Standard of Review

January 3, 2007

First District Appellate Defines Abuse Of Discretion And Says Plaintiff Should Have Been Allowed To Cross Expert On Personal Practices

So what is an abuse of discretion? The definition bears repeating:

A trial court abuses its discretion only if it “act[s] arbitrarily without the employment of conscientious judgment, exceed[s] the bounds of reason and ignore[s] recognized principles of law … or if no reasonable person would take the position adopted by the court.”

In a medical malpractice case, plaintiff wanted to cross-examine the defense expert on his personal practices. The appellate court ruled that it was error for the trial court to preclude that cross-examination. The opinion did not state it was an abuse of discretion, but that’s the upshot. Take a look at Schmitz v. Binette, No. 1-05-2710 (10/13/06).

December 20, 2006

Illinois Second District Appellate Court: (1) No Objection, No Matter, No Waiver. (2) Appellate Court Not Restricted By Record In Frye Assessment. (3) Standard Of Review Manifest Weight In Release of Sexually Violent Person.

by Steven R. Merican

A sex offender, who was committed as a sexually violent person, petitioned for release. Three rulings bear upon appellate practice:

• Whether expert testimony that relied on a penile plethysmograph (“PPG”) was admissible under the Frye standard did not require an objection at trial; the motion in limine to exclude was sufficient. So the absence of an objection at trial did not result in waiver of appellate review. The court suggests that a motion in limine alone is sufficient to preserve appellate review when the issue is whether expert evidence meets the Frye standard.

• In conducting a Frye analysis “a court of review is not bound by the record developed during trial and may consider “sources outside the record, including legal and scientific articles, as well as court opinions from other jurisdictions.”

December 19, 2006

De Novo Review For Illinois Claim That Punitive Damages Are Unconstitutional

by Steven R. Merican

Eighteen years of litigation culminated in a dispute over punitive damages in the Illinois Supreme Court. An excavating company was picketed by the union. The excavating company claimed the picketers spread false information about the company. So the company sued for libel, tortious interference with contract, and the like. At a bench trial, the company won a modest compensatory award, but rang the bell on punitives.

At a bench trial, the company won $4,680 in compensatory damages and $525,000 in punitive damages. The appellate court lowered the punitives to $325,000.

In the Supreme Court, the question was the propriety of the punitive damage award. The first question was the proper standard of review. The company argued for abuse of discretion; the union argued for de novo review.