Ann Maher Oct. 8, 2015, 1:50pm


A woman who was denied a new damages-only trial after a Madison County jury awarded her less than half of what she asked for in compensation of auto accident injuries, has lost her appeal at the Fifth District Appellate Court.

Janet Biggs, represented by Brian Wendler of Edwardsville, was awarded $33,850 for neck and back injuries which included $8,250 for four months in lost earnings, However, the jury rejected husband Michael Biggs's loss of consortium claims.

The couple sued Elisabeth R. Wyatt and Sheryl Scheibal in 2010 over a chain-reaction collision that happened as Janet Biggs was stopped at a stoplight on the Interstate 55/70 exit ramp to Highway 157 in Collinsville. The Biggses sought $50,000 from each defendant. 

Following trial that was presided over by Circuit Judge Dave Hylla, Wendler filed post trial motions asking for a new trial on the question of damages, as well as Michael Biggs's claim for loss of consortium. Hylla denied both; Wendler appealed saying Hylla abused his discretion on seven grounds, two of which had to do with jurors.

In a Rule 23 decision entered Oct. 6, the Fifth District completely agreed with Hylla.

Justice Melissa Chapman delivered the judgment of the court; Justices Judy Cates and Richard Goldenhersh concurred.

According to the record, Hylla dismissed a prospective juror whom he saw sleeping during the voir dire portion of trial, where attorneys from both sides interview potential jurors. Hylla noted that he had concerns for the man's safety and concerns over his ability to remain alert during the trial.

The individual was working night shifts at a grocery store at the time of trial.

Wendler argued that any problems caused by that potential juror's fatigue during trial were "too minor" to make the decision to discharge him for cause proper; and that any problems could have been cured because Hylla had the authority to order that potential juror's employer to allow him to take time off to serve on the jury.

"We find neither argument persuasive," Chapman wrote.

"We also note that the plaintiffs do not explain how the court's decision to dismiss (the juror) prejudiced them."

Wendler also argued that Hylla abused discretion in refusing to strike three jurors for cause over comments they made during voir dire.

Juror 3 stated that she did not believe that a plaintiff in an automobile accident case should be compensated for "anything over medical expenses and lost wages," according to the ruling. However, when she was asked if she would have difficulty applying the law if instructed that pain and suffering is an element of damages, she replied, "I'm not saying I would have a difficult time with following it, but I don't agree with it."

Juror 28 said, "I think common sense has kind of gone out the window. There's too many lawsuits on

things that are just common sense." He said, however, that this viewpoint would not impact his ability to be fair to the plaintiffs.

Juror 31 said that he thought attorneys had "a tendency to ask for more" in terms of damages.

"Even assuming these statements demonstrated a bias against the plaintiffs and/or their counsel, we would not find reversal on this basis to be warranted," Chapman wrote. "..[R]eversal is only required if a party can demonstrate that prejudice resulted from the court's decision."

Wendler further argued that Hylla abused discretion by submitting a verdict form that allowed jurors to find for the defendants and against Michael Biggs on his loss-of-consortium claim, and instructing jurors that if they decided that the defendants had no liability to him, they would not need to consider damages. Wendler argued that the instruction coupled with the verdict form allowed jurors to reach an inconsistent verdict.

The Fifth District decision indicates that on cross-examination, Michael Biggs acknowledged that Janet Biggs "still does some of the cleaning, although he does more of it than he used to do. He also acknowledged that Mrs. Biggs's mother, who lives with them, helps with the cooking and housework."

Chapman wrote that plaintiffs forfeited their jury form and instruction argument by agreeing to their submission.

"We further find that an award of zero damages is not against the manifest weight of the evidence," Chapman wrote.

The other points Wendler argued on appeal were that Hylla abused discretion by: excluding evidence that Janet Biggs had been awarded disability benefits by the Social Security Administration; admitting evidence of prior medical conditions; refusing to allow plaintiffs' counsel to cross-examine a defense expert witness regarding his bias; and allowing defense counsel to make improper, prejudicial remarks during closing arguments.

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