Five years and four months after Tony Affatato died, a jury of nine women and three men filed into a Daley Center jury room to fix the blame. At 9:40 a.m. on Oct. 26, 1990, after five weeks of testimony, the jurors faced an array of questions about who and what caused Affatato`s death in 1985.
Was it the Jewel food store chain, which manufactured the salmonella-tainted gallon of 2 percent milk that he drank? Was it the negligence of two doctors who treated the 41-year-old state employee for 58 days before his death? Or did Affatato deserve some of the blame for his death because of his previous lifestyle and for not following doctors` orders?
The jury`s verdict would not necessarily be the final word. It could return no decision or an outlandish one, either way forcing a new trial. After thousands of hours of motions, hearings, arguments, witnesses, delays, surprises and dread, after hundreds of thousands of dollars spent in preparation and trial, neither side wanted to do it again.
As the jurors retired to deliberate, the four teams of lawyers waited.
For three days in September, just before the trial opened, the lawyers had grilled 68 prospective jurors before settling on these 12. But the selection of a jury remains an art, not a science. There is still no way to predict what 12 people will do in a jury room.
In the Affatato case, lawyers relied on instinct to pick jurors. In each they perceived some facet of character, attitude or background that could favor their clients.
Now they would discover if they had been right.
”It is your duty to determine the facts from evidence produced in open court,” Circuit Court Judge William A. Kelly told the jurors. ”Neither sympathy nor prejudice should influence you. Your verdict must be based on evidence and not upon speculation, guess or conjecture.”
The judge instructed the jury to decide two issues. The first was the
”survival action,” that is, whether any of the defendants contributed to Affatato`s prolonged illness and were liable for medical expenses, loss of wages and his pain and suffering.
Then the jurors were to determine if any of the defendants was liable for Affatato`s death. If so, they were to set a damage award to compensate his family for loss of future wages and for companionship as a husband and a father of two.
Reaching a verdict is never quite as simple as the judge`s instructions might suggest. A hard-fought lawsuit leaves the jurors` notebooks and memories littered with conflicting ideas and impressions.
Shirley Affatato`s lawyers, Robert Holstein and David Poindexter, hoped they had chosen jurors sympathetic to the underdog.
”You`re looking for as many women as you can,” Holstein said, ”women with children, preferably, and a couple of men who share a similar lifestyle
(with the Affatato family).
”The classic bad juror is the accountant who is going to take out a ledger or an engineer who tries to quantify everything in a dollar amount. This is a case where you want a jury with a reasoned emotion, people empathetic to the devastation of a family`s emotions.”
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Defense lawyers seek many of the same qualities in prospective jurors.
”It has nothing to do with age, race, lifestyle or sex,” said Dennis Rasor, the lawyer who defended Resurrection Hospital and Dr. Tighe Zimmers, the emergency room doctor who treated Affatato. ”When you represent an institution or a large corporation such as the defendants in this case, you don`t want (jurors) who are anti-establishment. You don`t want somebody who has no idea of the value of a dollar; they have to be people who know $1 million is a lot of money.
”We wanted jurors who would be offended by big awards. We wanted jurors who were not going to let Mrs. Affatato win the lottery.”
The defense, too, avoided choosing jurors with highly technical backgrounds or jobs in which they handle large amounts of money. Those people, it seems, can be too abstract and theoretical. They may form such strong opinions that they can thwart verdicts or formulate theories to justify high awards.
The jury the two sides found acceptable represented a mixture of occupations and socioeconomic levels. One was a Chicago teacher`s assistant, another a secretary at R.J. Reynolds. Among the others was a crew worker at a McDonald`s, a bookkeeper, a court reporter, a clerk at an industrial and commercial equipment distributor, a warehouse worker, a Zenith machinist and a widowed suburban housewife.
How the jurors reached their verdict probably was typical of the way thousands of other juries deliberate every year.
”Basically,” said one of seven jurors interviewed after the trial, ”we each went in there with our own pieces of truth and piled them into the middle of the table. We pulled out the ones we all thought we could finally agree on, and the verdict was a mixture of all of us.”
That sounds calm and reasoned, but the deliberations were far more impassioned, jurors said.
The session started with each juror offering his or her view of the merits of the Affatato charges and evidence. That is how everyone discovered there was a wide divergence of opinion.
Many of the jurors were surprised Tony Affatato didn`t seek another medical opinion after he had suffered for weeks. A few thought he was using his illness in a scheme to get rich. They wanted to give his family nothing.
Others argued Affatato only shared partial responsibility for the problems that led to his death. They thought the defendants should be made to pay something.
Soon a consensus began to take shape. Everyone began to agree on the outline of a verdict. Everyone, except two jurors.
One was outspoken: She thought the rest were being extremely stingy. At one point, she grew so incensed that she refused to discuss it anymore, according to other jurors. ”She wasn`t going to talk anymore . . . we thought we`d be a hung jury,” another juror recalled.
”There was yelling,” said juror Salvatore Trapani, a Talman Home Federal Savings and Loan maintenance worker. ”(The outspoken holdout) was saying even if we`re going to give (the Affatato family) as much as $5 million the two doctors and Jewel don`t pay, the insurance does.”
The holdouts were adamant enough that the majority had to begin increasing the award.
”We were inching our way along,” said juror Rosemary Scarpelli, 33, a court reporter.
Most of the jurors seemed to rely on the testimony of the experts, though with varying degrees of enthusiasm. Some were chagrined that the experts had been so divergent in their opinions and seemed so partisan.
”You (had to) weed out the b.s.,” said one woman, who arrived at her verdict by selecting various shreds of expert testimony. ”You made your own conclusions.”
”I was figuring out how much they made in an hour, how much I made in a day and they beat me every time,” said another woman. ”What`s the point?
They`re getting away with perjury.”
The defense effort to undermine the credibility of Affatato and his widow clearly took a toll.
Affatato`s lawyers had hoped to use a diary written by Tony Affatato during his illness as a powerful emotional testament. But the judge barred most of the diary`s contents, and the defense lawyers suggested the diary was part of a scheme by Affatato to build a strong lawsuit against Jewel. Several jurors agreed.
Most devastating to the Affatato case, however, was a revelation during the trial that Tony Affatato falsely claimed some college credits on a job application.
”The job application,” said one juror, ”showed he could be dishonest so it cast some doubts on my mind, especially how truthful the diary could have been.”
”Some of the people had the general assumption that he was a bum,” said another juror.
”They just knocked out his credibility with the job application,” said a third. ”Without that, we would have given (Mrs. Affatato) $10 million.”
By the time the jurors concluded seven hours of deliberation, the darkness of a brisk autumn evening had fallen outside on the Picasso. It was 5:35 p.m. on a Friday, and streams of pedestrians crossed the plaza far below the 19th-floor courtroom, already liberated for the weekend.
Inside, the other courtrooms along the normally bustling hallway had long since emptied, leaving an eerie hush behind. As the jurors filed into Kelly`s courtroom for the last time, several of them looked strained, and two of them, with trembling lower lips, seemed near tears.
With Shirley Affatato, Zimmers, the nun from the hospital and the executive from Jewel absent, the courtroom seemed like an incomplete stage. It was a stilted ending to what, up until now, had been a rousing drama.
The jurors early on had agreed that Affatato`s lawyers failed to prove salmonella poisoning killed Affatato. And they agreed that the plaintiffs failed to prove Affatato`s heart attack was caused by salmonella-induced dehydration.
Those conclusions let Jewel off the hook on the wrongful-death charge. After much discussion, the jury decided the two doctors and the hospital were negligent in their treatment of Affatato and liable for his wrongful death.
The more difficult decision was the ”survival action,” whether Affatato had contributed to his prolonged illness. In that, the disagreements had been much sharper. Some thought Affatato bore all of the blame; others vehemently disagreed. The jurors argued about how much he should be blamed until they finally compromised and settled on a percentage.
The final award was not to be $10 million, $5 million or even the $2 million that the most generous jurors were holding out for.
”Mr. Foreman, has the jury arrived at a verict?” the judge asked Stanley Simkus, a Zenith machinist.
”Yes, we have your honor,” said Simkus, standing.
A sheriff`s deputy took the verdict forms to the bench, and the judge handed them to the court clerk. The outcome of the 5 1/2-year struggle was perfunctorily read aloud.
The jury awarded Shirley Affatato a total of $1,162,500 but reduced that by $325,000 for what they deemed Tony Affatato`s blame in aggravating his illness. That left $837,500. Forty percent of that, according to the standard agreement, would go to the plaintiff`s lawyers, along with $80,000 in expense money. Affatato and her children would receive $422,500 tax-free. Two-thirds of that went into trust funds for the children.
Of the defandants, Dr. Oscar Osimani, Tony Affatato`s personal physician, was assessed 45 percent of the blame in the survival action; Jewel took 35 percent and Zimmers and Resurrection Hospital shared the remaining 20 percent. In the wrongful-death verdict, Osimani received 70 percent of the blame;
Zimmers and the hospital shared the other 30 percent.
The final amount was less than the $900,000 out-of-court settlement the defandants offered before the trial and fell far short of the $1.5 million offer made early in the trial.
The jurors were unaware of those offers during the trial. Hearing about them afterward, some were flabbergasted.
”She should have taken the money and run,” said one of the $1.5 million offer.
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Some jurors still wondered if they gave too much.
”The reason Mrs. Affatato got that kind of money was because of the kids when they testified,” Trapani said. ”A lot of the jurors thought the kids had to get something, and it got some of us to give a little extra.”
Once the verdict was delivered, Kelly thanked the jurors, inviting them to his chambers, where he presented them with certificates for their service. Meanwhile, the assembled lawyers began gathering their papers and stuffing their briefcases. Their faces betrayed their emotions.
Even though their clients had been found guilty, the defense attorneys, Richard Devine, Jack Mustes and Rasor, were grinning triumphantly.
They stayed behind to chat with jurors as they emerged from the judge`s chambers.
Holstein, Poindexter and the Affatato family lawyer, Rafael Del Campo, were dejected. They left quickly to deliver the bad news to Shirley Affatato. As he was leaving, Holstein stopped by Devine`s table.
”Obviously we`re going to take this to the next step,” he told Devine, indicating there would be an appeal. ”We`ll call you and talk in a few days.”
”Fine,” Devine replied with a grin, ”we bill by the hour.”
Shirley Affatato authorized Holstein to file the appeal last Dec. 21.
In it, the lawyers charge that Kelly showed clear prejudice that favored the defendants and that his rulings unfairly withheld crucial evidence from the jury, including the diary and the autopsy report. The attorneys contend that withholding the evidence damaged Affatato`s case against Jewel. Holstein and Poindexter also are seeking to restore a fifth defendant the judge dropped from the trial, the city`s emergency ambulance service.
Affatato`s lawyers also are asking an appellate court to restore the $325,000 deducted from the original $1 million-plus award.
Since that motion was filed, Resurrection Hospital and Zimmers have paid $55,000 more than the jury awarded so that they would be dropped from the appeal. Instead of $183,750, they paid $238,750 to avoid the legal expense of defending themselves in the appeal.
”It allows them to turn off the meter,” Rasor said.
Jewel, which was levied $236,250, and Osimani, ordered to pay $417,500, have indicated they will fight the appeal.
”We`re content with the jury`s verdict,” said Mustes, Osimani`s attorney. ”It was a good verdict. We have already paid out our money.”
Shirley Affatato has refused interview requests since the verdict.
”You can stew about it and stay angry,” she said. ”Or you can just put it out of your mind. That`s healthier.”
The appeals process has become part of the debate on liability law. In 1940 one in 40 verdict cases was appealed. By 1980 that had grown to one in eight, overwhelming the appellate courts.
Just as in a lawsuit, the appeal is often a tactical maneuver as much as a legal action.
When a plaintiff is unhappy with a verdict, such as in the Affatato case, lawyers sometime file an appeal to pressure defendants to increase an award. That is what happened with Resurrection Hospital and Zimmers.
But the appeals process can cut both ways. Just as often, defendants appeal to thwart jury awards they consider too high.
Moreover, a rich defendant, or the insurance company carrying his liability policy, can threaten to keep the award in limbo for years through the appeals process.
The plaintiff may have been victorious in the original lawsuit but left in desperate need of cash. Most plaintiffs are private individuals of limited means, making them vulnerable to accepting a reduced award to avoid a lengthy appeal.
Judges change only 20 percent of all verdict awards that go to appeal. But those tend to be the multimillion-dollar awards, which are slashed an average of 47 percent, according to the Rand Institute for Civil Justice.
If Shirley Affatato does not settle with the remaining defendants and pursues the appeal, her case probably will not be heard until 1993. If that court grants a new trial, the negotiating game would begin again.
If those negotiations fail to yield an out-of-court settlement, Shirley Affatato would face the defendants again in a courtroom.
That would probably happen in 1994, nine years after the first lawsuit was filed.
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Next: Reforming the system.