Human immunodeficiency virus (HIV) is a retrovirus that can lead to acquired immunodeficiency syndrome (AIDS), a condition in humans in which the immune system begins to fail, leading to life-threatening opportunistic infections. Previous names for the virus include human T-lymphotropic virus-III (HTLV-III), lymphadenopathy-associated virus (LAV), and AIDS-associated retrovirus (ARV).
Infection with HIV occurs by the transfer of blood, semen, vaginal fluid, pre-ejaculate, or breast milk. Within these bodily fluids, HIV is present as both free virus particles and virus within infected immune cells. The four major routes of transmission are unprotected sexual intercourse, contaminated needles, breast milk, and transmission from an infected mother to her baby at birth. Screening of blood products for HIV has largely eliminated transmission through blood transfusions or infected blood products in the developed world.
HIV infection in humans is now pandemic. As of January 2006, the Joint United Nations Programme on HIV/AIDS (UNAIDS) and the World Health Organization (WHO) estimate that AIDS has killed more than 25 million people since it was first recognized on December 1, 1981, making it one of the most destructive pandemics in recorded history. It is estimated that about 0.6% of the world’s population is infected with HIV. In 2005 alone, AIDS claimed an estimated 2.4-3.3 million lives, of which more than 570,000 were children. A third of these deaths are occurring in sub-Saharan Africa, retarding economic growth and increasing poverty. According to current estimates, HIV is set to infect 90 million people in Africa, resulting in a minimum estimate of 18 million orphans. Antiretroviral treatment reduces both the mortality and the morbidity of HIV infection, but routine access to antiretroviral medication is not available in all countries.
Illinois Appellate Court Reports
DOE v. DILLING, 1-04-2372 (Ill.App. 12-22-2006) JANE DOE,
Plaintiff-Appellee and Cross-Appellant, v. ELIZABETH
DILLING, Individually, and as Executor of the Estate of
Kirkpatrick Dilling, Deceased, Defendants-Appellants and
Cross-Appellees (Dilling and Dilling, Defendant). No.
1-04-2372. Appellate Court of Illinois, First District.
December 22, 2006.
Appeal from the Circuit Court of Cook County. No. 00 L
5079, Honorable Leonard L. Levin, Judge Presiding.
JUSTICE JOSEPH GORDON delivered the opinion of the court.
Plaintiff Jane Doe contracted HIV from her fianc?©, Albert
Dilling (Albert). Three weeks after Doe tested positive for
HIV, Albert died of AIDS. Doe sued Albert’s estate and his
elderly parents, Elizabeth (Betty) and Kirkpatrick (Kirk),
alleging that Albert, Betty and Kirk had misrepresented
Albert’s condition to her, which caused her to become
infected with HIV.[fn1] It was soon discovered that Albert’s
estate had no assets and a negative net worth, and Doe
dropped it as a defendant. In the course of pretrial
proceedings, Doe amended her complaint a number of times.
At the time of trial, there were two counts directed at
Betty and Kirk (collectively, the Dillings) which are at
issue in this appeal: count I, alleging negligent
misrepresentation against both Dillings, and count II,
alleging fraudulent misrepresentation against both
Dillings. Those counts were tried before a jury. At the end
of the trial, the judge entered a directed verdict in the
Dillings’ favor on the fraudulent misrepresentation count.
The negligent misrepresentation count ended in a mistrial
due to a hung jury, and the case was returned to a trial
call and assigned to a different judge. Before the second
trial commenced, Kirk died, and his estate was substituted
as a defendant. At the second trial, Doe’s theory of the
case was that because of the Dillings’ misrepresentations,
she was unaware that Albert had infected her with HIV and,
consequently, she failed to get treatment that would have
prevented much of the irreparable damage she sustained to
her immune system. At the close of evidence, the second
judge directed a verdict in defendants’ favor on the
negligent misrepresentation count, the count that had
originally ended in a mistrial, and submitted the
fraudulent misrepresentation count to the jury. The jury
found for Doe and awarded her $2 million in compensatory
damages. For the reasons that follow, we vacate the judgment
entered on the jury’s verdict finding defendants liable for
fraudulent misrepresentation and awarding Doe compensatory
damages. We affirm the remainder of the judgment.
BACKGROUND
In her latest (fifth amended) complaint, Doe alleged that
she met and began to date Albert in April of 1996. Doe
would later testify that she and Albert, who unbeknownst to
her was HIV-positive, began to have unprotected sex in
August of 1996. Doe alleged that between the spring of
1997, when she first met the Dillings, and November of 1999,
when she independently learned that Albert had AIDS, the
Dillings negligently (count I) or fraudulently (count II)
misrepresented to her Albert’s condition by telling her, on
many occasions, that Albert was suffering from heavy metal
poisoning and/or from Lyme disease. Doe further alleged
that she reasonably relied, to her detriment, on the
Dillings’ representations. Doe asserted that had she
learned in the spring of 1997 the true nature of Albert’s
ailment, she would have immediately obtained HIV testing
for herself and, if she was then already infected, would
have immediately commenced treatment.
Both parties state in their briefs that at the end of the
first trial, in April of 2003, Judge Devlin entered a
directed verdict in the Dillings’ favor on the fraudulent
misrepresentation count. However, as defendants
acknowledge, the record on appeal does not include an order
to that effect. Neither party asserts that a finding was
ever made, pursuant to Supreme Court Rule 304(a) (155 Ill.
2d R. 304(a) (2002)), that the directed verdict on the
count of fraudulent misrepresentation constituted a final
and appealable judgment. Our examination of the record
revealed no reference to such finding ever being made.
The negligent misrepresentation count ended in a mistrial
due to a hung jury. Doe did not file a posttrial motion
attacking the propriety of the directed verdict on the
count of fraudulent misrepresentation.
The matter was returned to a trial call and reassigned to
another judge, Judge Levin. Prior to the second trial, the
parties’ attorneys had some discussion with Judge Levin as
to whether, in general, a directed verdict carries over to
a second trial. That discussion occurred in the context of
whether to allow the use of testimony from the first trial.
However, defendants’ attorneys did not argue that the
directed verdict on the fraudulent misrepresentation count
should stand and the matter be retried only with respect to
the count which ended in a mistrial — namely, the
negligent misrepresentation count.
The second trial was held in February and March of 2004.
The jury was impaneled and heard the following testimony.
To the extent that the parties bring to our attention any
inconsistencies between the testimony at the first and the
second trials, such inconsistencies will be noted below.
Doe testified as follows. She was college-educated, but
received no medical training. Doe met Albert in April of
1996 through an ad in the Chicago Reader. At that time, she
was 44 and he was 41. At the beginning of their courtship,
Albert looked healthy. Doe and Albert saw each other
frequently in June and July of 1996, but did not become
physically intimate for some time. Doe had previously been
tested for HIV in 1991, when she applied for a disability
insurance. The test result was negative. Doe volunteered to
Albert that she was disease-free and had practiced safe
sex. Doe additionally told Albert that she was very aware
of sexually transmitted diseases and did not want to expose
herself to any. Doe then asked Albert if he had anything to
tell her on the subject. She believed Albert’s answers to
her questions.[fn2]
Doe further testified that she expressed to Albert that she
wanted to be married to him and have his child. With that
in mind, Doe and Albert had unprotected sex in late August
of 1996. Doe noticed that Albert’s penis had dark-colored
pigmentation which looked unusual to her. Doe asked Albert
about it, and he told her that he had previously suffered
from genital warts and had them surgically cauterized.
Albert explained that he was a landscaper and would get
warts on his hands from handling plant material; he claimed
that the warts on his genitals were of similar origin. In
August and September of 1996, Doe noticed a problem with
Albert’s ability to walk straight; he was a little unstable
on his feet.
Doe’s testimony continued as follows. In early September of
1996, Doe herself became ill. She had flu-like symptoms
with high fever. Doe testified that, thinking it was just
flu, she did not see a doctor. Doe stated that she made no
connection between her flu-like illness and having had
unprotected sex with Albert.
In the fall of 1996, Albert went to Wyoming to buy a
bar/restaurant. According to Doe, when she visited Albert
in Wyoming in early 1997, Albert looked “a little worn out.
He was tired.” Doe also noted that Albert was thin. In this
regard, during the first trial Doe testified that Albert
had lost quite a bit of weight, and his skin was very dry,
almost ashen looking. Doe asked Albert about his appearance
and believed his answer. During Doe’s visit to Wyoming,
Albert proposed to her. In spring of 1997, Albert invited
Doe to Reno, Nevada. Doe understood that Albert was in Reno
to see a doctor for heavy-metal poisoning. Doe went to
Reno, but did not go to the clinic with Albert.
In mid-May of 1997, Doe met the Dillings for the first
time. Doe either earlier or at that time learned that Kirk
was a prominent attorney who specialized in food and drug
litigation. During that first meeting, the topic of
Albert’s health and medical care came up. Doe testified
that Betty had stated that she and Kirk were in charge of
Albert’s medical care; that Kirk was a medical expert in
these matters and they were very concerned about Albert’s
health; and that Albert would be fine. In that context, Doe
was told that Albert’s only problem was heavy-metal
poisoning.[fn3]
According to Doe, over the next 2 1/2 years the topic of
Albert’s health came up in numerous conversations with the
Dillings, both in person and by phone. At no time was Doe
told that Albert may have AIDS. Doe was told that Albert
had heavy-metal poisoning and, later, Lyme disease. Doe
testified to various specific instances when she had such
conversations with the Dillings, which instances will be
related here in the context in which the conversations
occurred. For instance, when at Christmastime of 1997, Doe
discussed the issue with Betty, Betty maintained that
Albert’s problem was heavy-metal poisoning and that he was
in the care of the right doctors and would eventually be
well. Kirk, in his evidence deposition which was read to
the jury at the second trial, admitted that he never told
Doe that Albert was HIV-positive.
According to Doe, the Dillings paid for most of Albert’s
medical care. Many of the doctors Albert saw were
professional acquaintances of Kirk. Despite the care Albert
received, his health continued to deteriorate. In October
of 1998, Albert had a stroke and was taken by ambulance to
a hospital. When at Christmastime of 1998, Doe and Albert
visited with Doe’s mother in Michigan, Albert had such
severe abdominal pain that Doe and her mother took him to a
local emergency room. After returning from Michigan, in
late December of 1998 or early January of 1999, Doe brought
up the subject of HIV and AIDS in her conversation with
Betty. In addition to describing Albert’s emergency room
visit, Doe described to Betty Albert’s other symptoms,
including that Albert had recently showed her, after going
to the bathroom, a toilet bowl full of blood. Betty
suggested that Albert was suffering from food poisoning. Doe
insisted that Albert was more seriously ill and further
stated, “if I didn’t know better I would say he looked
almost like a man who has AIDS. Could he have AIDS?” Betty
said it was not so. This conversation was conducted within
the earshot of Kirk, who participated in it.[fn4] At a
later date, Doe suggested taking Albert to the Mayo Clinic
for an evaluation. Betty, in Kirk’s presence, decided
against it.
Doe further testified that although she and Albert had not
yet married, she felt like the Dillings’ daughter-in-law.
She believed the Dillings’ statements about Albert’s health
and was waiting for him to get better. After Doe and Albert
got back to Chicago from the trip to Michigan, Albert
stayed in Doe’s condominium and she took care of him for
almost a year, until his death in November of 1999. That
included cooking for Albert, feeding him when he could not
feed himself, bathing him, dressing and undressing him,
assisting him in going to the bathroom, and cleaning up
after him. Doe was also working in order to support both of
them financially. During that time period, Doe spoke to the
Dillings at least every other day. Betty, within Kirk’s
earshot, continued to maintain that Albert suffered from
heavy-metal poisoning and, later, Lyme disease.
Doe further testified that in May or June of 1999, Albert
started seeing Dr. Hauser, an acquaintance of Kirk. Doe
went along with Albert to every visit. On June 24, 1999,
Dr. Hauser diagnosed Albert with Lyme disease. Doe called
Betty and told her, “We finally have a diagnosis. Now we
know what’s really wrong with Albert.” Toward the end of
summer of 1999, Doe began to notice changes in her own
physical condition. Her hair was falling out; her gums bled
profusely when she brushed her teeth; her skin started to
split and get sores. Doe attributed those symptoms to being
a full-time caretaker in addition to working, as well as to
lack of sleep, exercise and self-care. During this period,
she did not see a doctor. By September or October of 1999,
there was still no improvement in Albert’s condition. Doe
questioned Dr. Hauser about that and he suggested that
Albert see another doctor. Albert next saw Dr. Waitley, who
tested him for HIV. On November 2, 1999, in Doe’s presence,
Dr. Waitley advised Albert that he was HIV-positive. Doe
promptly sought HIV testing for herself and learned that
she too was HIV-positive.
Doe admitted that she did not seek medical care in
connection with her HIV infection until March of 2000, when
she saw Dr. Douglas Finlayson. Doe further testified that
Dr. Finlayson did not prescribe any anti-retroviral drugs,
but rather told her to take vitamin supplements. In March
of 2001, Doe saw Dr. Michele Till, who was medical director
of the Women’s AIDS clinic at Northwestern Memorial
Hospital. In May of 2001, Dr. Till started Doe on highly
active anti-retroviral therapy.
Kirk, in his evidence deposition, testified that he was an
internationally recognized attorney specializing in food and
drug law. Kirk had represented many doctors and some
healthcare institutions. His clients included Dr. Douglas
Brodie; Dr. Fuller Royal, who practiced in Nevada; Dr.
Helmut Keller, who practiced in Germany; and Dr. Hauser.
Kirk, by virtue of his professional experience and through
popular media, was aware of a disease known as HIV/AIDS
which affected the immune system. Kirk, however, denied
that Albert had AIDS and expressed a belief that Dr.
Waitley had misdiagnosed Albert’s condition “and then
killed him with drugs that caused his death in less than
three weeks.”
Kirk further testified that in 1992 he recommended to
Albert that he see Dr. Keller in Germany about his genital
warts. Kirk was extensively questioned about his knowledge,
during the relevant time period, as to whether Dr. Keller
treated immune system disorders. In this regard, Kirk
stated that Dr. Keller’s specialty was treatment of cancer,
and that Dr. Keller did not treat HIV. Kirk admitted that
he knew that Dr. Keller in his practice utilized a certain
treatment modality called “Carnivora,” but denied that he
knew that Dr. Keller’s practice concentrated in utilizing
Carnivora treatments. Kirk also denied that by 1997, he
knew that Carnivora was used to treat the immune system,
stating that he understood Carnivora to be used to treat
cancer. On this point, Doe’s counsel attempted to impeach
Kirk by prior statements he had made in his discovery
deposition, where Kirk denied that Carnivora was a cancer
remedy and stated that Carnivora was a remedy for the immune
system. Kirk then responded that Carnivora “affects the
immune system.” We note that no expert evidence was
introduced to the jury as to whether Carnivora was, in
fact, an immune system treatment.
Doe’s counsel also questioned Kirk about why he did not
list Dr. Keller in his answers to the interrogatories which
asked to identify all physicians who treated Albert from
1992 until his death. Kirk responded that he listed Dr.
Keller’s clinic.
Kirk further testified that in the mid-1990s he recommended
that Albert see Dr. Royal at the Nevada clinic. Kirk had
also recommended to Albert certain treatments he knew
about. One of the treatments was known as chelation
therapy.[fn5] In the late 1990s, Kirk recommended that
Albert see Dr. Hauser, who subsequently became his client.
Over the years, Kirk and Betty paid thousands of dollars
for Albert’s medical treatment.
Kirk admitted that he told Doe that Albert suffered from
heavy-metal poisoning and/or Lyme disease. Kirk stated that
he never told Doe that Albert had HIV/AIDS because “he
didn’t.”
James Walgreen, the Dillings’ former son-in-law, testified
in his evidence deposition to the following. Walgreen was
recently divorced from the Dillings’ daughter Victoria.
Walgreen recalled that when he was still married to
Victoria, he, Victoria and the Dillings discussed Albert’s
health on several occasions. Walgreen stated that he and
Victoria were concerned about Albert’s health and were told
that Albert had Lyme disease and lead poisoning. Walgreen
further testified that “[a]pproximately a year before
[Albert] passed away,” when he and Victoria were visiting
the Dillings at their home, Betty, in Kirk’s presence,
mentioned that Albert was suffering from AIDS. The
conversation took place in the sunroom of the Dillings’
home. This was the only time either of the Dillings
mentioned the subject of Albert’s HIV/AIDS in Walgreen’s
presence. According to Walgreen, when he suggested
informing Doe that Albert had AIDS, the Dillings told him
to keep quiet because it was none of his business.
Defendants’ attorneys extensively questioned Walgreen about
his bias against the Dillings. Walgreen testified that he
filed for divorce from Victoria in August of 2000, after
almost 20 years of marriage, and that the divorce became
final in January of 2002. Walgreen denied being biased
against the Dillings and stated that he liked Kirk.
Betty was initially called to testify as an adverse witness
pursuant to section 2-1102 of the Code of Civil Procedure
(the Code) (735 ILCS 5/2-1102 (West 2002)). Subsequent to
that, she took the stand on her own behalf.
In her nonadverse testimony, Betty testified that until
Albert was diagnosed with Lyme disease in 1999, the only
ailment she was aware Albert was suffering from was
heavy-metal poisoning. In 1999, Betty learned that Dr.
Hauser diagnosed Albert with Lyme disease. Betty admitted
that until she learned of that diagnosis, she told Doe that
Albert’s only problem was heavy-metal poisoning and that he
would get better. Betty testified consistently with Kirk
that they helped Albert with his medical bills. Betty
further testified that she did not want Albert evaluated at
the Mayo clinic because “Albert had no health insurance and
it was prohibitively expensive.” Betty admitted that she
had a conversation regarding Albert’s health with Doe after
Doe and Albert returned from Michigan in December of 1998
or January of 1999. She denied, however, that the subject
of AIDS was ever brought up in that conversation. Betty
further stated that she never discussed the subject of AIDS
with Doe and never heard Doe bring up the subject in her
presence.
Betty also denied that the November of 1998 conversation
Walgreen testified about — in which she supposedly
had stated that Albert had AIDS — ever took place.
In this regard, Betty indicated that the Dillings did not
use the sunroom of her home where, according to Walgreen,
the conversation took place, because it was unheated and,
additionally, Kirk would only be able to get into the
sunroom with great difficulty because he used a walker and
the sunroom had steps he was afraid to navigate.
In her section 2-1102 testimony as an adverse witness,
Betty admitted that she and Kirk discussed Albert’s health
with Doe on many occasions, both in person and over the
phone. In the context of discussing Albert’s health, Kirk,
“on some occasions,” held himself out to Doe as someone
having specialized knowledge in the field of health. Betty
further admitted that she and Kirk were very much involved
in Albert’s health care and medical treatment, and that
Kirk referred Albert to many doctors. Betty further
admitted that she and Kirk “conferred with those doctors
from time to time.” Because Kirk held himself out as an
expert in medical matters, he had most of the direct
contact with Albert’s doctors. “Occasionally” Kirk would
receive and review the doctors’ records and reports. Kirk
shared with Betty what he had learned after conferring with
Albert’s doctors. Betty stated that she did not understand
those things.
Betty acknowledged that by early 1997, she was aware of a
disease known as HIV/AIDS and that it could be transmitted
through sexual contact.
Betty testified that she was aware who Dr. Keller was and
that he had been a client of Kirk’s. Betty was also aware
that Kirk had arranged for Albert to be treated by Dr.
Keller in Germany. Betty admitted that Kirk had
communicated with Dr. Keller after Albert’s treatment. Doe’s
counsel questioned Betty, as he did Kirk, about why she did
not list Dr. Keller in her answers to the interrogatories
which asked to identify all physicians who treated Albert
from 1992 until his death. Betty, similar to Kirk,
responded that she listed Dr. Keller’s clinic.
Victoria Dilling, in her evidence deposition, denied that
the conversation Walgreen referred to in his testimony ever
took place. Victoria testified consistently with Betty that
the Dillings did not use the sunroom where the conversation
supposedly took place because Kirk was afraid to use the
stairs leading to it. Victoria further stated that in the
20 years she was married to Walgreen, she, Walgreen and the
Dillings never had any conversations about sex because Kirk
was “very conservative.” Victoria also stated that she,
Walgreen and the Dillings never discussed the subject of
AIDS and that she did not know Albert had AIDS until he was
diagnosed by Dr. Waitley. Regarding her divorce from
Walgreen, Victoria stated that it was “extremely difficult.”
Dr. Joel Cornfield, in his evidence deposition, testified
that he was a successor to the urology practice of a friend
of Kirk, but indicated that he personally did not know
Kirk. Dr. Cornfield treated Albert in 1992 for genital
warts, a condition he characterized to be a sexually
transmissible disease. Dr. Cornfield testified that Albert
then told him he was HIV-positive.
Dr. John McGillen, an expert hired by defendants, testified
via evidence deposition and live testimony. Dr. McGillen
was in private practice, specializing in internal medicine
and infectious diseases. Over the years, Dr. McGillen
treated a number of patients infected with HIV; however, he
acknowledged that his experience with HIV was “relatively
limited” and only 1% of his patients were HIV-positive. Dr.
McGillen testified that he had reviewed Dr. Keller’s
records, which were given to him by defendants’ counsel.
The records showed that Albert was HIV-positive in 1992.
After reviewing Albert’s other medical records provided to
him by defendants’ counsel, Dr. McGillen opined that Albert
did not suffer from Lyme disease and that there was no
evidence Albert suffered from heavy-metal poisoning.
Regarding Doe’s flu-like illness in September of 1996, Dr.
McGillen opined that it is “certainly very possible” that
Doe was then experiencing an episode of acute HIV
infection. Dr. McGillen additionally opined that although
it is “very beneficial” to aggressively treat a newly
infected individual with anti-retroviral therapy, the
period during which such treatment is of benefit is short.
“Certainly six months after [an individual becomes] infected
it is of no value.” According to Dr. McGillen, delays in
treatment after the initial six-month period following
contracting HIV are acceptable and may even be desirable
because of side effects of anti-retroviral drugs. Lastly,
Dr. McGillen opined that the delay of 2 1/2 years in
diagnosing Doe’s HIV infection “had no effect at all on her
prognosis or survival rate[].”
Dr. Finlayson, a family practitioner, testified that he
performed various tests on Doe between March of 2000 and
February of 2001. Consistent with Doe’s testimony, Dr.
Finlayson further testified that he did not prescribe
anti-retroviral therapy. In February of 2001, Dr. Finlayson
advised Doe to see an HIV specialist.
Dr. Till, Doe’s treating physician who, as noted, was
medical director of the Women’s AIDS clinic at Northwestern
Memorial Hospital, testified via evidence deposition. In
addition, she was cross-examined live. Dr. Till opined that
the flu-like symptoms Doe experienced in September of 1996
were an indication that she became infected with HIV in late
summer of 1996, as a result of having unprotected sex with
Albert. Dr. Till further opined that Doe would “most
likely” have seroconverted, i.e., tested positive for HIV
by the spring of 1997. Dr. Till explained that
seroconversion “can occur from anywhere from a couple of
weeks to a few months” after a person is exposed to the HIV
virus, and that “the vast majority” those exposed to HIV
seroconvert within six months.
In the spring of 2001, Dr. Till diagnosed Doe with AIDS.
According to Dr. Till, Doe was a “rapid progressor”
— someone in whom the virus reproduces quickly,
causing rapid progression to “full blown” AIDS — and
Doe’s lack of treatment before May of 2001 caused
irreversible damage to her immune system. Specifically, Dr.
Till testified that in May of 2001, prior to being started
on anti-retroviral therapy, Doe had a “CD-4” cell count of
123, indicating that she had AIDS, and, as such, even with
treatment, Doe belonged in a category of patients who are at
a significantly higher risk of death than those who started
treatment in earlier stages of the disease, before their
CD-4 counts fell below 200. With regard to Doe’s delay in
treatment attributable to her not knowing that she was
HIV-positive, Dr. Till opined that without the delay, Doe
“would have done better, perhaps not progressed to AIDS,”
explaining that, in general, “treating someone stops the
progression of HIV if they respond well to the medication.
Any delay in [treating] a rapid progressor will
lead to a more advanced HIV disease.” Dr. Till reiterated
that earlier treatment would have prevented Doe from
developing AIDS. Regarding the impact of stress Doe
experienced in the last year of Albert’s life, Dr. Till
opined that the stress probably caused Doe to “progress
further in her disease than she may have had she had a
stable, calm environment in which to live.”
At the close of evidence, defendants moved for a directed
verdict on both counts. At no time did defendants’ counsel
bring to Judge Levin’s attention the fact that his
predecessor, Judge Devlin, had already directed a verdict
in defendants’ favor on the count of fraudulent
misrepresentation. Judge Levin, as noted, directed a verdict
in defendants’ favor on the negligent misrepresentation
count and submitted the fraudulent misrepresentation count
to the jury. Judge Levin further directed a verdict in
defendants’ favor on all claims for punitive damages. After
learning that the fraudulent misrepresentation count would
go to the jury, defendants’ counsel argued at great length
about how the jury was to be instructed on fraudulent
misrepresentation.
The jury, in a general verdict, found defendants liable and
awarded Doe $2 million in compensatory damages. Judge Levin
entered judgment on the verdict.
On June 25, 2004, defendants’ posttrial motion for a
judgment notwithstanding the verdict or, in the
alternative, for a new trial was denied. On July 21, 2004,
defendants timely filed a notice of appeal, and on July 29,
2004, Doe timely filed a notice of cross-appeal. We granted
the AIDS Legal Council of Chicago (the Council) leave to
file an amicus curiae brief.
ANALYSIS
On appeal, defendants contend that they were entitled to a
directed verdict on the fraudulent misrepresentation count.
Doe, on cross-appeal, contends that Judge Levin erred in
directing a verdict in defendants’ favor on the count of
negligent misrepresentation and on all claims for punitive
damages.
I. Preliminary Procedural Issue
As a preliminary matter, defendants assert that Judge Levin
erred in submitting the fraudulent misrepresentation count
to the jury, given that Judge Devlin had previously
directed a verdict in defendants’ favor on that count.
Defendants do not attempt to develop this contention other
than on very narrow grounds which, as shall be shown below,
are unpersuasive. Specifically, defendants assert that
because Doe did not file a posttrial motion after the first
trial, which ended in a mistrial of the negligent
misrepresentation count, the directed verdict on the count
of fraudulent misrepresentation became final, and Judge
Levin, who presided over the second trial, did not have the
power to alter it or submit it to the jury. In support,
defendants rely on section 2-1202(c) of the Code, which
provides, in pertinent part:
“Post-trial motions must be filed within 30 days after
the entry of judgment or the discharge of the jury, if no
verdict is reached, or within any further time the court
may allow within the 30 days or any extensions thereof.”
735 ILCS 5/2-1202(c) (West 2002).
Defendants predicate their entire procedural argument on the
section 2-1202(c) issue, namely, Doe’s failure to file a
posttrial motion after the first trial. Defendants contend
that in the absence of a timely posttrial motion following
a mistrial of one count and a directed verdict
contemporaneously entered on another count, the circuit
court, after the lapse of 30 days, loses jurisdiction to
vacate or modify the directed verdict. Relying on Cherny v.
Fuentes, 271 Ill. App. 3d 1071, 649 N.E.2d 519 (1995),
which interpreted section 2-1202(c), defendants contend
that the circuit court here lost its jurisdiction even
though no Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a))
finding was made as to the directed verdict’s immediate
appealability.
Doe, relying on Rule 304(a), argues that defendants’
argument is flawed conceptually in that it fails to
recognize that a posttrial motion is not a prerequisite for
a trial court to retain jurisdiction to vacate or modify a
directed verdict where other claims in the matter remain
pending and undetermined. Doe further argues that a
posttrial motion is not ever required after a directed
verdict. In support of this position, Doe relies on Keen v.
Davis, 38 Ill. 2d 280, 282, 230 N.E.2d 859 (1967) (holding
that a posttrial motion is not required after a grant of a
directed verdict), and Fitzpatrick v. ACF Properties Group,
Inc., 231 Ill. App. 3d 690, 709, 595 N.E.2d 1327 (1992)
(“the general rule is that a post-trial motion need not
even be filed to raise the issue on appeal of the granting
of directed verdicts”).
As shall be demonstrated below, it is not at all clear that
the court in Cherny based its decision on jurisdictional
grounds. Although the court appears to begin its analysis
by invoking jurisdictional principles in stating, “The
failure to file a post-trial motion in a timely fashion
deprives the circuit court of jurisdiction to entertain the
motion, and the issues contained in a late-filed post-trial
motion are not properly preserved for appeal,” it concludes
its discussion by stating, “This issue is waived.” Cherny,
271 Ill. App. 3d at 1076-77. Moreover, Cherny appears to be
inconsistent with our supreme court’s decision in Keen,
which it did not discuss.
In Cherny, three Cherny plaintiffs brought claims against
two defendants, Thelma Fuentes and Boris Stulov. At the
beginning of the trial, the circuit court directed a
verdict against one of the plaintiffs, Serge Cherny, as a
sanction for not showing up for trial. The very next day,
the plaintiffs moved for reconsideration of the directed
verdict against Serge. The circuit court denied that
motion. The trial proceeded with respect to the claims of
the remaining plaintiffs. Following the presentation of
evidence and closing arguments, the jury became deadlocked,
and a mistrial was declared with respect to the claims
tried before the jury. The plaintiffs filed no posttrial
motions. More than two months later, the matter proceeded
to trial a second time. At the beginning of the second
trial, the plaintiffs moved to vacate the directed verdict
against Serge entered at the first trial. That motion was
denied. In addition, at the close of evidence at the second
trial, the circuit court directed a verdict in favor of the
defendant Stulov. The second trial also ended in a mistrial
as to the remaining claims against the defendant Fuentes,
and the circuit court apparently set the matter for a third
trial. Approximately two weeks after the second mistrial,
the plaintiffs filed a posttrial motion to vacate all
orders entered in the course of the first trial, including
the directed verdict against Serge. The circuit court
denied the plaintiffs’ motion and, shortly thereafter,
certified, pursuant to Rule 304(a), that the directed
verdict against Serge, as well as the court’s denial of the
plaintiffs’ motion to vacate all orders entered in the
course of the first trial, were final and appealable. The
plaintiffs timely appealed. Cherny, 271 Ill. App. 3d at
1073-74. On appeal, this court affirmed the directed
verdict against Serge. Cherny, 271 Ill. App. 3d at 1077.
Defendants would seek to contend that, in its affirmance of
the directed verdict in Cherny, this court interpreted
section 2-1202(c) to be addressing the circuit court’s
jurisdiction following a mistrial. As noted, this court
began its analysis by stating, “[t]he failure to file a
post-trial motion in a timely fashion deprives the circuit
court of jurisdiction to entertain the motion, and the
issues contained in a late-filed post-trial motion are not
properly preserved for appeal.” Cherny, 271 Ill. App. 3d at
1076. However, while Cherny appears to invoke a
jurisdictional issue at the outset of its analysis, it
predicates its conclusion not on the loss of the circuit
court’s jurisdiction to modify or vacate a directed
verdict, but on waiver:
“Plaintiffs’ arguments that they were simply waiting for
the matter to be set for trial again and that whether they
filed their post-trial motion within 30 days of the
mistrial order is irrelevant are not persuasive. The
statute specifically covers the circumstances of this
case, and plaintiffs failed to meet the requirements of
the statute. They did not file their post-trial motion
within 30 days of the discharge of the jury, and the court
did not grant an extension. This issue is waived.”
(Emphasis added.) Cherny, 271 Ill. App. 3d at 1077.
Moreover, Cherny’s holding, whether predicated on waiver
or jurisdictional grounds, is contrary to our supreme
court’s decision in Keen, where the supreme court held that
a posttrial motion is not required be filed after a grant
of a directed verdict. The supreme court explained:
“Supreme Court Rule 240, effective January 1, 1967, [Ill.
Rev. Stat. 1967, ch. 110A, par. 240,] reads: `The order of
the court granting a motion for a directed verdict is
effective without any assent of the jury.’ It follows the
prevailing trend of doing away with useless form and, as
noted by the committee comment, the new rule `eliminates
an archaic and futile ceremony.’ We see nothing in the
statute to indicate a legislative intent that a post-trial
motion be filed after a directed verdict. In fact, the
contrary is indicated since no such motion is required in
non-jury cases, (section 68.3) [now section 2-1203 of the
Code] or cases in which a jury has failed to reach a
verdict. (Section 68.1(5).)” Keen, 38 Ill. 2d at 282.
We note that the language of section 2-1202(c), formerly
section 68.1(3), has remained unchanged since Keen was
decided. Compare 735 ILCS 5/2-1202(c) (West 2002) to Ill.
Rev. Stat. 1967, ch. 110, par. 68.1(3). Accordingly, we
must take the pertinent requirement of section 2-1202(c) to
address the preservation for appeal of only those issues
that inhere in the mistrial itself, and not, contrary to
the holding in Keen, apply with respect to a directed
verdict on a separate claim which was never submitted to a
jury.
Defendants’ contention is also counterintuitive in light of
Rule 304(a), which makes clear that where a judgment does
not dispose of all claims, the circuit court does not lose
the power to revise a prior final order disposing of a
definite part of litigation, unless the court certifies
such order to be final and appealable:
“If multiple parties or multiple claims for relief are
involved in an action, an appeal may be taken from a final
judgment as to one or more but fewer than all of the
parties or claims only if the trial court has made an
express written finding that there is no just reason for
delaying either enforcement or appeal or both. Such a
finding may be made at the time of the entry of the
judgment or thereafter on the court’s own motion or on
motion of any party. In the absence of such a finding,
any judgment that adjudicates fewer than all the claims or
the rights and liabilities of fewer than all the parties
is not enforceable or appealable and is subject to
revision at any time before the entry of a judgment
adjudicating all the claims, rights, and liabilities of
all the parties.” (Emphasis added.) 155 Ill. 2d R. 304(a).
Here, because the negligent misrepresentation count ended in
a mistrial, necessitating a retrial of that count, and
because the circuit court never entered a Rule 304(a)
certification with respect to the directed verdict on the
count of fraudulent misrepresentation, the directed
verdict, although disposing of a definite part of
litigation, was interlocutory in nature and, as such, “may
be modified or vacated at any time before final judgment.”
Leopold v. Levin, 45 Ill. 2d 434, 446, 259 N.E.2d 250
(1970); accord Citicorp Savings of Illinois v. First
Chicago Trust Co. of Illinois, 269 Ill. App. 3d 293, 297,
645 N.E.2d 1038 (1995) (if the trial court’s order does not
include an express written finding that there is no just
reason for delaying either enforcement or appeal or both,
the order is subject to revision at any time before the
entry of an order which adjudicates all the claims, rights
and liabilities of the parties).[fn6] Moreover, we note
that even if it could be said that the circuit court lost
jurisdiction over the directed verdict, the parties
revested it with jurisdiction by actively participating,
without any objection from defendants, in submitting the
count of fraudulent misrepresentation to the jury at the
second trial. See People v. Kaeding, 98 Ill. 2d 237,
240-41, 456 N.E.2d 11 (1983) (“litigants may revest a court
which has general jurisdiction over the matter with both
personal and subject matter jurisdiction * * * after the
30-day period following final judgment during which
post-judgment motions must ordinarily be filed. In
order for the rule to apply, the parties must actively
participate without objection in proceedings which are
inconsistent with the merits of the prior judgment”); accord
Djikas v. Grafft, 344 Ill. App. 3d 1, 13, 799 N.E.2d 887
(2003). However, although defendants do not prevail on
procedural grounds, they must prevail, for the reasons
discussed below, on the substantive merits.
II. Substantive Merits
As noted, defendants contend that after the second trial
they were entitled to a directed verdict (or judgment
notwithstanding the verdict) on the fraudulent
misrepresentation count. “[V]erdicts ought to be directed
and judgments n.o.v. entered only in those cases in which
all of the evidence, when viewed in its aspect most
favorable to the opponent, so overwhelmingly favors [the]
movant that no contrary verdict based on that evidence
could ever stand.” Pedrick v. Peoria & Eastern R.R. Co., 37
Ill. 2d 494, 510, 229 N.E.2d 504 (1967). The standard of
review of an order denying a motion for a directed verdict
or a motion for judgment notwithstanding the verdict is de
novo. Moss v. Amira, 356 Ill. App. 3d 701, 705, 826 N.E.2d
701 (2005).
To prevail on a claim of fraudulent misrepresentation, the
plaintiff must establish the following elements: (1) the
defendant made a false statement of material fact, which
(2) the defendant knew or believed to be false and (3) made
it with intent to induce the plaintiff to act; (4) the
plaintiff acted in justifiable reliance on the truth of the
statement; and (5) thereby sustained damages. Connick v.
Suzuki Motor Co., 174 Ill. 2d 482, 496, 675 N.E.2d 584
(1996); Board of Education of City of Chicago v. A C & S,
Inc., 131 Ill. 2d 428, 452, 546 N.E.2d 580 (1989); Soules
v. General Motors Corp., 79 Ill. 2d 282, 286, 402 N.E.2d
599 (1980). Doe maintains that because of the Dillings’
misrepresentations she lost an opportunity to begin
treatment when it would have been most effective and
life-prolonging. It bears reiterating that Doe does not
claim that because of her reliance on the Dillings’
misrepresentations she contracted HIV. In fact, Doe’s own
expert opined that she became infected with HIV before she
ever met the Dillings. We note that there is no evidence in
the record to the contrary. Indeed, in her brief on appeal
Doe attributes her physical injuries solely to the delay in
treating her then-undetected HIV infection.[fn7] The
principal issue on appeal therefore is whether Doe may
recover for irreversible damage to her immune system that
occurred between the time she first met the Dillings and
the time she learned she was HIV-positive.
Since Doe proceeds under the theory of fraudulent
misrepresentation, we must first resolve whether the tort
of fraudulent misrepresentation has any viability outside
of a commercial or transactional setting. For the reasons
stated below, we hold that the tort of fraudulent
misrepresentation does have application in a noncommercial
or a nontransactional setting, particularly if physical
harm is involved. What limits the viability of a cause of
action for fraudulent misrepresentation is not the
distinction between an economic and an interpersonal
setting, but rather whether the person alleging
misrepresentation was justified in her reliance on the
truthfulness of the statements.
It is true that the tort of fraudulent misrepresentation
has its origins in commercial or transactional settings.
See Neurosurgery & Spine Surgery, S.C. v. Goldman, 339 Ill.
App. 3d 177, 185-86, 790 N.E.2d 925 (2003) (detailing the
origins of the tort of fraudulent misrepresentation).
Relying on Neurosurgery, defendants contend that fraudulent
misrepresentation is only actionable in commercial cases
involving pecuniary, but not physical, damages. A thorough
review of the applicable law leads us to reject this
contention. In Neurosurgery, the Second District stated, in
rather categorical terms:
“Simply put, fraudulent misrepresentation has emerged as
a tort distinct from the general milieu of negligent and
intentional wrongs and applies only to interferences with
financial or commercial interests where a party suffers
some pecuniary loss.” Neurosurgery, 339 Ill. App. 3d at
186.
The court in Neurosurgery added that the theory of
fraudulent misrepresentation was unavailable to a plaintiff
who suffered physical harm. Neurosurgery, 339 Ill. App. 3d
at 186. The court explained its reasoning as follows:
“[F]raudulent misrepresentation is purely an economic
tort under which one may recover only monetary damages.
McConkey v. AON Corp., 354 N.J. Super. 25, 59, 804 A.2d
572, 593 (2002) (holding that damages in a fraudulent
misrepresentation action are limited to those that are
pecuniary); Jourdain v. Dineen, 527 A.2d 1304, 1307 (Me.
1987) (holding that pecuniary damages are essential to a
fraudulent misrepresentation cause of action).
`Although the invasion of an economic interest by tort or
by contract breach will often cause the plaintiff personal
distress, the interest ordinarily protected in such cases
is purely an economic interest and does not include
interests in personality. Accordingly the usual rule is
that the plaintiff must show pecuniary loss in
misrepresentation cases and the damages are limited to
such pecuniary loss, with no recovery for emotional
distress.’ D. Dobbs, Remedies § 9.2(4), at 559-60
(2d ed. 1993).
While no court has yet specifically declined to extend
fraudulent misrepresentation to noncommercial situations
or to damages for physical harm, there is little occasion
to depart from the historical trend that our predecessor
courts have created because other nominate tort actions
have provided adequate remedies. See W. Keeton, Prosser &
Keeton on Torts §§ 105 through 110 (5th ed.
1984).” Neurosurgery, 339 Ill. App. 3d at 186.
Doe disagrees that the tort of fraudulent misrepresentation
is confined to a commercial setting and in support cites to
Roe v. Jewish Children’s Bureau of Chicago, 339 Ill. App.
3d 119, 790 N.E.2d 882 (2003), and Roe v. Catholic
Charities of the Diocese of Springfield, 225 Ill. App. 3d
519, 588 N.E.2d 354 (1992) — both of which held that
fraudulent misrepresentation by an adoption agency to
prospective parents is actionable. We agree that the Roe
cases extended the tort of fraudulent misrepresentation in
Illinois to noncommercial transactions. However, although
the setting in the Roe cases was definitely noncommercial,
it nevertheless embodied elements of a transactional
situation in that misrepresentations were made by adoption
agencies in connection with placing children for adoption.
Here, on the other hand, representations were made by
future in-laws to their son’s fianc?©e, i.e., in a strictly
interpersonal setting. Another distinction between the
instant case and the Roe cases is that the instant case
involves physical harm, whereas the Roe cases do not.
However, as shall be shown below, we believe that an
attempt to confine the tort of fraudulent misrepresentation
to commercial or, at best, transactional situations is
artificial, unwarranted and contrary to the general
common-law principles articulated in section 557A of the
Restatement (Second) of Torts and followed by many of our
sister states. We therefore agree with Doe’s contention
that the Neurosurgery court erred in stating that physical
harm is not compensable under the theory of fraudulent
misrepresentation. We further agree with Doe that McConkey
and Jourdain, relied upon in Neurosurgery, cannot be cited
for the proposition that physical harm is not compensable
under the theory of fraudulent misrepresentation. As Doe
points out, the plaintiffs in McConkey and Jourdain
suffered no physical harm as a result of misrepresentation.
See McConkey, 354 N.J. Super. at 33, 804 A.2d at 576 (the
plaintiff sought to recover economic and emotional distress
damages for fraudulent inducement to leave secure
employment for a position threatened by the sale of the
company); Jourdain, 527 A.2d at 1305 (the plaintiffs sued
their attorney for lying about filing their personal injury
action within the statute of limitations, thereby causing
them emotional distress). Rather, the pertinent issue in
McConkey and Jourdain was whether damages for emotional
distress were available. Similarly, section 9.2(4) of the
Dobbs treatise relied upon in Neurosurgery addresses the
availability of emotional distress damages for fraudulent
misrepresentation. D. Dobbs, Remedies § 9.2(4), at
559-65 (2d ed. 1993). However, the Dobbs treatise
acknowledges that “personal injury can be caused by
misrepresentation, concealment or nondisclosure of facts,
and when it is, the plaintiff recovers all damages for the
physical harm, the pain and suffering and the accompanying
emotional distress.” D. Dobbs, Remedies § 9.2(4), at
561 (2d ed. 1993).
Any doubt as to the availability of recovery for physical
injury under the theory of fraudulent misrepresentation is
dispelled by section 557A of the Restatement, which
provides:
“One who by a fraudulent misrepresentation or
nondisclosure of a fact that it is his duty to disclose
causes physical harm to the person of another who
justifiably relies upon the misrepresentation, is subject
to liability to the other.” Restatement (Second) of Torts
§ 557A (1977).
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