Judge William J. Haddad (Ret.)
The “empty chair” defense of sole proximate cause need not be pled, and its disclosure may not be readily identified until it is too late to defeat. Litigants should treat it pro-actively throughout the proceedings.
I. Hornbook View of Proximate Cause
“The fatal trespass done by Eve was the cause of all our woe”
The Law of Torts, Wm. Prosser, 3d Ed., 1964, p. 240
Professor Prosser dramatically demonstrated the relationship between causation and injury by recounting early attempts to reign in the scope of “causation in fact” with concepts of legal causation such as sine qua non (“but for”), “substantial factor”, or even sole or dominant causation. The evolution of modern causation, it is said, found ground with Lord Chancellor Bacon’s rule of causation—
“In jure non remota causa, sed proxima, spectator”
[“In law the near cause is looked to, not the remote one”]
Bacon, Maxims of the Law, Reg. I at Id., 242-3, 282; emphasis added).
The emergent concept of proxima was augmented and modified with various standards, such as “natural and probable” consequences, reasonable likelihood, and foreseeability, all eventually proclaimed in Justice Cardozo’s landmark case of Palsgraf v. Long Island R. Co., 248 N.Y. 330, 162 N.E. 99 (1928). Cf. Cunis v. Brennan, 56 Ill. 2d 372, quoting 2 Law of Torts (1956), sec. 16.09 at 929. In the context of proximate or legal cause, “reasonableness” means: “Not what actually happened, but what the reasonably prudent person would then have foresee has likely to happen…”
II. Illinois Pattern Jury Instructions on causation
The Illinois Pattern Jury Instruction on proximate cause found in IPI 15.01 was updated in September, 2009 by the Illinois Supreme Court Committee on Pattern Jury Instructions.
When I use the expression “proximate cause,” I mean a cause that, in the natural or ordinary course of events, produced the plaintiff’s injury. [It need not be the only cause, nor the last or nearest cause. It is sufficient if it combines with another cause resulting in the injury.]
IPI Civil 3d No. 12.04 (updated Sept., 2009)
Some of the pertinent bracketed language in IPI 15.01—“need not be the only cause… sufficient if it combines with another cause”—relates to the variety of concurrent causes which are seen in the second paragraph of the long form versions of IPI 12.04 and 12.05:
IPI 12.04 Concurrent Negligence Other Than Defendant’s
More than one person may be to blame for causing an injury. If you decide that a [the] defendant[s] was [were] negligent and that his [their] negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.
[However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant.]
IPI 12.05 Negligence—Intervention of Outside Agency
If you decide that a [the] defendant[s] was [were] negligent and that his [their] negligence was a proximate cause of injury to the plaintiff, it is not a defense that something else may also have been a cause of the injury.
[However, if you decide that the sole proximate cause of injury to the plaintiff was something other than the conduct of the defendant, then your verdict should be for the defendant.]
Paragraph two of the long form versions of IPI 12.04 and IPI 12.05 constitutes the foundational instruction on “sole proximate cause” in medical malpractice matters in Illinois.
III. Aspects of the Sole Proximate Cause “Defense”
Under paragraph two of IPI 12.04 and 12.05, if another “person,” or “condition,” or “causative factor” constitute the sole proximate cause of injury to the plaintiff, then the jury is instructed that its “verdict should be for the defendant.” In medical malpractice matters, this “other person” or “causative factor” might be another doctor, another nurse, the hospital staff, EMT, ambulance services, communication system failures, or charting errors. A causative “condition” bearing upon sole proximate cause could simply be the patient’s own past, current, and subsequent physical condition (e.g. hypertension, high risk pregnancy) which may have caused the injury notwithstanding the negligent conduct of the defendant on trial.
1. The sole proximate cause defense is known as the “empty chair defense”
Plaintiffs oppose the concept of the “empty chair” defense, also known as and hereafter referred to as the sole proximate cause defense. Leonardi v. Loyola Univ., 168 Ill.2d 83, 93 (1995).
In Leonardi, the decedent experienced massive hemorrhaging due to the abnormal position of the placenta and other complications during childbirth, which was believed to lead to the formation of an embolism. The embolism purportedly caused irreparable brain damage and the ensuing death after a prolonged convalescence. The attending surgeon settled before trial but his causative conduct became the subject of motions, rulings and instructions on the issue of sole proximate cause. In her appeal, the plaintiff essentially argued that the trial court erred in allowing the “empty chair” defense through evidence of the nonparty surgeon’s causative conduct. The plaintiff also argued that the court erred in providing jury instructions on sole proximate cause under IPI 12.04. Leonardi v. Loyola Univ., 168 Ill.2d 83, 93 (1995).
2. The defendant is not required to plead sole proximate cause as an affirmative defense
In any negligence action, the plaintiff bears the burden of proving not only duty and breach of duty, but also that defendant proximately caused plaintiff’s injury…. The element of proximate cause is an element of the plaintiff’s case. Leonardi v. Loyola Univ., 168 Ill.2d 83, 94 (1995), see also Rest. (2nd) of Torts § 433B
3. A general denial of causation is sufficient to preserve defense of sole proximate cause.[A]n answer which denies that an injury was the result of or caused by the defendant’s conduct is sufficient to permit the defendant in support of his position to present evidence that the injury was the result of another cause.
Leonardi v. Loyola Univ., 168 Ill.2d 83, 94 (1995)
4. The defendant has the “burden of production” to “go forward” with evidence of another cause, even though the burden never “shifts” on causation. The defendant is not required to plead lack of proximate cause as an affirmative defense… Obviously, if there is evidence that negates causation, a defendant should show it. However, in granting the defendant the privilege of going forward, also called the burden of production, the law in no way shifts to the defendant the burden of proof.
Leonardi v. Loyola Univ., 168 Ill.2d 83, 94 (1995)
A defendant has the right not only to rebut evidence tending to show that defendant’s acts are negligent and the proximate cause of claimed injuries, but also has the right to endeavor to establish by competent evidence that the conduct of a third person, or some other causative factor, is the sole proximate cause of plaintiff’s injuries. Further, if the evidence is sufficient, the defendant is entitled to an instruction on this theory. Leonardi v. Loyola Univ., 168 Ill.2d 83, 101 (1995)
5. “Some competent evidence” is sufficient to constitute a basis for the defense of sole proximate cause. Some competent evidence is that which “tend[s] to show that the sole proximate cause of the occurrence was the conduct of a third person” (Usage notes following IPI Civil 3d No. 12.04) In McDonnell v. McPartlin, 192 Ill.2d 505, the court stated the following:
Accordingly, where there is some competent evidence that the sole proximate cause of a plaintiff’s claimed injury lies in the conduct of someone other than the defendant, the defendant is entitled to have the jury instructed pursuant to the second paragraph of IPI Civil 3d No. 12.04….
McDonnell, 192 Ill.2d at 522.[W]e hold that, in the context of a medical negligence case, the sole proximate cause instruction requires only that the defendant present some evidence that the nondefendant is the sole proximate cause of the plaintiff’s injury.
McDonnell, at 516 (emphasis added). See also Leonardi v. Loyola Univ., 168 Ill.2d 83, 102 (1995) quoting Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 118, 79 Ill. Dec. 238, 463 N.E.2d 792.
“Competent evidence” is usually satisfied through a medical expert who can relate the cause to the injury. See Kunz v. Little Company of Mary Hospital and Health Care Centers, 373 Ill. App. 3d 615, (1st Dist. 2007). However, in some cases expert testimony may not be required. See e.g., Sullivan v. Edward Hosp., 335 Ill. App. 3d 265 (2d Dist. 2002) (where the patient failure to follow nurse’s instructions was sufficient evidence of causation in fact).
In the presence of some evidence concerning Burns’ own failure to follow the instructions of nurse Lewis and the failure of the nurses to properly administer medication on an as-needed basis, the long-form version of IPI Civil (2000) No. 12.05 fairly, fully, and comprehensively informed the jury as to the relevant principles on the issue of sole proximate cause.
Sullivan, 335 Ill. App. 3d at 274.(See also Thornton discussed below.)
In Holton v. Mem’l Hosp., 176 Ill.2d 95, 135 (1997), the court held that the long form IPI 12.04 is not automatic just because “there is evidence that there may have been more than one, or concurrent, causes of an injury or where more than one person may have been negligent.” In Holton, the defendant failed to show at trial that persons other than the defendant staff caused harm, but took the tactic of arguing that there was no negligence at all in the diagnosis and treatment of the patient. “Because neither plaintiffs nor defendant asserted at trial that the treating physicians themselves were negligent, we conclude that the trial court did not err in denying defendant’s request for a sole proximate cause instruction based on the negligence of third parties.” See also, Gariti v. Karlin, 127 Ill. App. 2d 166 (1970), where the court held that there was no evidentiary basis for an expert to say that the accident was caused by a motorist’s diabetic attack absent evidence of diabetes before the accident. See also Reed v. Jackson, 325 Ill. App. 3d 835 (2001) and Wilson v. Bell, 214 Ill App. 3d 868 (1991).
6. With the sole proximate cause defense, causative conduct is relevant, but negligent conduct is not relevant.
While paragraph one of IPI 12.04 refers to another’s “blame” or negligence, paragraph two does not. Rather, paragraph two concerns sole proximate cause which “contains no implicit requirement that the jury consider whether the third person’s conduct was negligent.” McDonnell v. McPartlin, 192 Ill. 2d 505, 518 (2000).
Based on the plain language of IPI Civil 3d No. 12.04 and consistent with the instructional definition of proximate cause, we conclude that the sole proximate cause instruction does not require that a defendant demonstrate that the third person’s conduct was negligent, in addition to being the sole proximate cause of plaintiff’s claimed injury.
McDonnell, 192 Ill. 2d at 519.
7. Referring to the “empty chair” as “negligent” or blameworthy is irrelevant and prejudicial.
Again, IPI 12.04 states that “it is not a defense that some third person who is not a party to the suit may also have been to blame.” The law does not encourage nor require the defendant to actually “prove” that another party’s conduct was negligent. Rather, it requires “some competent evidence, that the other party’s conduct was the cause of injury (emphasis on conduct, not blame).
Moreover, inferring that another party has settled or was dismissed is highly prejudicial to juries who, it is said, fault the plaintiff for being “overly litigious,” or that the plaintiff has already been compensated, or that another party has been found to be accountable for the injury. See Krklus v. Stanley, 359 Ill. App. 3d 471 (1st Dist. 2005); Nika v. Danz, 199 Ill. App. 3d 296, 556 N.E.2d 873, 885 (4th Dist. 1990) In Hill v. Hiles, 309 Ill. App. 321, 330-331 (4th Dist 1941) the court termed such evidence as “inherently harmful.’
8. Experts may be required to explain the relationship between the causative factor and the injury with sole proximate cause. Although not required to establish negligence, experts may be required to explain the causal relationship between the causative conduct and the injury in order to establish sole proximate cause. See McDonnell v. McPartlin, 192 Ill. 2d 505 (2000) and Kunz v. Little Company of Mary Hospital and Health Care Centers, 373 Ill. App. 3d 615, (1st Dist. 2007). The courts are hesitant to question the admissibility of the defense of sole proximate cause where an expert supports it.
Illinois courts have stated that, while it is true that an expert witness may not base his opinion on conjecture or speculation (Murphy v. General Motors Corp., 285 Ill. App. 3d 278, 282, 672 N.E.2d 371, 373, 219 Ill. Dec. 863 (1996)), a physician is allowed to testify as to possible causes of an injury based on facts assumed to be true, despite objection that his testimony is inconclusive or speculative. Beloit Foundry v. Industrial Comm., 62 Ill. 2d 535, 539, 343 N.E.2d 504 (1976); Geers v. Brichta, 248 Ill. App. 3d 398, 407, 618 N.E.2d 531, 538, 187 Ill. Dec. 940 (1993).
Conners v. Poticha, 293 Ill. App. 3d 944, 950-951 (1st Dist. 1997) But see, Gariti v. Karlin, 127 Ill. App. 2d 166 (1970), (where the court held that defense causation evidence was too speculative where defense expert said the motorist suffered from a diabetic attack where there was no evidence that the defendant was diabetic before the accident).
9. Sole proximate cause may be based upon a pre-existing medical condition
Medical conditions have been found to be causative factors that constitute sole proximate cause under IPI 12.05. That instruction provides that “it is not a defense that something else may also have been a cause of the injury.” However, the instruction further provides: “If you find that the sole proximate cause of injury to the plaintiff was something other than the conduct of the defendant, then your verdict should be for the defendant.”
In Krklus v. Stanley, 359 Ill. App. 3d 471 (1st Dist. 2005), the court held it proper to give the long form IPI 12.05 instruction where the defense expert testified that, even if the defendant had made a diagnosis of an aortic dissection earlier, it would not have prevented the death of decedent which was caused by the patient’s “uncontrolled high blood pressure”. Krklus, 359 Ill. App. at 494. In Nassar v. County of Cook, 333 Ill. App. 3d 289 (1st Dist. 2002), it was decided that the long form IPI 12.05 was proper where the defense expert placed sole causation upon the mother’s quadruplet pregnancy.
In a related argument, plaintiffs contend that defendant’s closing argument identifying the quadruplet pregnancy itself as the sole proximate cause of the minor plaintiffs’ injuries was improper. In closing argument a party may discuss any competent evidence that was introduced, as well as, all reasonable inferences that may be drawn from it. McDonnell, 192 Ill. 2d at 524. Based on the evidence discussed above, a reasonable inference could be drawn that the quadruplet pregnancy was the sole proximate cause of the minor plaintiffs’ injuries. Therefore, defendant was entitled to make this argument to the jury. Nassar v. County of Cook, 333 Ill. App. 3d 289, 297-298 (1st Dist. 2002)
10. Sole proximate cause may be based upon “unknown” or multiple conditions.
This is sometimes described with fancy medical terminology such as a “differential diagnoses” or “unknown etiology” or “idiopathic causes” or “multifactorial causes.” A defense expert can rely upon such causative factors of a disease where it is based upon a reasonable degree of medical certainty and there may be “possible causes of a disease which are not speculative or without factual basis.” See Matuszak v. Cerniak, 346 Ill. App. 3d 766 (3d Dist. 2004).
In Conners v. Poticha, 293 Ill. App. 3d 944, 950-951 (1st Dist. 1997), the court said:
Furthermore, we note that it was sufficient for defendant simply to disprove plaintiff’s theory of infected sutures as the cause of infection and that defendant had no burden whatsoever to prove which source among countless possibilities actually caused plaintiff’s infection to recur….
Moreover, defendant’s testimony at trial was not speculative. Although defendant admitted to not knowing the precise cause of plaintiff’s infection, he was certain of its external nature and many of its possible sources.
Conners v. Poticha, 293 Ill. App. 3d 944, 950-951 (1st Dist. 1997) But see, Clayton v. County of Cook, 346 Ill. App. 3d 367, 388 (1st Dist. 2004) (where the court would not permit evidence of “multifactorial causes of death, including pneumonia, ARDS, emphysema and bronchospasm,” rather than a singularly sole proximate cause of death).
In Matuszak v. Cerniak, 346 Ill. App. 3d 766 (Ill. App. Ct. 3d Dist. 2004), the court held that a defendant’s medical expert could provide a differential diagnosis of other possibilities and probabilities that are supported by some evidence—so long as it does not rise the speculation without a factual basis. In Matuszak, the plaintiff suffered brain damage after a colonoscopy using a drug called Versed which plaintiff’s medical experts said reduced the oxygen level or oxygenation below 90% and damaged the brain—causing him to have dementia, paranoia and lethargy. The defendant’s expert stated that there may have been other causes, based upon prior medical factual history of documented head trauma many years ago in an auto accident—immunological disorder, rheumatoid arthritis, or Alzheimer’s disease. These were said to be all “possibilities,” but based upon a factual basis of documented history. Therefore, the final diagnosis of the defendant’s medical expert was that the injury “caused by an unknown etiology” was properly allowed, regardless that the expert could not “rule out categorically all other possible causes for an injury” so long as the alternative causes were supported by a factual basis.
Selected cases on sole proximate cause
1. Nolan v. Weil-McLain, 233 Ill. 2d 416 (2009)
Asbestos – “other exposures”
Although Nolan is not a medical malpractice case, it exemplified the supreme court’s desire to show consistency of its view of the sole proximate cause defense. Nolan overruled, distinguished, and explained a string of asbestos cases, including Lipke v. Celotex, 153 Ill. App. 3d 498 (1st Dist 1987) Kochan v. Owens-Corning Fiberglass Corp., 242 Ill. App. 3d 781, 788 (5th Dist. 1993), and Spain v. Owens Corning, 304 Ill. App. 3d 356 (4th Dist 1999). These cases essentially carved out an exception to the Leonardi decision in asbestos cases, holding that in asbestos exposure cases, evidence of “other exposures” was irrelevant where there is competent and substantial evidence of frequent, regular and proximate exposure to the defendant’s product. The Nolan court cleared up what it deemed a misinterpretation of its previous holding in Thacker v. UNR, 151 Ill. 2d 343 (1992), which held that exposure to the defendant’s asbestos product in sufficiently close quarters with “frequency, regularity, and proximity” created a legal presumption of proximate cause to defeat a directed verdict. However, the Nolan court held that the Thacker test was improperly transformed into “the Lipke exclusionary rule” (Nolan, 233 Ill. 2d at 437) by preventing the defense of sole proximate cause through competent evidence of “other exposures” to asbestos.
We concluded that under the facts in Thacker, the plaintiff had satisfied the frequency, regularity and proximity test to withstand a directed verdict and allow the issue of legal causation to be submitted to the jury…. Thacker, 151 Ill.2d at 366.
In subsequently interpreting our decision in Thacker, however, our appellate court has erroneously concluded that Thacker stands for the proposition that once a plaintiff meets the frequency, regularity and proximity test, he or she thereby establishes legal causation. This error is evident in the opinion of the appellate panel below, which held that “[o]nce a plaintiff satisfies the Thacker test, a defendant is presumed to be a proximate cause of a decedent’s asbestos injury.” 365 Ill. App. 3d at 968, citing Thacker, 151 Ill.2d at 360. This court in Thacker created no such presumption.
(Nolan, 233 Ill. 2d at 433-434)
While asbestos cases still enjoy special policy considerations as to legal causation under Thacker, the court wished to clarify its ruling as to sole proximate cause enunciated in Leonardi v. Loyola University, 168 Ill. 2nd 83 (1995).
Accordingly, we expressly rejected the plaintiffs’ argument–which was previously adopted by the appellate court in Kochan–that evidence of other possible causes for the claimed injury would confuse a jury or “distract  [its] attention from the simple issue of whether a named defendant caused, wholly or partly, a plaintiff’s injury.” Leonardi, 168 Ill. 2d at 94.
To the contrary, we held that the “sole proximate cause defense merely focuses the attention of a properly instructed jury *** on the plaintiff’s duty to prove that the defendant’s conduct was a proximate cause of plaintiff’s injury.” Leonardi, 168 Ill. 2d at 94. We therefore overruled any “[d]ecisions that contain statements to the contrary.”
Nolan, 233 Ill. 2d at 442.
2. Thornton v. Gardini, 237 Ill. 2d 100 (Ill. 2009)
Expert not Required
In Thorton, the court held that an expert was not required where the mother sued
for negligent infliction of emotional distress caused by the doctor’s delay and prevention of adequate medical care in the delivery of an infant.
3. Tabe v. Ausman, 388 Ill. App. 3d 398 (1st Dist. 2009)
In Tabe the court relied upon McDonnell and Leonardi in deciding that there was sufficient basis to give the long form IPI 12.04 instruction in a medical malpractice case where there was evidence that another party, a neuroradiologist, failed to properly read an MRI after complaints of numbness to the back after a lamenectimy. Tabe, 388 Ill. App. 3d at 407.
4. Bosco v. Janowitz, 388 Ill. App. 3d 450, 466 (1st Dist. 2009)
In Bosco, the court approved the long form 12.04 instruction in a case where the decedent died of colon cancer after a long history of gastrointestinal illnesses. The plaintiff’s claimed that the defendant’s failure to order a colon cancer detection plan was the cause of death. Defendant rebutted through experts who claimed that that the sole proximate cause of death was “caused [by the] the metastic spread of the cancer and that the failure of Dr. Aki to remove the entire colon soon after [decedent’s] partial colectomy increased the risk that cancer would recur.” Bosco, 388 Ill. App. 3d at 466.
5. Ready v. United/Goedecke Servs., 232 Ill. 2d 369 (2009 and on remand in Ready v. United/Goedecke Servs, 911 N.E.2d 1140 (1st Dist. 2009)
Employer & General Contractor
In Ready, the decedent died when scaffolding fell and struck him at a construction site. Two issues arose: First, was it improper to exclude the names of good faith settling defendants on the jury form? The Supreme Court held that it was not improper and remanded the matter to the appellate court to decide the second issue. The second issue was whether it was improper to exclude evidence that the conduct of the settling defendants, the employer and a general contractor, was the sole proximate cause of injury. On remand the appellate court held that it was error for the trial court to bar such evidence. However, this decision was also appealed for a second time to the Supreme Court which agreed that the trial court had erred in barring such evidence, but that it was “harmless error”. See also 13 DePaul J. Health Care L. 387.
6. Yoder v. Ferguson, 381 Ill. App. 3d 353, 370-371 (Ill. App. Ct. 1st Dist. 2008)
In Yoder, the defendant claimed that the accident was not caused by its conduct in a multi-car collision, but rather it was caused by severe weather conditions during an intense storm or the negligent conduct of other drivers who had previously settled. Although the court permitted a special interrogatory on sole proximate cause as to the settling defendant on causation, it refused to give the long form instructions under IPI 12.04 and 12.05. Also, the defendant’s request to include the settling defendant’s names on the verdict form was denied under Ready. Yoder, 381 Ill. App. 3d at 370-1.
7. Cetera v. DiFilippo, 404 Ill. App. 3d 20 (Ill. App. Ct. 1st Dist. 2010)
Non-party nursing staff
In Cetera the plaintiff claimed that the defendant-doctor failed to prescribe correct antibiotics which proximately caused an infection which spread outside the abdomen. The defendant countered that the sole proximate cause of the injury was the failure of the hospital’s nursing staff (who were not a parties to the suit) to administer the proper antibiotics. The court held that the long form IPI 12.04 instruction on sole proximate cause was justified. Cetera at 44-45
8. New v. Pace Suburban Bus Serv., 398 Ill. App. 3d 371, 381,383 (Ill. App. Ct. 1st Dist. 2010)
Sudden stop – “phantom” vehicle
The plaintiff was a passenger on a bus which “heavily” braked and made a sudden, hard stop, allegedly caused her to fall into a pole and then to the ground. Plaintiff claimed that the sudden stop was due to the bus driver’s negligence. The defendant introduced evidence that showed that at the time of the accident the roads were not in poor condition, the bus was traveling at a reasonable rate of speed, and the sudden braking occurred when a vehicle unexpectedly cut in front of the bus and then stopped suddenly to make a turn. The jury returned a verdict for the bus company.
The “phantom car defense” and sole proximate cause create causative facts that must be weighed by the jury’s ability to assess the credibility of the defendant who presents evidence of another causative factor.
9. Graves v. Wornson, 56 Ill. App. 3d 873, 879-80 (Ill. App. Ct. 3d Dist. 1978)
No basis for claim of sole proximate cause.
In Graves the trial court held that there was not competent evidence to support the defendant’s claim that he lost control of his truck when he was forced to suddenly slow his vehicle on a slippery roadway to avoid head on collision with vehicle passing other oncoming traffic. The uncontroverted evidence from eyewitnesses was that the oncoming passing vehicle had completed its maneuver before the defendant lost control of his truck.
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V. PRACTICE POINTERS ON SOLE PROXIMATE CAUSE – “The Empty Chair Defense”
1. Don’t Overlook the “Defense” at the initial stages of litigation
The sole proximate cause defense is no defense at all, meaning there is no formal duty to plead it as an affirmative defense. Therefore, parties may overlook this somewhat “hidden defense” in the early stages of litigation. Defendants are advised to search for “other causative factors” in medical malpractice cases. Conversely, plaintiffs are advised to be ever vigilant to identify its manifestation in myriad forms, such as delays in treatment, treatment rendered by nonparty medical personnel and staff, pre-existing medical conditions such as a pre-existing pulmonary embolism, deep vein thrombosis, arthritic disease, hypertension, seizures and other factors that may be tied up with causation.
Early inquiries of consulting experts after review the entire medical record should include questions on potential use of the sole proximate cause defense. Reliance upon Rule 213 disclosures is useful, but the subject should also be artfully be broached in discovery depositions of defense experts. Plaintiffs should mindful of this defense when preparing witnesses for discovery deposition.
2. Educate the judge about the defense
If the sole proximate cause defense is anticipated at trial, litigants should be “pro-active”, but tactful, in educating the judge on what to expect. Often this takes the form of appropriate motions limine under Leonardi and McDonnell such as: (a) barring the use of the defense without a showing of “some competent evidence” (see Leonardi and McDonnell, supra), (b) barring any mention or reference that another party settled or was dismissed prior to trial, (c) barring any characterization of the another party as “negligent” or violating the standard of care, since the only issue is whether another’s conduct was the sole proximate cause, regardless if it was negligent conduct or not.
3. Educate the jury venire about the defense
Parties typically get a “promise” from prospective jurors that they will follow the law as instructed by the judge, particularly as to negligence, proximate cause, and damages. This lays the groundwork for the main argument against sole proximate cause defense, which is IPI 15.01 which defines proximate cause.
4. In opening statement be pro-active by making one of the themes “Causation”
From the outset in opening statement tell the jury outright that the evidence will show that the defendant’s negligent conduct was “a cause” of injury and tell them why or what
evidence infers proximate cause. This is not a “defensive posture”, but an offensive, pro-active assertion of what the evidence shows. Another, ancillary theme is to remind the jury of its duty to follow the law.
5. Educate the jury during trial.
Be sure witnesses are prepared to deal with direct and cross examination on causation issues. If the subject of “other causes” is opened during cross, then a redirect examination should be prepared that dramatizes the fact that, regardless of any suggestion there were other cases, this witness is clearly saying that the defendant’s acts or omissions were “a cause” of injury.
6. Exploit opportunities on cross of the opponent’s expert on causation
Some say that a retained expert seems to find causation everywhere but with the defendant who hired him. Litigants will attack the veracity of such testimony as being too convenient and conspicuous in favoring certain causes, while omitting others—particularly the defendant’s conduct. This can be dramatized on cross examination to remind the jury of the particularized testimony on causation.
7. In closing argument, go on the offensive.
a. Remind the jury of its promise to follow the law
b. Argue the facts of causation
c. Argument for the plaintiff may focus upon IPI 15.01 as it bears upon those facts emphasizing its application:
When I use the expression “proximate cause,” I mean a cause that, in the natural or ordinary course of events, produced the plaintiff’s injury. It need not be the only cause, nor the last or nearest cause. It is sufficient if it combines with another cause resulting in the injury.]
1) Use analogies of “a cause” to explain its meaning.
2) Argue “for” paragraph one of IPI 12.04.
“More than one person may be to blame for causing an injury. If you decide that the defendant was negligent and that his negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.
3). Argue “against” paragraph two of IPI 12.04
“However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant.”
4). In closing or in rebuttal, some litigants use a logical approach by what one might call “the mutually exclusive argument of causation”. If the jury finds that the defendant’s conduct was “a cause” of injury, then it follows that another’s conduct cannot be the sole and only cause. Otherwise, the argument goes, in order to find sole proximate cause, the jury must also find that the defendant’s conduct was not even one of the causes of harm.
d. Argument for the defendant may focus upon paragraph two of IPI 12.04 or 12.05 as it bears upon those facts emphasizing its application:
1. Pertinent instructions on Sole Proximate Cause:
“However, if you decide that the sole proximate cause of injury to the plaintiff was the conduct of some person other than the defendant, then your verdict should be for the defendant.” Para 2 of IPI 12.04
“However, if you decide that the sole proximate cause of injury to the plaintiff was something other than the conduct of the defendant, then your verdict should be for the defendant.” Para 2 of IPI 12.05
2. Special Interrogatories on Sole Proximate Cause:
A special interrogatory may be submitted consistent with the IPI 12.04 and 12.05 instructions in order to challenge a general verdict. See Santos v. Chicago Transit Authority, 198 Ill. App. 3d 866(Ill. App. Ct. 1st Dist. 1990); In accord, Slavin v. Saltzman, 268 Ill. App. 392 (Ill. App. Ct. 2d Dist. 1994); Krklus v. Stanley, 359 Ill. App. 3d 471(Ill. App. Ct. 1st Dist. 2005
“A ‘Special Interrogatory’” is supplied with these instructions. After you have reached a verdict, fill in and sign the Special Interrogatory and return it to the court along with the forms of verdict. The Special Interrogatory must be signed by each of you.”
3. Exemplars of Special Interrogatories:
Motor Vehicle Accident Case (re: IPI 12.04)
“Was there contributory negligence on the part of the plaintiff immediately before and at the time of the occurrence the sole proximate cause of his injuries?”
YES __________ NO ____________
“Was there contributory negligence on the part of Steven Smith before or at the time of the occurrence?”
YES __________ NO ____________
“If your answer to the preceding question is ‘Yes’, was that negligence the sole proximate cause of Steven Smith’s injuries on February 23, 2005?”
YES __________ NO ____________
Medical Malpractice (ref: IPI 12.05)
“Was the sole proximate cause of Jane Doe’s injury something other than the conduct of Dr. Joan Jones?
YES __________ NO ____________