IL App (2d) 190684.

Case Background

Plaintiff, Michael Konewko, filed a medical malpractice suit against Advocate Health and Hospitals Corporation for injuries he sustained as a result of a commode incident during his stay at Advocate. Id. at ¶ 5. While he was an inpatient, Nurse Lisa Begler was assisting Konewko when his bottom hit the commode in an uncontrolled descent, causing him injuries. Id. Plaintiff alleged Nurse Begler failed to meet the standard of care while assisting him to the commode. Id. During the nine-day trial, the trial court ruled on the parties’ motions in limine and barred any attorney or witness from referring to the wealth, poverty, or financial status of any party. In addition, it was ruled prejudicial error to ask a jury to put itself in the position of a party. Id. at ¶ 7.

The evidence presented on behalf of both sides was so closely balanced that a jury could reasonably have found for either party. Plaintiff  asked for $762,591 in damages. Id. at ¶ 64. In its closing argument, Advocate walked a fine line by first stating to the jury, “So you were asked to award almost $800,000. And the first thing that popped into my mind was how many shifts, how many years, a nurse and a physical therapist in their life would have to work to earn $800,000.” Id. at ¶ 66. Following an objection, the jury was instructed to disregard the comment. Id. Advocate’s counsel continued to discuss Nurse Begler’s actions stating, “…What does professionally negligent mean? It means she was not reasonably careful. So put yourself in Lisa Begler’s – [emphasis added]”. This statement was also objected to and stricken. Id. at ¶ 67. Counsel then stated, “And I would submit to you that exploiting people’s lack of memory and having them on the stand for hours, and basically openly mocking them – [emphasis added],” then finished with, “And then asking with all the expert witnesses that have made all this money in this case, then asking to award a sum of money that would take years for nurses and physical therapists – ” Id. at ¶ 68. Once again, these comments led to objections and were stricken from the record.

During jury deliberations, the jury asked the court whether it could find Advocate’s agent (Nurse Begler) not negligent but still request Advocate pay Plaintiff, which suggested the jury was concerned with Nurse Begler’s reputation. Id. at ¶ 69. The jury returned a verdict in Advocate’s favor. Plaintiff filed a posttrial motion arguing that Advocate’s closing comments pertaining to Nurse Begler were improper and warranted a new trial. Id. at ¶ 71. Advocate reasoned their comments were proper since Nurse Begler was not a party to the case and the comments were not unduly prejudicial in the context of a nine-day trial and a 45-minute closing argument. Id. at ¶ 72-73. The trial court ultimately denied Plaintiff’s posttrial motion, concluding the evidence was equally balanced, the complained-of comments were not prejudicial enough to result in an improper verdict, and the fact that Nurse Begler was not a party was dispositive. Id. at ¶ 77. Even though the trial court agreed the Advocate’s counsel crossed a line during its closing comments, it ruled that those comments did not rise to the level of reversible error. Id.

Analysis of Appellate Court’s Decision

Plaintiff appealed, and the 2nd District reversed the trial court’s decision. The appellate court noted that isolated comments that are merely incidental to a proper purpose will not usually require reversal. Id. at ¶ 83. However, it concluded that referring to a party’s financial status, suggesting a party itself will be responsible for the satisfaction of a money judgment, and commenting on a party’s reputation not only elicited jurors’ sympathy but also injected improper elements into the case. Id. at ¶ 81. The court also noted that when a party repeatedly makes improper comments, especially when those comments violate a prior court order, sustaining objections and instructing the jury to disregard the comments may no longer be a sufficient cure. Id. In addition, the court analyzed prior decisions where the evidence was closely balanced (as it was in this case) and concluded that improper comments may warrant reversal.

The appellate court stated that mentioning the requested $800,000 of damages in relation to Nurse Begler’s salary was improper: it suggested she would be personally responsible for the money judgment, referred to her financial position, and asserted facts not in evidence (suggesting that Nurse Begler was of modest means, even though no such testimony was offered). Id. at ¶ 91. Again, the suggestion of personal responsibility and the reference to financial position, as well as professional reputation, injected improper elements into the case. Id. The appellate court also reasoned that making a comment about the amount of money plaintiff’s experts made from the case inferred that plaintiff had greater resources and could afford to hire such experts. Furthermore, asking the jury to put itself in Nurse Begler’s shoes was a classic appeal for sympathy, a tactic the court stated has been notoriously prohibited. Id. at ¶ 92. Even though Advocate’s counsel wasn’t allowed to finish its statements, the court deemed the thoughts had already been conveyed to the jury. Id.

In defending its comments, Advocate argued the comments were not prejudicial since they referenced a non-party. Id. at ¶ 99. Although the trial court had accepted this argument, the appellate court rejected it. The court concluded it doesn’t matter whether comments refer to a party, the party’s agent, or expert witnesses. Instead, the deciding fact is whether the comments prejudiced the jury in favor of or against a party. Id. at ¶ 100. . The court stated that to allow otherwise would pave the way for attorneys to make numerous improper and inflammatory remarks during closing arguments merely because such comments pertained to a party’s agent and not the party itself. This would allow attorneys the opportunity to paint the party’s agent (such as a nurse or doctor) as being more human, more relatable, and more sympathetic than the actual party (in this case, a hospital). Id.

The Takeaway

Generally, attorneys must refrain from inflaming the jury’s passions during closing arguments. Konewko serves as a reminder that prejudicial comments, whether made about the party itself or its agent, may on appeal warrant reversal of a favorable verdict. Attorneys should be especially cautious of their closing comments in closely balanced cases.

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