A special interrogatory is a question submitted to the jury in addition to the jury instructions to answer an ultimate question in a case. The jury’s answer is returned with the verdict. The majority of special interrogatories are submitted for consideration by the defense. This is telling, revealing them for what they are—tools to unfairly derail a verdict for the plaintiff.
You might have guessed I am not a fan of the special interrogatory. I have gone on the record to abolish the use of special interrogatories and wrote an in-depth article in 2002 for the Illinois Trial Lawyers Association Journal making my case.
The recent case of Stanphill v. Ortberg illustrates how special interrogatories steal verdicts from plaintiffs in the trial court and protract litigation driving up costs and expending crucial judicial resources. While the appeal process ultimately restored the plaintiff’s verdict in Stanphill it was a long and arduous process that severely prejudiced the plaintiff.
The plaintiff filed a wrongful death and survival action against a social worker and the hospital where she practiced alleging negligent treatment leading to his father’s death by suicide. The jury entered a general verdict in favor of the plaintiff awarding nearly $1.5 million. However, they answered “No” to a special interrogatory proffered by the defendants as to whether it was reasonably foreseeable to the social worker at time of his visit that the decedent would commit suicide within nine days. Based on the jury’s answer, the court stripped the plaintiff of his verdict and ruled for the defendant.
On appeal, the Illinois Supreme Court reversed and restored the plaintiff’s verdict holding the court erred in giving the special interrogatory to the jury because it was phrased in the subjective and thus it was improper and did not test an ultimate fact of the case. The interrogatory should have used an objective, professional standard. The court overruled prior precedent which had held a subjective standard is appropriate to determine foreseeability.
Mr. Stanphill died in 2005. This case originated in 2007. The plaintiff’s verdict was rendered in June of 2016 and finally restored on December 28, 2018. The special interrogatory did not provide clarity to the jury’s verdict; rather it gave the defendants more than two and half years to hold onto their money. The use of special interrogatories skewed the process in favor of the defendants. This undermines our entire legal system that is based on equity and fairness; so I will continue the fight to eliminate this enemy of the plaintiff and justice.
