Thornton v. Garcini

3--04B0725
____________________________________________________________________
filed April 6, 2006.
IN THE APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2005

TONI THORNTON, Individually )
and as Special Administrator of the )
Estate of Jason Anthony Ebner, )
Deceased ) Appeal from the Circuit Court
Plaintiff-Appellant, ) For the 12th Judicial Circuit
) Will County, Illinois
)
v. )
) No. 01 L 20
)
FRANCISCO J. GARCINI, )
Honorable Robert C. Lorz
Defendant-Appellee. ) Judge, Presiding
_________________________________________________________________________
_____

JUSTICE O=BRIEN delivered the opinion of the court:
______________________________________________________________________
________

Following a jury trial, defendant Francisco Garcini, M.D., was found not liable for

wrongful death, and intentional infliction of emotional distress in an action brought by

plaintiff Toni Thornton in connection with the death at birth of her baby, Jason Ebner.

Thornton appeals from the trial court=s order entering judgment in favor of Garcini. We

reverse the trial court and remand the cause for a new trial.

FACTS

The record indicates that on August 28, 2000, at approximately 6 to 6:30 a.m,

plaintiff Toni Thornton was admitted to Silver Cross Hospital in Joliet, Illinois. Although

there is some question about the exact time she was admitted, the records indicate that at
6:30 a.m. certain medications were given to Thornton based on instructions given by

defendant Garcini via phone to the treating nurses. Garcini had seen Thornton on one

other occasion, August 21, 2000. During this appointment, Garcini took a medical history

of Thornton that included the fact that she had previously given birth prematurely. An

approximate date of April 1, 2000, was noted for her last menstrual period. When Thornton

was admitted to the hospital on August 28, 2000, the notation on the admission form

indicated a gestational age for the baby of 23 5/7 weeks, based on a last menstrual period

of March 18, 2000.

Dr. Garcini was contacted at home regarding Thornton=s admission to the hospital.

Garcini ordered the administration of certain drugs to Thornton and ordered an ultrasound

administered. Garcini testified he took a shower and waited at home for information

regarding the test results. Garcini testified that from the information given to him by the

nurses he did not believe Thornton was going to imminently deliver. He also indicated that

at 23 5/7 weeks, Thornton would be considered a high risk delivery. Garcini was paged a

second time at home. He was in the shower and did not immediately answer the page.

By the time Garcini phoned the hospital, he was informed that Thornton had partially

delivered Jason. Jason was in a breech position and he became entrapped at the head.

Garcini testified he instructed the nurses not to force the full delivery of Jason. No other

obstetricians were available at the hospital. Garcini testified he was aware that if Jason

was not fully delivered in a short period of time he would die. The partial delivery occurred

at approximately 7:10 a.m. Garcini arrived at the hospital at 8:20 a.m., 35 minutes after he

left home, and approximately 1 hour and 50 minutes after he was first contacted. Once at

the hospital, Garcini removed Jason, who was then deceased, from Thornton. Jason=s

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weight was 907 grams or approximately 2 pounds.

Dr. Charles Bird, an obstetrician-gynecologist, testified as Thornton=s expert. Bird

testified that in his opinion Garcini had violated the standard of care in not leaving

immediately for the hospital once he was informed Thornton was in labor. Bird based his

opinion on Thornton=s previous history, the term of the pregnancy, her condition as

described to Garcini by the nurses and the fact that Garcini could not anticipate that

another doctor might be available to aid Thornton.

Bird stated that based on Jason=s weight, he estimated his gestational age at no

lower than 26 weeks and as high as 28 weeks. Bird did not believe Jason was a 23-week-

old baby, as, in his opinion, at 23 weeks, babies weigh a little over one pound, not two

pounds. Dr. Bird admitted that a comparison of gestational age and gestational weight to

arrive at an adjusted gestational age was a process used by neonatologists, not

obstetricians. Dr. Bird=s opinion included the following conclusions: Jason would have had

a chance to survive if Garcini, the hospital and the nurses had not breached the required

standard of care; he could have been delivered successfully; and had he been delivered

successfully, Jason would have had an 85% chance of survival. Dr. Bird agreed that 74%

of infants at 24 weeks do not survive to a point where they can be successfully discharged

from the hospital. Dr. Bird also acknowledged the doctor who performed Jason=s autopsy

noted the baby=s gestational age as approximately 23 weeks.

Dr. DuBoe, a obstetrician/gynecologist, testified as an expert for Garcini. DuBoe

testified that, in his opinion, Garcini complied with the standard of care in his treatment of

Thornton. In Duboe=s opinion, when Garcini was first notified of Thornton=s admission to

the hospital, there was no indication she was going into rapid delivery.

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 Dr. Hulac, a neonatologist, testified in Garcini=s defense. Hulac opined that a weight

of 907 grams could be consistent with a 23- or 24-week-old fetus as well as a 26- or 27-

week-old fetus. Hulac pointed to the fact that Jason=s eyelids were still fused as indicative

that at delivery he was younger than 26 weeks. Basing his opinion on the survivability of a

23- or 24-week-old fetus, Hulac opined it was unlikely Jason would have survived to 28

days. Hulac also testified that had Jason survived, he would have had profound struggles,

including the possibility of loss of intestine, liver damage, lung damage, eye damage, ear

damage, and brain damage.

At the close of the trial, the trial court, as part of the jury instructions and over

Thornton=s objection, gave the following instruction: AIn determining pecuniary loss, you

may consider what the evidence shows concerning the following: His age, his health; his

physical and mental characteristics; the relationship between Jason Ebner, decedent, and

his parents and brother.@ The jury found in favor of Garcini and the trial court entered an

order against Thornton.

Thornton filed a posttrial motion, stating, in part, that she had received information

indicating that jurors had been exposed to prejudicial extrinsic information during their

deliberations. The trial court granted Thornton=s request to seek limited discovery on

whether the jurors= verdict may have been improperly influenced by the articles in question.

In granting leave to Thornton to conduct the discovery, the trial court stated:

A[I]t would be possible for a juror to come to the conclusion *** that

from the proximate cause end that it didn=t matter what Dr. Garcini did ***they

could have found that it didn=t make any difference whatsoever because even

if Dr. Garcini had been standing there, there may not have been anything that

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 he could have done *** that if this baby had been delivered that the baby

simply would not have survived so that it didn=t matter. And these articles

clearly discuss those issues; and more importantly discuss those issues in

the context of other medical experts rendering opinions with respect to those

issues.@

Each of the jurors was sent a questionnaire. They were asked if they had read any

of the following three articles: AA Fragile Fighter,@ AIn Naperville, a Very Small Miracle,@ or,

A>Preemie= Care Advances.@ One juror responded he had read A>Preemie= Care Advances.@

He indicated he had not discussed the article with any of the other jurors. A second juror

admitted to having read AA Fragile Fighter,@ and also denied having discussed the article

with any of the other jurors. The remaining jurors all responded that they had not read any

of the articles. The questions on the juror questionnaire were framed so that only those

jurors who admitted to reading an article were required to respond to the question of

whether they had discussed the articles with any other jurors.

The article, A>Preemie Care Advances,@ included the statement that Silver Cross

Hospital (the hospital to which Thornton was admitted) was equipped to take care of

premature babies born at 28 weeks who weighed more than three pounds, three ounces.

Two doctors, practitioners of newborn and neonatal care, were quoted in the article. The

doctors made statements regarding the survivability of premature babies and the health

and medical concerns for premature infants. One doctor stated that a 23-week baby

weighing one pound had only a 5%-10% chance of survival, whereas a 27-week baby

weighing two pounds had a 90% survival rate. The other doctor stated that some of the

concerns with respect to premature babies included possible blindness, and hemorrhage

5
of the brain, for which there is no treatment. The other article, AA Fragile Fighter,@

described the concern of a mother who ultimately gave birth to a 27-week-old baby. The

article referred to the mother=s fear that if she failed to carry the baby beyond 24 weeks,

Athe baby would almost certainly die.@

After receipt of the jurors= questionnaires, the trial court again stated the articles read

by the jurors concerned an issue critical to the case. The trial court also stated the articles

were supportive of Thornton=s position in that the general tenor of the articles was that

medical advances give premature babies a better chance of survival than in the past. For

this reason, the trial court determined the articles did not present material to which

Thornton had not had a chance to respond. The trial court concluded there was Avery little

probability that the articles had an adverse impact on [the] case,@ and declared the trial fair.

Thornton also asserted in her posttrial motion that the trial court erred in giving an

instruction that allowed the jury to consider elements for determining pecuniary loss that

were not relevant to her claims for loss of society and were unduly prejudicial. The trial

court denied Thornton=s posttrial motion and she follows with this appeal.

ANALYSIS

On appeal, Thornton asserts the trial court erred in failing to grant a new trial where

newspaper articles that had been read by some of the jurors may have improperly

influenced the verdict. ANot every instance in which extraneous information reaches [a] jury

constitutes reversible error.@ People v. Collins, 351 Ill. App. 3d 175, 179, 813 N.E.2d 285,

289 (2004). However, when such information reaches the jury, it is presumptively

prejudicial. Collins, 351 Ill. App. 3d at 179, 813 N.E.2d at 289. The party challenging the

6
verdict needs to show only that the information relates directly to something at issue in the

case which the losing party did not have the opportunity to refute and that may have

influenced the verdict. Haight v. Aldridge Electric Co., 215 Ill. App. 3d 353, 369, 575 N.E.2d

243, 254 (1991). The losing party need not prove actual prejudice. Haight, 215 Ill. App. 3d

at 369, 575 N.E.2d at 254. The burden shifts to the nonmoving party to show a lack of

prejudice. Collins, 351 Ill. App. 3d at 181, 813 N.E.2d at 290. The standard to be applied

is whether the conduct at issue involved such a probability of resulting prejudice that the

verdict must be deemed inherently lacking in due process. See Collins, 351 Ill. App. 3d at

180, 813 N.E.2d at 290. The vital question is whether the jurors exposed to the information,

or any of them, were influenced and prejudiced to such an extent that they would not or

could not be fair and impartial jurors. See Van Hattem v. K mart Corp., 308 Ill. App. 3d 121,

129, 719 N.E.2d 212, 220 (1999). AA verdict may stand only if it is >obvious= that no

prejudice accrued to the defendant.@ Collins, 351 Ill. App. 3d at 179-80, 813 N.E.2d at 289-

90, quoting People v. Hobley, 182 Ill. 2d 404, 462, 696 N.E.2d 313, 341 (1998).

With respect to the effect of a supposedly unbiased news report, the impact on the

jury cannot be underestimated when the report has articulated, bolstered and supported the

nonmovant=s theory of the case. See Van Hattem, 308 Ill. App. 3d at 131, 719 N.E.2d at

221. A trial court should not consider conclusive a juror=s statement that reading a

prejudicial newspaper article has not influenced him. Van Hattem, 308 Ill. App. 3d at 130,

719 N.E.2d at 220. The determination of whether prejudice has occurred rests in the sound

judicial discretion of the court after it has considered all the facts and circumstances. Van

Hattem, 308 Ill. App. 3d at 130, 719 N.E.2d at 220 (finding trial court abused its discretion

in denying defendant=s motion for a mistrial where the court questioned only those jurors

7
who had seen the prejudicial newscast, but not those who had heard of the program but not

seen it).

In the instant case, a crucial issue in the proceedings was whether Garcini breached

a standard of care in delaying to proceed directly to Silver Cross Hospital once he learned

his patient was in premature labor there. Also the subject of extensive testimony was the

gestational age of the baby, Jason, and his relative ability to survive outside the womb. The

gestational age that was discussed varied from 23 to 28 weeks. Garcini argues that the

survivability of baby Jason was not relevant to the issue of liability, an issue decided in

Garcini=s favor. Further, Garcini asserts, the parties= experts agreed that if baby Jason=s

gestational age was between 23 to 24 weeks, his chances for survival were gravely

threatened. As the trial court pointed out, however, the gestational age and survivability of

Jason did relate to the crucial question of whether Dr. Garcini proximately caused the death

of Jason. Although the articles, in general, dealt with medical advancements in the care of

premature babies, they also bolstered the idea that at the lower end of the gestational age

spectrum discussed, premature babies were unlikely to survive. These articles had the

potential to influence anyone who read or discussed them to conclude that, in the words of

the trial court, A if this baby had been delivered that the baby simply would not have

survived so that it didn=t matter.@

The trial court correctly surmised that the articles related to a crucial issue in the

case: whether Dr. Garcini proximately caused the death of baby Jason. Following an

investigation, by way of a Afill-in-the-blank@ questionnaire, the trial court concluded the

jurors were not prejudiced by exposure to the articles. The jurors were not personally

questioned by the court and only those jurors who admitted reading an article were required

8
to respond to a query of whether the articles had been discussed during deliberations. The

results of this process did not satisfy Garcini=s burden to demonstrate that no juror was

prejudiced by these extraneous materials. If any juror exposed to the articles in any way

was in doubt as to whether the cause of baby Jason=s death was the inaction of Dr. Garcini

or the baby=s inability to survive due to his gestational age, the extraneous articles could

have tipped the scales, resulting in an improperly influenced verdict.

We find that the articles related to a crucial issue of the case. Thornton did not have

the opportunity to question the information or the sources relied upon in the articles. The

court did not conduct a thorough inquiry into the possibility that any one of the jurors may

have been improperly influenced by the articles. For these reasons, it is not Aobvious@ that

no prejudice accrued to Thornton and it was an abuse of discretion for the court to

conclude otherwise. We reverse the trial court and remand the cause for a new trial.

We also address two further issues Thornton has raised on appeal that may arise on

retrial.

The first issue is whether the trial court erred in allowing a jury instruction which included in

its definition of pecuniary loss, the age, health, physical and mental characteristics of the

decedent and the relationship of the decedent with parents and siblings. Given that the

instruction that the trial court gave is a standard Illinois pattern instruction, the only issue is

whether the instruction is clear enough to avoid confusing the jury and whether it fairly and

accurately states the applicable law. Hendrix v. Stepanek, 331 Ill. App. 3d 206, 215, 771

N.E.2d 559, 567 (2002). Whether a jury instruction is an accurate statement of law is a

question to be reviewed de novo. Luye v. Schopper, 348 Ill. App. 3d 767, 773, 809 N.E.2d

156, 161 (2004).

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 Under Illinois law, when a child dies as a result of the tortious acts of another, the

parents are presumed to have suffered a pecuniary injury in the form of loss of society.

Simmons v. University of Chicago Hospital & Clinics, 247 Ill. App. 3d 177, 182, 617 N.E.2d

278, 283 (1993). This loss is compensable in a wrongful death action even in the case of

stillbirths. Seef v. Sutkus, 145 Ill. 2d 336, 338-39, 583 N.E.2d 510, 511-12 (1991) (finding

that under the Wrongful Death Act, regardless of the state of gestation, an unborn fetus is

recognized as a person and parents may recover damages for pecuniary loss resulting

from the death of the unborn fetus). Within the concept of loss of society is the notion of

the future companionship, guidance, love, advice, affection and comfort that would have

been exchanged between the parents and the child but for the defendant=s negligence.

Simmons, 247 Ill. App. 3d at 182-83, 617 N.E.2d at 283. The parents= right to recovery for

loss of society does not depend upon whether there has been some exchange of society in

the past, but whether but for defendant=s negligence, society would have been exchanged.

Seef, 145 Ill. 2d at 342, 583 N.E.2d at 513 ( Miller, J., specially concurring). Although

consideration of the length, intensity, and quality of the parent-child relationship may in

some cases be useful in measuring the magnitude of the parents= loss, it does not

determine whether a loss occurred. Seef, 145 Ill. 2d at 344, 583 N.E.2d at 514 (Miller, J.,

specially concurring).

In the instant case, the instruction at issue that was given to the jury read, in part, as

follows: AIn determining pecuniary loss, you may consider what the evidence shows

concerning the following: His age, his health; his physical and mental characteristics; the

relationship between Jason Ebner, decedent, and his parents and brother.@ The instruction

appears to instruct the jury that the loss of Jason=s society was somehow dependent on

10
some relationship that had been established in the past. This is not the state of the law in

Illinois and may have misled the jury into believing damages for loss of society were not

appropriate because Jason did not live long enough to have had a relationship with his

family. Any instruction given to the jury with respect to the parents= loss of Jason=s society

should clearly indicate that the determination of a loss is not dependent upon the family

having enjoyed a past relationship with Jason, but is a consideration of the future

companionship the family may have enjoyed.

The final issue we address is whether the trial court erred in allowing Garcini=s expert

to testify about the likelihood that Jason would have been born with disabilities. A trial

court=s decision to admit evidence will not be disturbed absent an abuse of discretion. Gill

v. Foster, 157 Ill. 2d 304, 312-313, 626 N.E.2d 190, 194 (1993). Evidence that is relevant

may be excluded if its probative value is outweighed by such factors as prejudice,

confusion, or potential to mislead the jury. Gill, 157 Ill. 2d at 313, 626 N.E.2d at 194.

If liability is found in a wrongful-death-of-a-child action, the presumption is that the

parents have suffered a pecuniary injury in the form of a loss of the child=s society. Bullard

v. Barnes, 102 Ill. 2d 505, 517-19, 468 N.E.2d 1228, 1234-35 (1984). The presumption is a

rebuttable one. Defendants may, for example, present evidence that the parent and child

were estranged, or that a set-off for child-rearing expenses is appropriate. Bullard, 102 Ill.

2d at 517, 468 N.E.2d at 1234. The defendant may produce evidence that irrespective of

the defendant=s negligence, the child was unhealthy, or unlikely to live beyond majority.

Smith v. Mercy Hospital & Medical Center, 203 Ill. App. 3d 465, 477, 560 N.E.2d 1164,

1172 (1990). In Flynn v. Vancil, the jury found the defendant liable but awarded no

damages for pecuniary loss where the two-week old child was suffering from an incurable

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congenital condition. Flynn v. Vancil, 41 Ill. 2d 236, 240-41, 242 N.E.2d 237, 240-41 (1968).

Ultimately, it is for the jury, as the trier of fact, to hear the contrary evidence, weigh the

facts and decide whether to award damages. Smith, 203 Ill. App. 3d at 478, 560 N.E.2d at

1172.

Thornton asserts that it is inappropriate for Garcini to imply that the potential

disabilities of baby Jason mitigate the loss of society suffered by his parents. The argument

is based, in part, on the case of Dralle v. Ruder,124 Ill. 2d 61, 529 N.E.2d 209 (1988). In

Dralle, the court concluded that damages for loss of society resulting from nonfatal injuries

to a child were not recoverable. Dralle, 124 Ill. 2d at 71, 529 N.E.2d at 213-14. The Dralle

court noted, in part, that allowing recovery for loss of society in a nonfatal injury case would

result in the A>unseemly spectacle=@ of parents disparaging the "=value=" of their children in

open court so as to minimize any offset argued by the defendant. Dralle, 124 Ill. 2d at 71,

529 N.E.2d at 213, quoting Cockrum v. Baumgartner, 95 Ill. 2d 193, 202 (1983). The Dralle

court considered such a situation to be in sharp contrast with the situation in a wrongful

death action, where the opposite is argued, and loss is presumed. Dralle, 124 Ill. 2d at 71,

529 N.E.2d at 213. As stated in Vitro v. Mihelcic, the Dralle decision was validly based on

the rationale that unlike wrongful death actions which are predicated upon statutory law, the

legislature has not spoken on the issue of loss of society as related to a child who suffers

nonfatal injuries. Vitro v. Mihelcic, 209 Ill. 2d 76, 90, 806 N.E.2d 632, 639 (2004).

In the instant case, Garcini presented opinion testimony that it was likely baby Jason

would not have survived after birth or, if he had, he would have struggled with birth defects.

It was for the jury to weigh this evidence and determine whether the evidence rebutted to

any degree the presumption of loss of society. Based on their knowledge and experience,

12
and the weight they gave the testimony, the jurors could have concluded there was no

potential for serious birth defects, or that if baby Jason survived with defects, there would

be no impact on the society, some degree of diminishment of the full enjoyment of society,

or an enhanced value to the society the family would have enjoyed. It was not error for the

trial court to allow the defendant=s evidence.

For the foregoing reasons, the judgment of the circuit court of Will County is

reversed and the cause remanded for a new trial.

Reversed and remanded.

SCHMIDT, P.J., concurring in part and dissenting in part.

BARRY, J., concurs.

PRESIDING JUSTICE SCHMIDT, concurring in part and dissenting in part:

The majority correctly states that the determination of whether prejudice has

occurred as a result of extrajudicial evidence entering the jury room rests in the sound

judicial discretion of the court after it has considered all the facts and circumstances. Slip

op. at 7. I am of the opinion that the trial court did not abuse its discretion with respect to

its findings regarding the extrajudicial evidence and, therefore, respectfully dissent. This

court has said many times that an abuse of discretion occurs only when no reasonable

person would take the view adopted by the trial court. In re Marriage of Sawicki, 346 Ill.

App. 3d 1107, 806 N.E.2d 701 (2004). In determining whether a trial court abused its

discretion, the question is not whether we agree with the trial court but, rather, whether the

trial court, in the exercise of its discretion, acted arbitrarily without the employment of

13
conscientious judgment or, in the view of all the circumstances, exceeded the bounds of

reason and ignored recognized principles of law so that substantial injustice resulted. In re

Marriage of Lee, 78 Ill. App. 3d 1123, 398 N.E.2d 126 (1979). If reasonable persons could

differ as to the propriety of the action taken by the trial court, then it cannot be said that the

trial court abused its discretion. In re Marriage of Lee, 78 Ill. App. 3d at 1127.

The trial court expended much time and effort in reaching its decision that the jury

was not prejudiced by the extrajudicial evidence. The record reveals that Judge Lorz did a

superb job of reviewing the facts and evidence admitted in the case, case law regarding

extrajudicial evidence, the actual extrajudicial evidence that reached the jury, and the

parties' arguments prior to arriving at his decision. To say that he acted arbitrarily without

the employment of conscientious judgment or he exceeded the bounds of reason and

ignored recognized principles of law is unsupported by the record in my opinion.

Judge Lorz determined that it was obvious that no prejudice resulted from the two

jurors' knowledge of the two articles in question. Ten of the twelve jurors noted in their

questionnaires that they did not read the articles which contained the extrajudicial

information. Two of the jurors admitted reading the articles, but noted they did not "discuss

any of the newspaper articles *** with any other jurors." The trial court could certainly have

reasonably concluded that the winning party met its burden of proving no prejudice to the

losing party occurred where the complained-of extrajudicial articles were not read by 10

jurors and not discussed by the two jurors who admitted reading them. At a minimum,

reasonable minds could differ regarding whether prejudice occurred, in which case

affirmation is mandated, given the abuse of discretion standard.

Judge Lorz's careful analysis, however, did not end there. He expended a great

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deal of energy to review the content of the articles in contrast to the content of the losing

party's evidence. His analysis resulted in a finding that the two were substantially similar.

In other words, he found that there was nothing contained in the articles that would

prejudice the losing party given the evidence the losing party put on to support its case-in-

chief. I agree.

The majority states that the articles bolster "the idea that at the lower end of the

gestational age spectrum discussed, premature babies were unlikely to survive." Slip op. at

8. Specifically, what the articles say is:

"At 24 weeks, she said, she and her husband were faced with

a decision: Either deliver the baby, which would almost certainly die

at that point because of its prematurity, or continue with the pregnancy

and hope the baby continued to live.

Babies can even survive born at 20 weeks, weighing only three-quarters

of a pound, she said, although survival rates are low for these very early

babies.

Mathewson said a 23-week baby that weighs one pound has only a five

to 10 percent chance of making it. But a 27-week preemie that weighs two

pounds, a birth that isn't all that uncommon these days, she says, has a 90

percent survival rate.

Mathewson said that the babies are particularly susceptible to the brain

injuries when they are younger than 32 weeks, when the brain's blood vessels

are very fragile."

The plaintiff's own expert, Dr. Charles Bird, stated that if the baby "is only 23 weeks

15
[then] the poor little soul is not going to survive for obvious reasons." The trial court

examined that specific testimony in light of the statements made in the extrajudicial articles.

While the majority correctly states that the age of the fetus was disputed, it is undisputed

that the evidence put forth by the losing party indicated that if the fetus was, in fact, 23

weeks old, then the chances of it surviving were incredibly slim. Nothing in these articles

states any differently. In fact, the statement in the articles that "babies can even survive

born at 20 weeks, weighing only three-quarters of a pound," arguably helped the plaintiff's

case.

The trial judge acknowledged, as does the majority, that once the losing party shows

that extrajudicial information which relates to a crucial issue in the case reaches the jury,

the winning party then has the burden of proving that the information did not prejudice the

losing party. People v. Collins, 351 Ill. App. 3d 179-80. Again, as the majority correctly

states, the determination of whether prejudice has occurred rests in the sound judicial

discretion of the trial court after it has considered all of the facts and circumstances. Van

Hattem, 308 Ill. App. 3d at 130.

I simply disagree with the majority's conclusion that the results of the process

engaged in by the trial court did not satisfy the winning party's burden to demonstrate that

no juror was prejudiced by the extrajudicial materials. Ten jurors denied reading the

materials. The two jurors that admitted reading the materials denied discussing them with

anyone. The materials themself contain no substantive information that conflicts with the

losing party's own expert's testimony. If anything, the articles substantively help the losing

party's case. Given the fact that the articles substantively support the losing party's expert

testimony, I fail to see how they could prejudice the losing party. There was nothing in the

16
material that plaintiff would have refuted had the material been properly before the jury.

Given these facts, I disagree with the majority's assertion that no reasonable person could

take the view adopted by the trial court and would therefore affirm.

Furthermore, I find reversible error was not committed when the jury was instructed.

The jury rendered a general verdict on liability in favor of defendant. "[I]t is well

established that where a defendant is found not liable, alleged errors pertaining solely to

damages do not afford grounds for a reversal.>>" Dabros v. Wang, 243 Ill. App. 3d 259,

269, 611 N.E.2d 1113, 1120 (1993) quoting Schuchman v. Stackable, 198 Ill. App. 3d 209,

231 (1990).

Finally, I concur with the majority's opinion that Garcini's testimony was proper. I

would affirm the trial court on all issues.

17