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Motion 12 - product liability motion in opposition of remittitur - Part 3

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Ford fails to explain how plaintiff's modified version of 41.03 is incorrect or prejudicial. It was necessary to modify 41.03 because the rights of Ford Motor Company and Mazda Motor Corporation were not separate and distinct, while those of Mr. Timberlake were. There is no basis on which to say plaintiff's version was erroneous.


Ford makes the unfounded and incorrect statement that the court erred in using the verdict form plaintiff tendered, B45.03A, instead of the one Ford tendered, 600.14. The Notes on Use to 600.14 are clear:

This verdict form is identical to IPI B45.03A with the exception of the addition of paragraph “Second” providing for findings for or against third-party defendants. For cases involving contribution counterclaims among defendants, tried concurrently with the plaintiff's claim, use B45.03A.

IPI, Notes to Use to 600.14, p. 616 .

Plaintiff pointed out this exact language during the instructions conferences. Ford had no answer then, and raising this non-issue now is meritless. (Instruction Conferences, 3/11 a.m., pp. 42-43; 3/11 p.m., pp. 9-14). There is no substantive difference in the instructions. The version this court used is not redundant like the one Ford tendered.

This court gave plaintiff's special interrogatory as follows:

Was the driver's seat of the Mikolajczyk car in an unreasonably dangerous condition that was a proximate cause of James Mikolajczyk's death?

For inexplicable reasons, Ford complaints now that the interrogatory was wrong to give because it “repeated the error of several other instructions by referring to the unreasonably dangerous condition of the car or of the driver's seat, rather than the front seat design.” Memorandum, p. 23. The 400.01 instruction given to this jury, plaintiff's entire case, and plaintiff's closing argument made it plain that the unsafe condition of this vehicle was “the driver's seat was designed with inadequate strength.” Plaintiff believes this jury understood that the unreasonably dangerous condition of the car related to plaintiffs claim.

The jury had no problem understanding or answering the interrogatory as phrased. The interrogatory plaintiff tendered was simple, concise, and its answer would test the verdict either way. For those reasons, it was appropriate to give the interrogatory. Ford's proposed interrogatories were improper in form, were redundant of plaintiff's interrogatory, and would not necessarily test the verdict. Ford's first interrogatory imposed on the plaintiff the burden to prove the seat design was both “defective” and “unreasonably dangerous.” It did not define defective, and that dual burden is not one that plaintiff bears under the settled IPI instructions on product liability. The second Ford interrogatory only asks whether the design was a proximate cause of the death. Plaintiff was required to prove that the unreasonably dangerous condition of the vehicle was a proximate cause of the death. An answer to the second interrogatory would not test the verdict since the design could be a proximate cause of the death without being unreasonably dangerous.

The court exercised its discretion to choose the interrogatory that best suited the case. It did so.


Ford contends that the verdict is excessive and necessitates either a new trial or remittitur. The evidence at trial supports the jury's verdict. Ford's strategic choice not to object to plaintiffs damages evidence, not to cross-examine plaintiffs damages witnesses, and not to offer any contradictory testimony to plaintiffs damages evidence should not be rewarded by taking away the jury's verdict. This especially holds true where Ford chose not to object to plaintiff's closing argument, and chose not to address plaintiff's request for damages in its closing argument.


Jim Mikolajczyk died at age 46. According to Life Tables in evidence, his life expectancy was 31.9 years. Jim was survived by his wife of 19 years, Connie, his 14 year old son, Adam, and his 10 year old daughter, Beth. The jury was properly instructed that “where a decedent leaves widow and children the law recognizes a presumption that widow and children have sustained some substantial pecuniary loss by reason of the death.” Plaintiffs Instruction 19D; I.P.I. 31.04 ; Balzekas v. Looking Elk , 254 Ill. App. 3d 529, 537 (1st Dist. 1993). Ford offered no evidence to counter this presumption, nor did it ask a single question of Connie, Adam or Beth on cross-examination.

The jury heard from Connie how she fell in love with Jim on their second date. (Connie, 3/4 p.m., pp. 82-3). Adam described to the jury how Connie and Jim expressed their love for each other by holding hands while driving in the car, and dancing together in the kitchen.(Adam, 3/4 p.m., p. 69). Beth told the jury how her mom and dad sang to each other and enjoyed reading the paper together. (Beth, 3/3 p.m., pp. 71-2). Now, Connie is under the stress of doing a two-person job by herself. (Adam, 3/4 p.m., p. 77). She is more serious than she has ever been. (Id.).

Connie described her loss of society as follows:

Each and every day you miss him. You long for him. It never changes. It marks who you are wherever you are. He was my best friend then. He continues to be my best friend now. He was the kindest, most wonderful person I had ever met and have ever met and every happy thing there is sadness. Even the mundane, enjoying a piece of chocolate, going for starlit walk, looking at the colors in the fall that you enjoyed with him, it's not the same. The enjoyment is gone. Not to say that I don't love my children or that I don't have friends, but it's just not the same.

(Connie, 3/4 p.m., p. 104) .

Jim was a wonderful father to their two children, and always had time for them no matter how tired he was after work.(Connie, 3/4 p.m., p. 84). The jury saw a picture of Jim and the kids making the universal sign for “I love you,” which the family signed to each other every day as he drove off to work. (Connie, 3/4 p.m., p. 89). The family did everything together, from fun activities to household chores. (Adam, 3/4 p.m., p. 67; Connie 3/4 p.m., pp. 97-8). Adam described for the jury how the family always waited for Jim to return home from work for dinner so they could eat as a family.(Adam, 3/4 p.m., p. 67). Every morning Jim would tell his children to make sure to learn something at school that day, and every evening he would ask them what they learned and discuss each other's day. (Beth, 3/3 p.m., p. 71; Adam, 3/4 p.m., p. 68). On Saturdays, the family would clean the house together, and then go to the movies and to dinner.(Beth, 3/3 p.m., p. 72). Sundays were spent as a family with a trip to church, breakfast at home, house and schoolwork, and then renting a movie at night. (Id.).

Adam appeared to handle his father's death well to outside observers, but at home he acted out on his anger.(Connie, 3/4 p.m., pp. 99-100). He was always angry, put his fist through the wall, and broke doors. (Id.). With months of counseling, Adam was able to deal with his anger.(Id.). Jim was an enormous influence on Adam's life. He spent time coaching and playing baseball and basketball with Adam. (Adam, 3/4 p.m., p. 70). Jim was Adam's golf partner.(Id.). Most importantly, Adam and Jim shared a love of science that led to nightly discussions between father and son.(Adam, 3/4 p.m., pp. 71-2). Adam attributes his current course of study at Notre Dame, pre-med, to their shared interest in science. (Id.). Since Jim's death, Adam no longer has Jim to help guide him as he continues his medical education. Adam was forced into manhood at age 14 when he took over for Jim as the man of the house. (Adam, 3/4 p.m., p. 78).

According to Adam: “Beth loved my dad horribly and she talked to him about everything. She...couldn't go to bed if he didn't sing to her at night. They were best friends.” (Adam, 3/4 p.m., p. 69). Beth and Jim were always together, and Jim would do anything she asked.(Beth, 3/3 p.m., p. 73). Jim gave Beth advice, and studied and played with her.(Id.). Most importantly, Jim made Beth feel safe. (Beth, 3/3 p.m., p. 74). He sang “You are my sunshine” to Beth every night at bedtime. (Id.).

Beth is constantly afraid since her father's death. (Connie, 3/4 p.m., p. 101). Even at age 15, Beth is Connie's constant companion. (Id.). She has turned her room into a shrine for her father. (Connie, 3/4 p.m., p. 102). Adam described Beth as the stereotypical “daddy's girl.” (Adam, 3/4 p.m., p. 68). Now, Beth is an introvert. (Adam, 3/4 p.m., p. 77). She is so afraid that something is going to happen to her family that she props chairs under the doors at night.(Id.).


Ford made the strategic decision not to ask a single question of Connie, Adam or Beth. Ford did not object to any of plaintiff's damages evidence concerning loss of society. In closing, plaintiff's counsel reminded the jury of the evidence it had heard and asked them to return a verdict of $27 million, $25 million of which represented loss of society. (Closing Argument, Mr. Pfaff, 3/15, p. 57). After hearing all of the evidence, the jury did just that. Ford said nothing in closing regarding plaintiffs counsel's suggestion that the jury award $27 million, nor did it suggest a fair and reasonable award to the jury. By failing to object to plaintiffs request for $27 million, and by failing to present any evidence or argument to address damages, Ford waived any objection to the amount awarded by this jury. Lawler v. MacDuff , 335 Ill. App. 3d 144, 149 (2nd Dist. 2002) (objection to erroneous jury instruction waived when party fails to tender and argue for an alternate instruction to the trial court); Perez v. Hartmann , 187 Ill. App. 3d 1098, 1108 (1st Dist. 1989) (failure to argue to trial court that party was prejudiced by reference to barred EKG strip in exhibits constituted waiver).


Ford suggests that this court should look at the size of other awards for loss of society and determine that this award is too high. Memorandum, pp. 33-6. Illinois law holds just the opposite. The “clear weight of Illinois authority” rejects the “comparison” concept. Velarde v. Illinois Central R.R. Co. , 354 Ill.App.3d 523, 543 (1st Dist. 2004) ($28 million non-economic damages award upheld for driver, $15.5 million non-economic damages award upheld for passenger); Richardson v. Chapman , 175 Ill.2d 98, 114 (1997) ($10.2 million non-economic award upheld for driver); Barry v. Owens-Corning Fiberglas Corp. , 282 Ill. App. 3d 199, 207 (1st Dist. 1996) ($11.85 million non-economic award upheld); See also Barton v. Chicago and North Western Transp. Co. , 325 Ill.App.3d 1005 (1st Dist. 2001) ($28 million non-economic damages award upheld); Hansen v. Baxter , 309 Ill. App. 3d 869, 886 (1st Dist. 2000) ($18 million non-economic award upheld) aff'd 198 Ill. 2d 420 (2002).

Determining the amount of damages is the function of the trier of fact. Jones v. Chicago Osteopathic Hospital , 316 Ill. App. 3d 1121, 1138 (1st Dist. 2000). This important principle is evidenced in the Seventh Amendment to the Constitution of the United States, which states:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right to trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to rules of the common law.

The jury's award of damages must not be disturbed unless is obvious that the award is the result of passion and prejudice and the amount falls outside the limits of fair and reasonable compensation and shocks the conscience of the court. DeYoung v. Alpha Construction Co. , 186 Ill. App. 3d 758, 767 (1st Dist. 1989). The First District Appellate Court described its reluctance to tamper with damages awards in Barry as follows:

“Reviewing courts rarely disturb jury awards. For good reason. We are in no better position to judge the appropriate amount of a verdict than are the 12 people who see and hear the arguments and the evidence. They use their combined wisdom and experience to reach fair and reasonable judgments. We are neither trained nor equipped to second-guess those judgments about ... familial losses incurred by other human beings. To pretend otherwise would be sheer hubris.” Barry v. Owens-Corning Fiberglas Corp., supra at 207.

Judge Anthony Bosco presided over the DeYoung trial. As in the case at bar, defendants filed a post-trial motion alleging that the damages awarded were excessive and that defendants were entitled to a new trial. In denying defendants' motion, Judge Bosco astutely stated:

[The jurors] were very careful and deliberate in their attention to the offerings of evidence, to the remarks of counsel, to the rules of the court, and to all the goings-on in the trial...I think they made an excellent effort to try to obey all the orders of this court, to follow the rules of this court and to really immerse themselves into their office of jurors, to really absorb what was going on. I am asked to substitute my judgment for theirs. I'm no better than those twelve. I can't put a value on this case better than they. If I were to grant a new trial on damages only, what would I be doing? Would I be saying that it's possible that you can get a better group of twelve? I don't know. Is it possible to get a worse group of twelve? I don't know. But we had those twelve, and they certainly satisfied me, they convinced me that they were responsive to the evidence and that's all I have to be aware of. If I am convinced as I am that these twelve people were, in fact, responsive to the evidence and their efforts ruled [sic] in that verdict even though it be in the millions then who am I to set that verdict aside, why am I better than twelve of them, I am not. DeYoung v. Alpha Construction Co., supra at 755-756.

The Mikolajczyk jury was similarly attentive and conscientious.

Ford alleges that “[e]vidently, as a result of outrage regarding Timberlake's drunken behavior, the jury assessed a punitive verdict that took the form of the intangible loss of society aspect of the wrongful death award.” Memorandum, p. 36, et seq. Each citation to “grossly negligent” conduct reflects evidence Ford offered over Plaintiffs' objection. Counsel for Ford best summarizes the fallacy of Ford's post trial argument:

MR. COLEMAN: I haven't had a chance to talk to Mr. Boyle yet, your Honor, and I don't think he's read the transcript. I see that the lawyers stipulated to the fact that the blood-alcohol level was 2.48 I think or .248. I think that that plea has got to go in. That's maybe argument for another day, but if we get the plea in, your Honor, with, you know, the fact that this man was intoxicated, I don't intend to go after Alvarez or anybody else, and I have to talk to Mark about it, your Honor, but I don't want to, you know, as Mr. Pfaff would say pile on Mr. Timberlake because my concern obviously is that the jury gets aggravated with him and returns a huge verdict, and if we get caught in that mess like we did in Carrillo, that's not going to do us any good either, so we want the intoxication in, but we don't want to pile it up.

(3/1 p.m., pp. 136-7) .

Ford made the strategic choice to “pile it up.” Ford offered the evidence regarding Mr. Timberlake's intoxication, his failure to apply his brakes, and his giggling at the scene after the collision. Ford cross-examined Dr. Saczalski regarding the “frightening severity” of the impact. Ford's strategy failed. It should not now benefit from its unsuccessful choice to attack Mr. Timberlake, whose fault was determined prior to trial, in Ford's failed effort to elevate his percentage of fault.

Ford alleges that this court erred in refusing to issue IPI 31.07. Memorandum, p. 40. Ford cites to no evidence in the record of grief or sorrow. With regard to poverty or wealth, Ford did not object to any of the evidence cited in this section of its brief. Further, Ford's motion does not clearly state whether it was harmed by possible inferences of poverty, or inferences of wealth. Ford notes that Connie works as a school secretary, and that Adam received a full academic scholarship to Notre Dame. Any argument that the jury rewarded the Connie for being gainfully employed and not having to pay for Adam's college must fail.


Ford's final request with regard to damages is for a “substantial remittitur ” of the loss of society award to a maximum of $6 million It cites no basis in the record for that amount. The argument presented by Ford is contrary to both our law and the concept of fundamental fairness. Plaintiffs and defendants were permitted to present their arguments to a jury. Both sides were entitled to address the arguments of the other. Ford chose not to address the amount of damages with the jury, but opted to wait to see the outcome before raising the issue.

While Illinois law recognizes that remittitur may be appropriate in certain limited circumstances, the courts of Illinois does not favor remittitur nor may it be considered in the fashion suggested by Ford. In Dahan v. U.H.S. of Bethesda, Inc. , 295 Ill. App. 3d 770, 782 (1st Dist. 1998), the First District Appellate Court reversed a trial court's decision to remit a small portion of a substantial jury award, stating that: “[A] trial judge does not have the power to speculatively and gratuitously negate a jury's verdict; rather, a basis in fact, evidenced by the record, must exist showing the award was erroneous or was the result of prejudice or passion before it can be reduced.” The trial court had articulated no basis for reducing the jury's award. The Appellate Court held that remittitur was improperly granted. Similarly, in the case at bar, Ford has not provided this court with any specific, articulated basis for reducing this verdict. See also Medina v. City of Chicago , 238 Ill. App. 3d 385, 396 (1st Dist. 1992) ( remittitur reversed); Batterton v. Thurman , 105 Ill. App. 3d 798, 804-5 (3rd Dist. 1982) ( remittitur reversed).

The evidence in the record fully supported the damages this jury awarded to plaintiff. In seeking remittitur , it is Ford's obligation to show the court where the verdict exceeds the proven damages. To warrant remittitur , the verdict must be excessive. Defendants have not and cannot direct this court to any reason why the verdict here exceeds what plaintiff proved. Remittitur is unwarranted.



Evidence of similar occurrences or injuries involving the same or substantially similar products may be admissible to establish that the product is defective. Bass v. Cincinnati, Inc., 180 Ill. App. 3d 1076, 1081 (1st Dist. 1989) ; Rucker v. Norfolk & W. Ry. Co., 77 Ill. 2d 434, 440-1 (1979). The incidents need not be identical, just substantially similar.Carrillo v. Ford Motor Co., supra at 967-968; Gowler v. Ferrell-Ross Co., 206 Ill. App. 3d 194, 202 (1st Dist. 1990). InCarrillo, the trial court's decision to allow OSI evidence was affirmed. Id. The foundation for the two OSI's in Carrillowas established by Dr. Saczalski, plaintiffs expert in this case as well. Because plaintiff met the foundation, Debbie Newman and Sandy Hensler were allowed to testify regarding their rear impact collisions. The evidence of substantial similarity between Lydia Carrillo's collision and those of Debbie Newman and Sandy Hensler was essentially that: 1) the injured person was hit from behind; 2) the injured person was sitting in a “yielding” seat that the experts agreed would act similarly in a rear impact; 3) the seats collapsed; and 4) the injured person suffered serious injury due to an impact with an object or component in the rear of the vehicle. Id. On appeal, Ford argued unsuccessfully that: 1) the incidents were not substantially similar because Lydia Carrillo was driving a 1991 Explorer, while Debbie Newman and Sandy Hensler were driving Aerostar minivans, and Lydia's collision was more severe; and 2) the evidence was emotionally charged and served only to inflame the jury. Id. The First District Appellate Court rejected Ford's arguments and affirmed.

Here, plaintiff offered 20 OSI's for admission. All of the OSI's offered by plaintiff were substantially similar to the Mikolajczyk collision, in that: 1) the injured person was hit from behind; 2) the injured person was sitting in a “yielding” seat that the experts agreed would act similarly in a rear impact (or behind such a seat); 3) the seats collapsed; and 4) the injured person suffered serious injury as a proximate result of the collapsed seat. The court, in its discretion, allowed only three: Teeters, Potter and Bitters.

In product liability actions, testimony as to reasonably similar occurrences is admissible to establish that the cause of each accident was a dangerous or unsafe condition. Cleary and Graham's Handbook of Illinois Evidence, 7th ed., p. 182. Evidence from incidents that occurred under different circumstances may be of more probative value than evidence that is restricted to identical circumstances. Variation in circumstance allows the jury to see how the product held up when exposed to various factors. Preclusion of such evidence prevents the jury from learning how the product performed under the diverse conditions under which both people and products must function.

In Rucker v. Norfolk & W. Ry., 77 Ill. 2d 434 (1979), plaintiffs decedent was killed when a petroleum gas tank car exploded after being punctured by a coupler. At trial, plaintiff introduced 42 examples of tank cars being punctured, although 16 were punctured by means other than a coupler. The Supreme Court upheld the trial court's admission of all 42 incidents because they went to show the susceptibility of the tank cars to puncture. Id. at 441. Thus, Ruckerlooked at the dangerous condition in question (the susceptibility to puncture) to determine the similarity of the proffered incidents.

Following Rucker, Illinois courts have continued to look at the nature of the defect in determining the similarity of the incidents. In Schaffner v. Chicago & Northwestern Transp. Co. , 129 Ill. 2d 1, 39 (1989), plaintiff sued the bicycle manufacturer after the front wheel of his bicycle became disengaged while crossing a railroad track. The court admitted evidence of 131 incidents of wheel disengagement that occurred on bicycles that were not equipped with a positive retention device. Id at 39. The testimony was properly received to show that the design of the bicycle was unreasonably dangerous.

In Doyle v. White Metal Rolling and Stamping Corp. , 249 Ill. App. 3d 370, 383 (1st Dist. 1993), plaintiff sued a stepladder manufacturer. At trial, plaintiffs witness testified that he fell off a similar ladder that was five feet high and set on solid ground. Admission of the testimony was upheld on appeal. Similarly, in Biehler v. White Metal Rolling & Stamping Corp. , 65 Ill. App. 3d 1001 (3rd Dist. 1978), plaintiff brought a product liability suit after the ladder he was using tipped over. The trial court excluded two of plaintiff's witnesses who were going to testify concerning similar occurrences. The exclusion constituted reversible error. Id. at 1002.

To show that a cracking mill was unreasonably dangerous, the trial court allowed evidence of similar incidents at other plants. Gowler v. Farrel-Ross Co., supra. Plaintiff's hand was caught in the rollers of a running nip in a cracking mill. In order to show that the design defects of the Ross running nip made it unreasonably dangerous, plaintiff introduced evidence of other injuries involving the machine. The admission was upheld on appeal, since the incidents occurred when the injured parties' hands were in the nip when it turned on. The court held that since the injuries arose from the same defect, the other occurrences were sufficiently similar. Id. at 105.

Moore v. Jewel Tea. Co . 116 Ill. App. 2d 109, 129 (1st Dist. 1969) aff'd 46 Ill. 2d 288, was a product liability case involving unopened cans of exploding Drano. The Appellate Court found that evidence of three prior events in which an unopened Drano can exploded was competent to show the common cause of the accidents was a dangerous and unsafe thing.

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