Illinois Supreme Court Justice Elizabeth Rochford
SPRINGFIELD - A unanimous Illinois Supreme Court opinion denied a new medical malpractice trial, which had been sought in part on the grounds a juror hesitated and sighed before assenting to the verdict.
The underlying legal dispute pits Robert Schilling against Dr. Kreg Love and his employer, Quincy Medical Group. Schilling’s two-count malpractice claim alleged Love repeatedly diagnosed cellulitis in January 2017, but, after Love referred Schilling to a podiatrist, X-rays revealed one complete dislocated fracture and other minimally displaced fractures. Schilling had surgeries in March and October. He ultimately had the left leg amputated below his knee.
On Nov. 1, 2023, after six days of testimony, an Adams County jury began deliberating, but in fewer than five hours indicated a belief unanimous agreement was impossible. Not 40 minutes after deliberations began the next morning, one juror sent a note to the judge asserting the juror firmly supported Schilling, but desired to sign the verdict for Love “to end this deliberation and put an end to this.”
Although Schilling’s attorneys argued the jury was deadlocked and moved for a mistrial, defense lawyers said the proper next step, if the jury was indeed deadlocked, was supplemental instructions. The judge brought jurors back into the courtroom where the foreman said it was his “understanding” they were deadlocked. Following the supplemental instructions, deliberations resumed. Schilling’s lawyers again moved for a mistrial, arguing the extra instructions should’ve been given the night before.
After an hour of deliberations, the jury announced it had reached a verdict. The judge agreed to poll the jurors individually, but only after the verdict was announced. All jurors answered yes to the question: “Was this then and is this now your verdict?” The judge then discharged them.
But Schilling’s lawyers again moved for a mistrial, noting one juror “hesitated and gave a loud sigh” before answering yes, according to court records, suggesting that might be the juror who wrote the note at the outset.
An Illinois Second District Appellate Court panel affirmed the ruling, finding the county judge didn’t abuse discretion in denying the mistrial motions. That prompted Schilling’s appeal to the Illinois Supreme Court.
Justice Elizabeth Rochford wrote the opinion, filed Jan. 23.
On appeal, Schilling didn’t address the jury instruction rulings but said the initial note — which the parties and Rochford referred to as the “Surrender Note” — should’ve been grounds for a mistrial and also argued he was wrongly denied a request for additional polling of the jury.
Schilling’s argument, Rochford wrote, “suggests that there is only one reasonable interpretation of the Surrender Note. As the appellate court found, however, there is another.” She quoted the appellate panel’s theory that whichever juror wrote the note “simply wanted to get the court’s attention about the perceived deadlock, especially considering the court did not provide any guidance when the jury first declared itself deadlocked the previous night. Significantly, after approximately six hours of deliberations, the jury did not return a verdict contemporaneously with the Surrender Note, but instead awaited a response from the court. This strongly suggests that the Surrender Note was a plea for guidance rather than confirmation that the author had truly and permanently abandoned his or her duties and convictions.”
The court said it was within the Adams County judge’s discretion to determine additional instructions could change the opinion of the juror who wrote the note. Unlike other instances where jurors are found to be intentionally disruptive, “none of the jurors in this case complained that a juror refused to deliberate or was otherwise disruptive during deliberations, nor did the other jurors single out or identify the author of the Surrender Note,” Rochford wrote. “In fact, the record does not indicate whether the other jurors were even aware that a juror had sent the Surrender Note.”
Rochford further explained judges have “great latitude” in determining how long to allow deliberations before declaring a mistrial and said those judges are “in the best position to assess all the factors that must be considered in determining whether a potentially deadlocked jury will be able to reach a just verdict if it continues to deliberate.”
Schilling also said the additional instructions coercively pushed the jurors to reach a verdict, but Rochford noted the appellate court already considered that point, and that panel observed the Supreme Court “adopted the instruction specifically to avoid the possibility of undue coercion.” She further said the facts of Schilling’s case reinforce the original reasoning.
“When the jury first notified the trial court that it was deadlocked, the trial court provided no guidance and simply directed the jurors to continue deliberating,” Rochford wrote. “The conceivably coercive effect of the trial court’s silence is seen in the Surrender Note, where the author stated that he or she would vote with the majority solely to end deliberations.”
But after the instructions, a verdict came within 50 minutes and during polling each juror affirmed their support of the verdict. The Supreme Court acknowledged trial judges are to determine intent “if a juror indicates some hesitancy or ambivalence in his polling answer,” but judges also must ensure polling isn’t just another round of deliberations. The judge’s determination should only be negated if the “conclusion is clearly unreasonable,” Rochford wrote, and the court didn’t find basis for that determination in the record.
“The author of the Surrender Note had the opportunity to disclose any coercion, mistake or dissent from the verdict during the polling,” Rochford wrote. “The jurors, however, all answered ‘yes’ when asked whether the verdict was their verdict. Consequently, there was no reason for the trial court to conduct further questioning.”
Regarding the hesitation and sigh, Rochford concluded, overturning a verdict is only proper when a juror expresses dissent or provides an ambiguous response during polling. The court agreed that wasn’t the case with the juror in question, explaining the entire jury had the opportunity to express disagreement.
