The Illinois Appellate Court, First District, addressed two important trial and post-trial issues in Johnson v. Advocate Health Hospitals, 2025 IL App (1st) 230087: (1) a defendant’s right to a jury instruction on the theory of “sole proximate cause,” and (2) whether a high-low settlement offer operates to limit or bar an award of prejudgment interest under Illinois law.
Instructional Error: The Right to a “Sole Proximate Cause” Instruction
In a medical negligence case involving neurodevelopmental injuries to a child after birth, the Defendants argued that the child’s condition stemmed exclusively from Fetal Growth Restriction (FGR), and not from any delay in delivery or oxygen deprivation immediately prior to delivery as argued by Plaintiffs. Plaintiffs offered and the trial court submitted IPI Civil No. 15.01, the pattern proximate cause instruction, which, in relevant part, concluded with the sentence, “[h]owever, if you decide that the defendants’ conduct was not a proximate cause of the plaintiffs’ injury, then your verdict should be for the defendants. The defense tendered a modified proximate cause jury instruction—based on IPI Civil No. 15.01—that concluded with the final sentence stating, “[h[owever, if you decide that the sole proximate cause of the injury to Plaintiffs was something else or the conduct of someone else other than Defendants, then your verdict should be for the Defendants.”
The trial court refused to submit the modified instruction, citing the Illinois Pattern Jury Instructions Committee’s 2021 revision, which removed the “sole proximate cause” language from the pattern proximate cause instruction following Illinois appellate opinions which raised a concern that the lack of a definition for “sole proximate cause” in the prior instructions could be confusing to a jury, and presented a semantic problem causing uncertainty as to the meaning of the term “sole” when applied to cases in which more than one alternative cause was argued to be the “sole” proximate cause of the underlying injury. Different panels disagreed on whether the sole proximate cause instruction must be given when the defendant points to more than one party or factor, apart from the defendant’s own conduct, as the exclusive cause of the plaintiff’s injury.
On appeal, the First District held that the trial court’s refusal to give the requested instruction was error. While the revised pattern instruction was a correct general statement of law, it failed to specifically address the defense’s theory that some other factor—FGR—was the sole proximate cause of the Plaintiffs’ injuries. Longstanding Illinois precedent holds that a defendant is entitled to present an alternative sole proximate cause defense where supported by the evidence. See Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83 (1995); Douglas v. Arlington Park Racecourse, 2018 IL App (1st) 162962.
That said, the First District found the trial court’s instructional error to be harmless given the facts of this case. The Court noted that the jury was correctly instructed that Plaintiffs bore the burden of proving proximate cause and that if the Defendants’ conduct was not a proximate cause, the jury should return a verdict for the defense. The Court further explained that the Defendants could have requested a special interrogatory addressing the sole proximate cause theory and that their closing argument thoroughly advanced its FGR-based theory of sole proximate causation of child’s neurodevelopmental injuries. For this reason, the First District held that there was no reversible prejudice under the high bar for instructional error set forth in Bailey v. Mercy Hospital & Medical Center, 2021 IL 126748.
High-Low Settlement Offers and Prejudgment Interest
The case also raised a novel issue under Illinois’s prejudgment interest statute, 735 ILCS 5/2-1303(c). Prior to trial, the Defendants offered plaintiffs a traditional $5 million settlement, which they rejected. Later, while the jury was deliberating, the Defendants extended a high-low offer of $6 million to $20 million. Plaintiffs did not accept the high-low proposal before the jury returned a $20 million verdict. The Defendants then argued that Plaintiffs were barred from recovering prejudgment interest because the jury verdict matched the high end of its high-low offer—making it the “highest written settlement offer” under the statute. The Court disagreed.
In a careful statutory analysis, the First District concluded that a high-low offer is not a “settlement offer” within the meaning of Section 2-1303(c). While a high-low offer may function as a conditional settlement mechanism, it does not resolve the case pre-verdict or reduce the burden on the court. Importantly, a high-low offer does not eliminate the delay or litigation costs that prejudgment interest is meant to address. Citing Cotton v. Coccaro, 2023 IL App (1st) 220788, the Court emphasized that the prejudgment interest statute is aimed at encouraging early resolution and penalizing delay of litigation —not discouraging structured post-trial arrangements.
As a result, the Court allowed Plaintiffs to recover interest on the $15 million difference between the verdict and the earlier $5 million settlement offer.
Takeaways
This opinion offers important guidance to trial counsel:
- A defendant remains entitled to a non-pattern jury instruction on sole proximate cause if the evidence supports it—even after the pattern instructions were revised.
- High-low agreements, while useful as risk-management tools, do not qualify as traditional settlement offers for purposes of limiting or precluding an award of prejudgment interest under Illinois law.
Together, these rulings underscore the continuing importance of tailoring both trial strategy and post-verdict motions to the precise requirements of Illinois procedural law.
