A state appeals panel on Monday let stand a record $54 million verdict in a case involving a collision between a train and an automobile.
The 1st District Appellate Court refused Illinois Central Railroad Co.’s request for a retrial, despite the railroad’s contention that it was ”ambushed” on the first day of trial with a 22-minute day-in-the-life video about one of the victims.
In January 2001, Lilia Apulello, 40, of Carol Stream, was driving with her parents, Fidel Velarde, 73, and Francisca Velarde, 72, on Army Trail Road in Bloomingdale when a train struck their Ford Explorer.
Authorities said the crossing gates and warning lights were not working and a dispatcher had erroneously lifted a ”stop and flag” order that was intended to safeguard motorists, wrote Justice Margaret Stanton McBride in a published opinion.
Attorneys for Apulello said she did not hear bells or whistles as she drove into the crossing. Her vehicle was struck by a Chicago Central & Pacific Railroad freight train, was knocked off the tracks and rolled over several times.
Apulello was initially treated only for a broken hand but 10 days later was found to have suffered a major brain injury. Her parents also suffered severe injuries, including brain trauma.
A Cook County jury awarded $34 million to Apulello’s husband and $21 million to her parents.
”The family is pleased,” said the Velardes’ attorney, Our attorneyof Smith & Smith. ”These three people need tremendously expensive medical care. This money is going to help them get the best.”
Terrence J. Lavin represented Lilia Apulello.
”She is quickly deteriorating,” said Lavin, of Lavin & Nisivaco. ”One of her arms is barely functioning. She needs this case to be over.”
The defendants’ main contention on appeal was the video about Apulello.
”Defendants state they were surprised by the video’s existence, vehemently and repeatedly objected to its presentation to the jury, and then suffered a predictable ‘bloodbath’ in excessive damages and badly misallocated fault when the video unfairly elicited sympathy for plaintiffs,” McBride wrote. ”Defendants contend the case must be retried without the video.”
In March 2001, defendants issued Rule 213 interrogatories asking whether any photographs, movies and/or videotapes had been taken of the accident scene, the vehicle, or persons involved. In June 2001, attorneys for Apulello answered ”none.”
With trial slated for Jan. 27, 2002, fact and open discovery were closed in mid-November 2001, McBride wrote. The video was recorded on Jan. 8 and 12, or on Jan. 8 and 16, 2002.
On Jan. 28, 2002, Lavin told the defendants that he had the video and intended to use it at trial. At that point, neither the judge nor the defense had viewed the recording, and the judge deferred ruling on its admissibility.
Lavin again raised the subject on Jan. 29, 2002, after jury selection. He described the film as ”demonstrative” rather than substantive evidence of the nature and extent of Apulello’s injuries.
The defense objected to its use because it was past discovery time and because it contained ”testimonial” audio and unnecessary scenes, McBride wrote.
Attorneys for both sides met, and according to Lavin, three or four scenes were deleted from the video and the sound was muted when the video was shown to the jury.
”The record shows the Apulellos’ attorney played a few minutes of the video without the audio track during his opening statements, without objection from defendants,” McBride wrote. ”There also was objection when Lilia’s sister and [Lilia’s husband] narrated portions of the silenced recording while they described Lilia’s weekday and weekend activities.”
Yet at the end of the week, the defense told the trial judge that they wanted the unedited tapes, and said that they would renew the objection if they did not receive the outtakes as previously requested.
Lavin responded that according to the Illinois Supreme Court’s holding in Cisarik v. Palos Community Hospital, 144 Ill.2d 339, 579 N.E.2d 873 (1991), the outtakes from the original footage were privileged attorney work product, shielding the outtakes from discovery.
The defendants conceded that the Cisarik decision supported the plaintiffs’ position, but thought the Supreme Court’s determination was ”wrong.”
On appeal, the reviewing court found that the defendants waived any contention that they were prejudiced by their lack of access to the outtakes because they failed to object when the edited video was first shown to the jury during Lavin’s opening statements and when it was used to illustrate witness testimony.
McBride added that an additional reason for the waiver was because the defense conceded on the record that they were not entitled to the outtakes, based on the holding in Cisarik.
The appeals court also rejected defendants’ contention that any probative value of the video was outweighed by the danger of prejudice to the defendants.
Before making its ruling, the appeals panel watched the video, which showed Apulello engaging in ordinary activities, such as eating, taking medicine, dressing, brushing her hair and visiting her mother’s house and a grocery market.
”Throughout the film, Lilia appears anxious and easily confused and she is frequently tearful,” McBride wrote. ”In our opinion, however, the film does not dwell on her discomfort.”
Additionally, the video seemed to illustrate the impact of the head trauma, McBride noted, and showed that Apulello had difficulty sustaining attention, that she ”could not think flexibly or find solutions to problems” and that she was ”frustrated, fearful, anxious and extremely depressed.”
Such testimony would have been given even if the video was never shown, she wrote.
”We conclude it was most improbable that the jury was unduly influenced by a film which shows [Apulello] engaging in commonplace activities in a manner that conformed with trial testimony about her injuries and disabilities. It was not an abuse of [the trial judge’s] discretion to allow the jury to see the video.”
Justices Joseph P. Gordon and Jill K. McNulty joined in the ruling.
Michael W. Rathsack represented the Velardes on appeal, while David A. Novoselsky represented the Apulellos family. The firm of Clausen, Miller P.C. represented Illinois Central Railroad Co. and Freeborn & Peters represented Chicago Central & Pacific Railroad Co. For more info like this, please visit our website.
Fidel and Francisca Velarde, et al. v. Illinois Central Railroad Co. and Chicago Central & Pacific Railroad Co., No. 1-02-1859.