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. 364 Ill. App. 3d at 617. 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 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 2 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 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.” 364 Ill. App. 3d at 618. 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 [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 plaintiffs 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 at 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 themselves 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 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.