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Gallina v. Watson12/20/2004
bit No. 9, Dr. Blair's written opinion disclosures, into the jury room during its deliberations.
According to section 2-1107(d) of the Code of Civil Procedure (Code), " apers read or received in evidence, other than depositions, may be taken by the jury to the jury room for use during the jury's deliberations." 735 ILCS 5/2-1107(d) (West 2002). "The decision whether to send exhibits to the jury room is within the trial court's sound discretion, and a reviewing court will not disturb that decision absent an abuse of discretion that prejudices a party." Van Winkle v. Owens-Corning Fiberglas Corp., 291 Ill. App. 3d 165, 176, 683 N.E.2d 985, 993 (1997).
We find the trial court abused its discretion in not allowing plaintiff's exhibit No. 9 to go to the jury room. None of the parties in their respective briefs identified the location in the record of the parties' arguments on whether plaintiff's exhibit No. 9 should go to the jury room. Memorial states in its brief the court did not allow the exhibit to go to the jury room because it would place more emphasis on that exhibit than the other pieces of evidence. Memorial also states in its brief the exhibit contained many irrelevant opinions.
We agree trial courts have a wide range of discretion in deciding what will be sent to the jury room. However, based on the facts in this case, we find the court abused its discretion in not allowing plaintiff's exhibit No. 9 to go to the jury room. This exhibit would have been of assistance to the jury in assessing Dr. Blair's testimony. We disagree with Memorial when it argues sending plaintiff's exhibit No. 9 to the jury would have overemphasized that piece of evidence; the court sent all of the other exhibits to the jury room. By not sending plaintiff's exhibit No. 9 to the jury room, the court diminished this piece of evidence.
C. Ostensible Agency
Memorial argues if we remand this case to the trial court, we must decide whether Dr. Watson was an ostensible agent of Memorial. Ostensible or apparent agency is the basis for count III of Gallina's second-amended complaint. From the record, it does not appear Memorial ever filed a motion for summary judgment on count III of Gallina's second-amended complaint. As a result, the trial court never had an opportunity to rule on this issue. We will not rule on this issue until the trial court has had an opportunity to do so. Memorial is free to raise this issue with the court on remand.
III. CONCLUSION
For the reasons stated, we reverse and remand this case to the trial court.
Reversed and remanded.
COOK, P.J., and MYERSCOUGH, J., concur.
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