Garcez v. Michel

JUSTICE CAHILL,

dissenting:

I respectfully dissent.

The record in this case reveals a precise in limine order entered after a hearing. The transcript of the hearing and the wording of the order make clear that the trial court was aware of the potential for prejudice to both sides when a plaintiff intends to call a dismissed defendant to testify. The hearing and the order are good examples, in my view, of the balancing the trial court is called upon to do when exercising discretion.

The trial court suggested a hypothetical question as an example of the limited inquiry permitted: "Were the former defendants dismissed from the lawsuit because their employer settled with the plaintiff?” This question, almost word for word, was the only one asked of the dismissed defendants that referred to the settlement agreement. Ironically, the dismissed defendants answered "yes.” They admitted the lawsuits filed against them were dismissed only because their employer settled with the plaintiff.

The majority seems to suggest that unless a preliminary inquiry shows that a dismissed defendant has agreed to testify a certain way or will benefit from a judgment for the plaintiff, the potential for bias is too slight to overcome a policy that favors settlements and prohibits reference to them at trial. While the cases the majority cites are good examples of settling defendants who agreed to testify a certain way or would benefit from a judgment for the plaintiff, none of them hold that those are the only circumstances where the potential for bias may be explored. Nor do the cases suggest that a trial court, exercising discretion, make a detailed inquiry in search of bias before allowing cross-examination to explore the potential for bias. In my view, the circumstances under which the testifying defendant were dismissed from this lawsuit were more than adequate to allow limited inquiry into the settlement agreement.

Batteast, the most recent direction from the supreme court on the issue, as the majority notes, affirms a rule of law as well settled as the policy favoring settlement agreements: "If an extrajudicial agreement has the potential to bias a witness’ testimony as to a relevant issue, disclosure is necessary to maintain the fairness and integrity of our judicial system.” Batteast v. Wyeth Laboratories, Inc., 137 Ill. 2d 175, 184, 560 N.E.2d 315 (1990). This rule should not be interpreted as an exception to the general rule against mentioning settlement agreements. It is a rule that governs play in all trials, and, given the ingenuity often evident in settlement agreements, it should not be abandoned lightly.

The potential for bias in this case was forecast by the trial court’s hypothetical question, later asked. Disingenuity is in the air when we conclude that there is no potential for bias when a doctor and a nurse are freed of personal liability in exchange for a settlement made by their hospital employer. And though the majority notes that their testimony was of no great help to the plaintiff, it should also be noted that they both testified that they had no independent recollection of the incidents leading to the plaintiff’s injuries, though they were both present and attended the plaintiff at the hospital. As the trial court stated: "Whether or not they are actually biased is a question of fact for the jury.”

One final point. The majority’s discussion of the defense closing argument — as an example of the bias that can overwhelm a plaintiff when a settlement is revealed — omits a crucial part of the record. The first mention of the settlement in closing argument was made, not by the defense, but by the plaintiff’s attorney, who also dwelled on the culpability of the dismissed defendants he had called as witnesses. It is well settled that a party in whose favor an in limine order is entered cannot violate the order and then argue prejudice if his opponent follows suit. See People v. Miller, 101 Ill. App. 3d 1029, 428 N.E.2d 1038 (1981). I would affirm.