dissenting:
I respectfully dissent.
I cannot accept the majority’s conclusion that the admission of Dr. Hardin’s testimony was so prejudicial as to affect the outcome of the trial.
It is evident that there was some confusion as to what, exactly, Dr. Hardin was testifying. On direct examination he testified that, based upon his examination of the records, the consent Grant gave was informed. Plaintiff’s counsel objected, however, believing that Dr. Hardin was being asked whether or not preoperative oral consent had been given, i.e., whether Grant was being truthful when she said she had not given preoperative consent. The trial court attempted to clarify this for plaintiff’s counsel and admonished the jury, but on cross-examination plaintiff’s counsel asked Dr. Hardin what expertise he had to determine whether Grant or Dr. Petroff was telling the truth. When defendant’s counsel objected, the trial court again tried to clarify for plaintiff’s counsel exactly what Dr. Hardin did and did not testify to. Nevertheless, plaintiff’s counsel asked several questions which elicited from Dr. Hardin an opinion with respect to Grant’s veracity. At the conclusion of Dr. Hardin’s testimony, the trial court again admonished the jury that his testimony could only be considered on the issue of whether an oral consent met the standard of care, and to the extent that he gave an opinion on whether or not she gave consent, the jury was to disregard such testimony.
Reviewing the relevant portions of Dr. Hardin’s testimony, I believe that it was plaintiff’s counsel who misunderstood Dr. Hardin’s testimony, and in attempting to cross-examine Dr. Hardin on what he thought Dr. Hardin said, plaintiff’s counsel elicited from Dr. Hardin comments on Grant’s veracity. When a party introduces or elicits evidence, he cannot later complaint about its admission. Gillespie v. Chrysler Motors Corp., 135 Ill. 2d 363, 553 N.E.2d 291 (1990).
I also take issue with the majority’s position that the admonishments given to the jury by the trial court were insufficient to cure the prejudice. The trial court repeatedly admonished the jury that while Dr. Hardin could give an opinion as to whether preoperative oral consent met the standard of care, he could not give an opinion on whether such consent had in fact been obtained, and that any such opinion should be disregarded. The trial court’s admonishments could not have been more thorough or more clear. I find it inconceivable that the jury misunderstood or ignored them.
Finally, in view of the fact that both Dr. Petroff and nurse Mueller testified that Grant in fact gave preoperative oral consent, Dr. Hardin’s testimony was cumulative at best and hardly sufficient to sway the outcome of the trial. Furthermore, I note that Grant’s testimony is not part of the record on appeal.
I also disagree with the majority’s conclusion with respect to the trial court’s denial of Grant’s motion for leave to file a third amended complaint. The trial court’s ruling did not prevent Grant from introducing evidence on the allegation of infliction of emotional distress or battery; it merely prevented her from seeking punitive or exemplary damages based thereon. The jury was instructed with respect to both the infliction of emotional distress count and the battery count. The jury returned a general verdict for Dr. Petroff, and the return of a general verdict creates a presumption that all material issues upon which proof was offered were found in favor of the prevailing party. Boll v. Chicago Park District, 249 Ill. App. 3d 952, 620 N.E.2d 1082 (1991); Rendleman v. ABA Building Maintenance, Inc., 222 Ill. App. 3d 367, 583 N.E.2d 703 (1991). Because the jury found that no battery occurred, no prejudicial error could have arisen from the trial court’s denial of Grant’s request for leave to file the third amended complaint.
For the foregoing reasons, I dissent.