Appellate Law

Dead Man?s Act Testimony Reviewed For Abuse Of Discretion

By Steven R. Merican

Howard Agins died of cancer. His estate sued his doctor for failure to evaluate, diagnose, and treat the condition. During trial, the circuit court ruled the Estate waived its right to bar certain of the doctor?s testimony under the Illinois Dead Man?s Act, which ordinarily would prohibit the doctor from testifying about conversations he had with Agins. After a jury returned a verdict in favor of the doctor, the Estate appealed the waiver rulings.

The parties fought over the standard of review. The Estate argued for de novo review because ?the appeal involves application of a statute.? The doctor argued for a tougher ?abuse of discretion? standard, claiming these were typical evidentiary rulings.

The First District Illinois Appellate Court ruled in favor of the doctor. The ?abuse of discretion? standard applied because the ?issues on appeal involve the admissibility of conversations between decedent [Agins] and [Defendant] Dr. Schonberg and do not involve statutory construction.?

In the end, the doctor?s verdict was affirmed. Read the whole case, Agins v. Schonberg, No. 1-08-3207 (12/23/09), bny clicking here.

Full post as published by Illinois Appellate Lawyer Blog on April 20, 2010 (boomark / email).