text:
    IRENE R. NAPOLI, Plaintiff-Appellant, v. HINSDALE HOSPITAL et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1—89—2814
    Opinion filed April 24, 1991.

      Joseph J. Miroballi, of Anesi, Ozmon, Lewin & Associates, Ltd., of Chicago (Kathleen M. Krist, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, of counsel), for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

Plaintiff Irene Napoli appeals from an order of the circuit court granting summary judgment for Hinsdale Hospital, the defendant in plaintiff’s negligence action. Plaintiff argues that because defendant’s negligence could be inferred under the doctrine of res ipsa loquitur, the court erred in granting defendant’s motion for summary judgment.

On February 28, 1986, plaintiff, aged 78, was taken to Hinsdale Hospital for treatment of pneumonia. When plaintiff was examined at the hospital, a laceration was discovered on her lower left leg. Plaintiff suffered permanent injury to her leg as a result of the laceration.

In December 1986, plaintiff filed suit against Hinsdale Hospital charging the hospital with negligence in connection with her injury. In response to a motion by the hospital, plaintiff’s complaint was stricken pursuant to section 2 — 615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2—615). An amended complaint was filed July 22, 1987. A second amended complaint was filed November 22, 1988. In her second amended complaint, plaintiff sought recovery under the theory of res ipsa loquitur, alleging that the injury was not caused by any act or negligence on her part; that at the time she was injured she was under the exclusive management and control of the hospital; and that the injury would not have occurred in the ordinary course of events or in the absence of negligence on the part of the hospital.

Between August and November 1988, discovery depositions were given by plaintiff; her daughter, Norma Jaffe; and Susan Smith and Bernadette Sims, nurses at Hinsdale Hospital.

At her deposition, Jaffe stated that at the time of the accident, plaintiff lived with Jaffe and her husband in their house in Downers Grove, Illinois. Jaffe stated that her mother had been in ill health and that on the morning in question, Beverly Peck, a visiting nurse from Hinsdale Hospital, examined plaintiff at home and suggested that she be taken to the hospital. Jaffe stated that she and Peck helped plaintiff walk from a “utility room” in the house to an attached garage, where plaintiff got into the car. Jaffe stated that she did not notice her mother bump her leg while getting into the car and that her mother did not complain about her leg during the drive to the hospital.

When they reached the hospital, Jaffe went inside and asked for help in transporting her mother from the car to the hospital. A male nurse and two female nurses came to the car with a wheelchair. One of the female nurses opened the car door, lifted plaintiff’s legs out of the car, and helped her to the wheelchair. The male nurse then pushed the wheelchair to the hospital entrance.

Once inside the hospital, plaintiff was taken to the emergency room, while Jaffe was directed to a desk and asked to fill out some forms. Jaffe stated that she did not see her mother bump her leg or hear her complain about pain in her leg while being taken from the car to the hospital.

Jaffe stated that after filling out the forms she went to the emergency room, where she saw her mother lying on a cart. When Jaffe entered the room, one of the nurses asked her how plaintiff had cut her leg. Jaffe stated that she asked her mother what had happened, but that her mother did not respond. Jaffe also stated that she was not present when her mother was taken from the wheelchair and placed on the cart.

At plaintiff’s deposition, plaintiff stated that she did not know when she injured her leg. Plaintiff stated that on the morning of February 28, she was helped to the car by Jaffe and Peck and that she did not remember bumping her leg as she was getting into the car. After she arrived at the hospital, two nurses helped plaintiff from the car and into a wheelchair. The nurses then wheeled plaintiff into the hospital emergency room. Plaintiff stated that she did not bump her leg during that time.

In the emergency room, a nurse assisted plaintiff from the wheelchair to a cart. Plaintiff stated that a stool was placed in front of the wheelchair and that the nurse helped her step onto the stool. Plaintiff did not remember bumping her leg at this time, but she stated that she felt pain in her leg when she stepped onto the stool. Plaintiff stated that she first experienced this pain between stepping on the stool and getting onto the cart.

Susan Smith, a nurse at Hinsdale Hospital, stated at her deposition that on the morning of February 28, Jaffe entered the emergency room and told her that plaintiff needed help getting out of the car. Smith, Bernadette Sims, and Craig Peterson went out to the car and helped plaintiff into a wheelchair.

In the emergency room, Smith, Sims, and Peterson lifted plaintiff out of the wheelchair and placed her on a cart. As Smith and Sims began to undress plaintiff, they noticed blood on her sock and a laceration on her leg. Smith stated that plaintiff was wearing ankle socks, that the socks were doubled over, that there was blood only on the layer of the sock that was next to the skin, and that the blood and the cut were not visible until the sock was removed.

When Smith asked plaintiff how she cut her leg, plaintiff replied that she did not remember. Smith stated that she did not think the injury occurred in the emergency room and that because the sock was doubled over, it could have happened at any prior time, without anyone noticing.

In her deposition testimony, Bernadette Sims stated that when plaintiff arrived at the hospital, she and Smith went out to plaintiff’s car and assisted her into a wheelchair. Sims stated that she did not notice blood on plaintiff’s leg or sock while assisting her, but that she was more concerned with plaintiff’s breathing. Once inside the hospital, Sims and Smith assisted plaintiff from the wheelchair to a cart and began to undress her. Sims stated that it was at this point that she noticed blood on plaintiff’s sock. However, Sims could not recall anything further about plaintiff’s injury.

After the depositions were completed, defendant filed a motion for summary judgment. Pointing out that plaintiff had stated in her deposition that she did not know how she injured her leg, defendant argued that res ipsa loquitur could not be applied to establish its negligence because plaintiff could not demonstrate that the injury was caused by an instrumentality under the defendant’s exclusive control or that defendant was in possession of evidence not possessed or easily obtained by plaintiff.

Plaintiff, in response, argued that res ipsa loquitur was applicable because the facts presented established that at the time of her injury she was in the exclusive control of defendant, that she was incapable of causing her own injury, and that the injury was caused by an instrumentality of defendant. On April 20, 1989, following a hearing, the trial court granted defendant’s motion for summary judgment.

In August 1989 plaintiff filed a motion for reconsideration. Attached to the motion were affidavits from Beverly Peck and Dr. Hyman Bans. Peck’s affidavit stated that she saw plaintiff at home on the morning of February 28, 1986, and that plaintiff was in ill health, debilitated, and incapacitated. Peck also stated that she did not observe any lacerations on plaintiff’s legs or ankles prior to plaintiff’s leaving home. Dans’ affidavit stated that, in his opinion, a laceration of the type suffered by plaintiff would not have occurred unless there had been a failure to exercise proper management and control over her.

In its response to plaintiff’s motion for reconsideration, defendant argued that the affidavits should not be considered because plaintiff had failed to file the affidavits in her response to defendant’s motion for summary judgment and had not offered any reasonable explanation of why the affidavits could not have been filed earlier. Defendant later filed a second affidavit from Beverly Peck in which she stated that she had been available continuously since 1988.

Plaintiff’s motion for reconsideration was denied and this appeal followed.

In Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill. 2d 446, 207 N.E.2d 305, the Illinois Supreme Court pointed out that the purpose of the doctrine of res ipsa loquitur was to allow proof of negligence by circumstantial evidence when the direct evidence concerning the cause of an injury is primarily within the knowledge and control of the defendant. The court stated:

“When a thing which caused the injury is shown to be under the control or management of the party charged with negligence and the occurrence is such as in the ordinary course of things would not have happened if the person so charged had used proper care, the accident itself affords reasonable evidence, in the absence of an explanation by the party charged, that it arose from want of proper care.” 32 Ill. 2d at 449.

Thus, in order to invoke the doctrine of res ipsa loquitur, a plaintiff must demonstrate that she was injured, in an occurrence that would not have taken place in the absence of negligence, by an instrumentality or agency under the control of the defendant. (Dyback v. Weber (1986), 114 Ill. 2d 232, 500 N.E.2d 8; Metz, 32 Ill. 2d at 449.) In addition, it must be shown that the injury was not due to any voluntary act or negligence on the part of the plaintiff. (Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266, 443 N.E.2d 569; Politakis v. Inland Steel Co. (1983), 118 Ill. App. 3d 249, 454 N.E.2d 811.) Whether the doctrine is applicable is a question of law which must be decided by the trial court. (Metz, 32 Ill. 2d at 449; Woodward v. Mettille (1980), 81 Ill. App. 3d 168, 400 N.E.2d 934.) This determination may be made at the pretrial motion stage. Walker v. Rumer (1978), 72 Ill. 2d 495, 381 N.E.2d 689; Greenberg v. Michael Reese Hospital (1979), 78 Ill. App. 3d 17, 396 N.E.2d 1088, aff’d in part & rev’d in part (1980), 83 Ill. 2d 282, 415 N.E.2d 390.

In arguing that the trial court properly granted its motion for summary judgment, defendant contends that the doctrine of res ipsa loquitur is inapplicable because plaintiff failed to establish how or when she cut her leg. Defendant argues that plaintiff’s injury could have occurred at home, in the garage, or in the car en route to the hospital. Defendant further argues that plaintiff also failed to establish that it possesses any evidence about the accident that is unavailable to plaintiff.

Plaintiff contends that res ipsa loquitur is applicable because she established both the precise time that she sustained her injury and that she was under the exclusive management of defendant and its agents at that time. We find nothing in the record to support plaintiff’s contentions.

The deposition testimony in the record clearly demonstrates that the time and cause of plaintiff’s injury is unknown. At her deposition, plaintiff flatly stated that she did not know when she injured her leg. Plaintiff stated that she did not remember bumping her leg as she was getting into the car to go to the hospital and plaintiff’s daughter did not notice plaintiff bump her leg at this time. Plaintiff also stated that she did not bump her leg during the time that she was being helped from the car and into the hospital by Sims and Smith, and her daughter did not see plaintiff bump her leg while being transported from the car to the hospital. Finally, plaintiff stated that she did not remember bumping her leg as she was getting out of the wheelchair and onto the cart.

No one at the hospital had any knowledge of how or when plaintiff injured her leg. Nurse Smith stated that plaintiff’s injury could have occurred at any time prior to plaintiff’s arrival at the hospital and that plaintiff’s sock would have concealed the bleeding. Nurse Sims stated that she did not notice an injury when she helped plaintiff into the hospital, but she also stated that she was more, concerned with plaintiff’s breathing.

Before res ipsa loquitur can be applied, it must be shown that the injury can be traced to a specific instrumentality or cause for which the defendant is responsible or that the defendant was responsible for all reasonable causes to which the accident could be attributed. (W. Keeton, Prosser & Keeton on Torts, §39, at 248 (5th ed. 1984).) Where there are differing possible causes of an accident and a plaintiff cannot establish that it was defendant’s actions which caused the accident, res ipsa loquitur will not be applicable. Politakis, 118 Ill. App. 3d 249.

In Politakis, plaintiffs filed suit seeking to recover for injuries suffered when a cable broke causing the scaffold on which they were working to collapse. Plaintiffs alleged that the accident was caused by defendant’s crane striking the cable. Defendant denied that the crane struck plaintiff’s cable, claiming that it was the condition of the cable or plaintiffs’ improper placement of it that caused the accident. After a jury returned a verdict for defendant, plaintiffs appealed arguing that the trial court erred in refusing to give a res ipsa loquitur instruction. This court affirmed, holding that because there was a possibility that the accident could have been caused by an instrumentality under the control of plaintiffs, res ipsa loquitur was inapplicable. See also Bernardi v. Chicago Steel Container Corp. (1989), 187 Ill. App. 3d 1010, 543 N.E.2d 1004.

In the present case, plaintiff argues that Politakis is not controlling and that, instead, this court should rely on Barkei v. Delnor Hospital (1988), 176 Ill. App. 3d 681, 531 N.E.2d 413. In Barkei, doctors discovered a swelling on the back of plaintiff’s head four days after her birth in Delnor Hospital. Plaintiff was later diagnosed as suffering from brain damage and spinal cord injury. Plaintiff’s parents filed suit against Delnor alleging general negligence under a res ipsa loquitur theory. After a jury returned a verdict for plaintiff, Delnor appealed arguing that there was insufficient evidence that plaintiff was under Delnor’s control when the injury occurred and that plaintiff’s injuries could be attributed to any one of several persons including plaintiff’s parents or the doctor who delivered her.

In affirming the jury’s verdict for plaintiff, the appellate court noted that plaintiff could not have had knowledge or control of any of the possible causes of the trauma she suffered and could not eliminate any one of them with certainty. The court stated that under such circumstances, the question was not whether all other causes of plaintiff’s injury had been ruled out, but whether there was evidence that made it more probable than not that she was under Delnor’s control when she was injured. 176 Ill. App. 3d at 689-90.

We find that plaintiff’s position bears more similarity to that of the plaintiffs in Politakis than that of the plaintiff in Barkei. Here, plaintiff has not identified the time of her injury or the instrumentality that caused her injury; nor has she demonstrated that defendant’s actions were responsible for all reasonable causes to which the accident could be attributed. Although plaintiff does not recall bumping her leg prior to her arrival at the hospital, she also does not recall bumping it after her arrival. Thus, while it is possible that plaintiff’s injury could have been caused by an instrumentality controlled by the defendant, it is equally possible that the injury could have occurred prior to plaintiff’s arrival at the hospital.

Plaintiff claims in her briefs on appeal that she has established that her injury occurred when she was assisted out of the wheelchair and onto the emergency room cart. However, plaintiff’s deposition testimony states only that she felt pain as she moved from the stool to the cart. Nothing in the deposition supports the claim she now makes that it was at this time that she suffered her injury. Moreover, it was plaintiff’s testimony that she did not remember bumping her leg during this time.

In arguing that her injury could not have occurred prior to her arrival at the hospital, plaintiff relies on Beverly Peck’s affidavit, in which Peck stated that she observed no injury to plaintiff’s leg before plaintiff left for the hospital. We find that in light of Smith’s statement that plaintiff’s sock covered the laceration and that neither the blood nor the cut was visible until the sock was removed, Peck’s affidavit is not persuasive. We also find that even if the affidavit could be considered as establishing that it was more probable than not that plaintiff’s injury occurred after her arrival at the hospital, the trial court was not required to take it into consideration because of plaintiff’s failure to file the affidavit in a timely manner. See Hall v. DeFalco (1988), 178 Ill. App. 3d 408, 533 N.E.2d 448; Prather v. Decatur Memorial Hospital (1981), 95 Ill. App. 3d 470, 420 N.E.2d 810.

In conclusion, we find that plaintiff has failed to establish that the possibility that her injury occurred after her arrival at the hospital is any greater than the possibility that it occurred before her arrival, and that, therefore, the doctrine of res ipsa loquitur is inapplicable. Accordingly we affirm the trial court’s entry of summary judgment for defendant.

Affirmed.

CERDA, P.J., and RIZZI, J., concur.


source: Caselaw Access Project

author: JUSTICE MURRAY

license: Public Domain

text:
    THE NORTHERN TRUST COMPANY, Successor Guardian of the Estate of Shelby Anderson Moran, a Disabled Person, Plaintiff-Appellee and Cross-Appellant, v. THE UPJOHN COMPANY, Defendant-Appellant and Cross-Appellee (John J. Barton et al., Defendants-Appellants).
    First District (5th Division)
    Nos. 1—89—2165, 1—89—2244, 1—89—2357 cons.
    Opinion filed April 26, 1991.

      Stephen R. Swofford, Carlton D. Fisher, and Bruce L. Carmen, all of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago, and Sedgwick, Detert, Moran & Arnold (James T. Conlon, of counsel), for appellant Upjohn Company.
    Neil K. Quinn and Randall C. Monroe, both of Pretzel & Stouffer, Chartered, of Chicago (Robert Marc Chemers and Scott O. Reed, of counsel), for appellant John J. Barton.
    William V. Johnson and Susan Marzec Hannigan, both of Johnson, Cu-sack & Bell, Ltd., of Chicago (Thomas H. Fegan, of counsel), for appellant Illinois Masonic Medical Center.

      James H. Canel, Ltd., of Chicago (James H. Canel and Patricia N. Hale, of counsel), for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

This opinion addresses the consolidated appeals brought by the Upjohn Company (Upjohn) (No. 1 — 89—2165); John J. Barton, M.D. (Dr. Barton) (No. 1 — 89—2357); and the Illinois Masonic Medical Center (IMMC or the hospital) (No. 1 — 89—2244), as well as the cross-appeal brought by the Northern Trust Company (Northern Trust), the successor guardian of the estate of Shelby Anderson Moran (Moran), a disabled person. The facts of the case are as follows.

At about 4 p.m. on January 24, 1978, Moran entered IMMC to have her pregnancy aborted. Although Moran had a history of high blood pressure (hypertension) and was taking medication to control this, her blood pressure upon entering the hospital that day was normal and she was observed, upon initial interview by Nurse Ping, to be in generally good health, although she was somewhat overweight.

After Moran was prepared by Nurse Ping and an IV started, Dr. Barton came to the room to perform the procedure. The method chosen to accomplish the second-trimester pregnancy interruption was intrauterine administration of the drug Prestigian din F2 Alpha (Prostin), which was manufactured and distributed by Upjohn.

Instillation of the Prostin began at about 4:20 p.m. and was completed at about 4:25 p.m. Dr. Barton then left the room to go to the nurses' station to write in Moran’s chart. Initially, Moran suffered some of the side effects typically associated with the drug, including nausea, vomiting, cough, and irregular pulse rate. However, by 4:30 p.m. her blood pressure had elevated dramatically to 230 over 75. Dr. Barton was called back into Moran’s room and notified of this change. At about 4:35 p.m., Dr. Barton returned to Moran’s room to check on her. After making a physical assessment, he decided that Moran was having a mild reaction to the Prostin and instructed Nurse Ping to continue monitoring her closely. He then left the room.

At about 4:40 p.m. Moran’s blood pressure seemed to have improved, but her pulse weakened, she became cyanotic, and she experienced shortness of breath. For this reason Nurse Ping started administering oxygen to Moran and attempted to notify Dr. Barton of this fact.

With the administration of oxygen, Moran’s cyanosis did not improve, but she was sitting up and talking and appeared less anxious. Then, at about 4:55 p.m., Moran’s blood pressure dropped very low and she “didn’t look the same” to Nurse Ping. Dr. Barton was paged and, when he did not respond, Dr. Garbaciak, a resident obstetrician/ gynecologist at the hospital, was called to check her. Dr. Garbaciak responded immediately and as he entered the room Moran suffered a cardiac arrest.

Cardio-pulmonary resuscitation was begun and a “code blue” was called. The “code team” arrived immediately and Moran was ultimately resuscitated. However, because of the cardiac arrest, Moran sustained brain injury, which apparently involves permanent memory loss, disorientation, inability to understand abstract concepts, and difficulty in performing normal daily activities. There is some dispute over the exact nature of the brain injury. There is evidence that it may be organic in nature, i.e., an irreversible physical condition resulting from oxygen deprivation to the brain. However, there was also some evidence that it is psychological in nature, i.e., Moran may suffer from a psychiatric condition known as “conversion reaction,” brought on by deep depression. It is also possible that Moran’s non-communicative condition has components of both organic and psychiatric injury. In any event, Moran has required residential care in a nursing home environment since her release from IMMC.

In January 1980, Northern Trust filed a complaint in the circuit court of Cook County naming Upjohn, Dr. Barton and IMMC as defendants. Dr. Barton and IMMC were charged with medical malpractice, while Upjohn was charged with negligence and product liability. After years of discovery and pretrial activity, the cause proceeded to trial before a jury in 1989. The trial lasted eight weeks, after which the jury deliberated several days. They returned a general verdict in plaintiff’s favor and against all defendants, jointly and severally, in the amount of $9,510,301. On April 14, 1989, the trial court entered judgment on the verdict. Post-trial motions were denied. All three defendants filed timely appeals and plaintiff cross-appealed. This court consolidated the appeals in an order dated October 26, 1989, and oral argument was held March 12,1991.

Initially, this court notes that on February 8, 1991, this court, on its own motion, entered an order that the parties show cause why the appeals should not be dismissed as nonfinal. This is because the trial court, in the order being appealed, retained jurisdiction to consider costs and fees and did not include the language that there was “no just reason for delaying enforcement or appeal,” as set forth in Rule 304(a) (107 Ill. 2d R. 304(a)). The order stated:

“Further ordered that this court shall retain jurisdiction to approve Plaintiff’s costs and fees pursuant to the local rules of the Circuit Court of Cook County, but that, in no way is such retention of jurisdiction intended to delay the force and effect of the judgment portion of this order.”

It is a reviewing court’s duty to determine whether it has jurisdiction to entertain an appeal, even if none of the parties raise the issue. (See In re Custody of D.A. (1990), 201 Ill. App. 3d 810, 558 N.E.2d 1355; Illinois State Toll Highway Authority v. Gary-Wheaton Bank (1990), 203 Ill. App. 3d 672, 561 N.E.2d 377.) Consequently, before considering the merits of the appeals before us, we shall first address the question of whether this court has jurisdiction over them.

Recent case law has defined a request for attorney fees, whether pursuant to statute (see Marsh v. Evangelical Covenant Church (1990), 138 Ill. 2d 458, 563 N.E.2d 459 (attorney fees sought as a sanction under section 2 — 611 of the Civil Practice Law)), or pursuant to a contract provision (see Mars v. Priester (1990), 205 Ill. App. 3d 1060, 563 N.E.2d 977 (discretionary award of attorney fees requested under terms of contract)), as a “claim” within the meaning of Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). Consequently, a trial court’s retention of jurisdiction to hear such a claim makes any other judgment in the case nonfinal and nonappealable unless the language set forth in Rule 304(a), that no just reason to delay enforcement or appeal, has been inserted.

In the present case the trial court retained jurisdiction to consider the matter of attorney fees. However, it appears that the issue of attorney fees in this case was not a claim for fees made against the defendants. In this case the trial court retained jurisdiction to approve the proper distribution of the judgment award to cover plaintiff’s cost of litigation, including attorney fees. Such court intervention in the distribution of the judgment award is necessitated by local Circuit Court Rule 6.4, concerning the disposition of pending cases involving minors or disabled persons.

For this reason we do not believe that the issue of attorney fees in this case is a “claim for relief” within the meaning of Rule 304(a). It is not a matter involved in the action nor does it represent a possible liability of the defendants. Consequently, we find that the judgment entered by the trial court was final despite the retention of jurisdiction to consider plaintiff’s attorney fees and this court has jurisdiction to proceed with the merits of the appeals.

UPJOHN APPEAL

Upjohn raises six issues on appeal:

1. Whether the trial court erred by allowing plaintiff to place into evidence the 1981 package insert for Prostin.
2. Whether Upjohn was entitled to a directed verdict or judgment notwithstanding the verdict (JNOV) because plaintiff presented no expert testimony to establish the inadequacy of the warnings included in the package insert for Prostin in 1978.
3. Whether the verdict was against the manifest weight of the evidence because plaintiff failed to establish that the alleged failure to warn was the proximate cause of plaintiffs injury.
4. Whether the jury was improperly instructed on the matter of proximate cause.
5. Whether the trial court erroneously admitted certain testimony by Dr. Barton.
6. Whether remittitur or a new trial on damages should be granted because the amount of the verdict was unsupported by the evidence.

Initially we note that, prior to trial, Upjohn filed a motion for summary judgment. At trial, at the close of plaintiff’s case, Upjohn moved for a directed verdict and in a post-trial motion Upjohn moved for judgment notwithstanding the verdict. In each instance, it was Upjohn’s contention that expert testimony was necessary to establish its liability and that because no expert had been presented by plaintiff to establish the inadequacy of the warning provided in the Prostin package insert, it was entitled to judgment in its favor. We agree.

There is no case law in Illinois which addresses the issue of whether expert testimony should be required in actions against drug manufacturers alleging a failure to adequately warn. There are, however, cases in other jurisdictions which establish the need for expert testimony in negligence and/or product liability actions involving prescription drugs, premised on the drug manufacturer’s failure to warn. (See Carlsen v. Javurek (8th Cir. 1975), 526 F.2d 202; Hill v. Squibb & Sons, E.R. (1979), 181 Mont. 199, 592 P.2d 1383; Dion v. Graduate Hospital of University of Pennsylvania (1987), 360 Pa. Super. 416, 520 A.2d 876; Upjohn Company v. MacMurdo (Fla. 1990), 562 So. 2d 680.) These courts have found that such a requirement is the logical extension of the fact that a prescription drug manufacturer’s duty to warn is directed to the prescribing physician. For that reason, only a physician or someone with specialized knowledge would be qualified to determine whether the warning was inadequate. (See Hill v. Squibb & Sons, E.R., 181 Mont. at 206, 592 P.2d at 1388.) These courts have also held that requiring expert testimony in failure-to-warn cases involving prescription drugs is analogous to the expert testimony requirement in medical malpractice actions.

We observe that in Illinois it has already been determined that when dealing with prescription drugs, where the warning is being communicated to a physician who acts as a learned intermediary, the adequacy of the warning must be judged by whether it sufficiently apprises the prescribing physician of the risk associated with the use of the drug. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387; Mohr v. G.D. Searle & Co. (1979), 72 Ill. App. 3d 540, 390 N.E.2d 1214.) It is also necessary in Illinois to present expert testimony in medical malpractice actions. (Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867; Walski v. Tiesenga (1978), 72 Ill. 2d 249, 256, 381 N.E.2d 279.) Based upon this established Illinois law, we now adopt the rationale of the courts in the other jurisdictions cited above and hereby hold that, by logical extension, expert testimony shall be necessary and proper in a case, such as the one at bar, where a drug manufacturer’s liability for a prescription drug is based upon its failure to provide adequate warnings. We note, however, that our decision, as in the cases cited above, is limited to those instances where the inadequacy of the warning is not so obvious that a lay person could not readily understand the insufficiency of the warning. (See Dion v. Graduate Hospital of University of Pennsylvania, 360 Pa. Super, at 426, 520 A.2d at 881 (expert testimony requirement limited to those cases in which the meaning of the warning eludes the comprehension of the ordinary lay person).) Consequently, we must now consider whether expert testimony was required in the present case or whether the alleged failure to warn was of a type that would allow a jury to reach an intelligent conclusion about the adequacy of the warning without the aid of an expert’s specialized knowledge.

In the present case, plaintiff amended its complaint a number of times. However, with respect to the action against Upjohn, the theories of recovery that were ultimately submitted to the jury were (1) that Upjohn was negligent in the marketing and selling of Prostin because (a) Upjohn failed to inform physicians that cardiac arrest was associated with the use of Prostin, and (b) Upjohn failed to inform physicians that possible adverse reactions were not transient; and (2) that Prostin, at the time it left Upjohn’s control, was in an unreasonably dangerous condition in that (a) its product labeling insert did not warn physicians that cardiac arrest was associated with the use of Prostin, (b) the product insert informed physicians that adverse reactions were transient, (c) the therapeutic profile did not warn physicians that cardiac arrest was associated with the use of Prostin, and (d) the therapeutic profile informed physicians that adverse reactions were transient.

The jury was also instructed that it could consider whether Upjohn violated any statute, regulation or ordinance when deciding whether it was negligent and/or manufactured an unreasonably dangerous product. The statute being referred to, and which was quoted in pertinent part in the instructions to the jury, was entitled “Misbranded drugs and devices.” (21 U.S.C. §§352(a), (f), (j), (n) (1988).) The statute provides that a drug would be considered misbranded if its labeling was found to be false or misleading or if it failed to contain “adequate directions for use.” The regulation referred to and quoted in the jury instructions indicates that the labeling of a drug or device would be deemed misleading if it failed to reveal facts that were “material in light of other representations made *** or with respect to consequences which may result from use.” The regulation also indicates that changes in labeling, advertising or warnings concerning a drug’s contraindication or side effects should be “placed into effect at the earliest possible time.” 21 C.F.R. §§1.3(a)(1), (a)(2), 314.8(a), (b),(d),(e),(l) (1990).

At trial plaintiff attempted to show that • cardiac arrest and/or death were possible side effects associated with the drug Prostin, that Upjohn was aware or should have been aware of the association between cardiac arrest and the use of its drug Prostin, but that Upjohn failed to include this possible side effect in its package insert, making the drug unreasonably unsafe or “defective.” To this end, plaintiff presented testimony and other evidence that prior to 1978 there were a number of cases known to Upjohn where cardiac arrest and/or death had occurred during second-trimester abortions in which the drug Prostin had been utilized.

Upjohn, however, disputed the contention that its knowledge that instances of cardiac arrest had occurred in correlation with the use of Prostin was equivalent to knowledge that cardiac arrest was a “side effect” of Prostin so that it was obligated to list it as an adverse reaction in its package insert. Upjohn also argued that the omission of the term “cardiac arrest” from the list of adverse reactions in the package insert did not make the warning ineffective or inadequate.

When a plaintiff attempts to prove that a drug manufacturer failed to adequately warn, he must first demonstrate that there was a duty to warn. (Mahr v. G.D. Searle & Co. (1979), 72 Ill. App. 3d 540, 390 N.E.2d 1214.) Thus, in this case it was plaintiff’s initial burden to show that cardiac arrest was, in fact, a reaction caused by the use of the drug Prostin. (See Mahr, 72 Ill. App. 3d at 561.) Additionally, following such a showing, plaintiff was required to plead and prove that Upjohn knew or should have known that cardiac arrest was a possible reaction caused by Prostin, but failed to warn of that fact. (Woodill v. Parke Davis & Co. (1980), 79 Ill. 2d 26, 402 N.E.2d 194.) Finally, plaintiff was required to show that the omission of such information made the warning inadequate and the drug “defective” and that this defect was the proximate cause of plaintiff’s injuries. Of course, it should be recalled that because the case involves prescription drugs where the warning is being communicated to a physician who acts as a learned intermediary, the duty to warn is directed to physicians and the adequacy of the warning must be judged by whether it sufficiently apprises physicians of the risks associated with the use of the drug. Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387; Mahr v. G.D. Searle & Co. (1979), 72 Ill. App. 3d 540, 390 N.E.2d 1214.

This court finds that the question of whether Upjohn’s knowledge of reported cases of cardiac arrest was tantamount to knowledge of an “association” between the drug and cardiac arrest which obligated it to include cardiac arrest as a possible side effect was a complex question which required expert testimony. To the extent that Dr. Ischler, an employee of Upjohn, was an expert on this subject, his testimony failed to establish Upjohn’s breach of duty. Dr. Ischler’s testimony indicated that there was no magic formula used for deciding when an adverse reaction must be included in a warning. Dr. Ischler also testified that deciding what information concerning reactions to a drug should be reported depends on a “medical interpretation of the events.” Even though Upjohn “could have” included cardiac arrest in its warning, this is not the same as saying that Upjohn breached its duty because it omitted cardiac arrest from the list of reactions.

Both Dr. Lesch, a cardiologist presented by Upjohn, and Dr. King, an obstetrician/gynecologist who testified on behalf of Dr. Barton, seemed to indicate that the evidence regarding Moran, as well as the drug experience reports and other evidence admitted at trial with regard to Prostin, might indicate that cardiac arrest was not, itself, the adverse reaction as much as the result of other adverse reactions such as vomiting, bronchospasm, convulsion or heart block, which were listed by Upjohn as adverse reactions associated with the drug. Also, there was evidence that, despite the fact that cardiac arrest occurred after the administration of Prostin, the presence of preexisting conditions in some of the patients who experienced cardiac arrest had to be taken into consideration since they could have been implicated as the causal factor in bringing about the cardiac arrest. In any event, it seems clear that the link between Prostin and cardiac arrest was not so apparent that expert testimony was not necessary to establish that a duty was imposed upon Upjohn to include cardiac arrest in the warnings based upon its knowledge that a small number of cardiac arrests had occurred in conjunction with the use of Prostin.

We realize that plaintiff introduced the 1981 insert, which had been amended to include information concerning the incidence of cardiac arrest, to establish the link between Prostin and cardiac arrest. However, we find this, too, was error. Although the question of whether post-occurrence warnings are admissible in failure to warn product liability cases involving prescription drugs is one of first impression in this State, we find persuasive other authorities which have contemplated the matter. (Werner v. Upjohn Co. (4th Cir. 1980), 628 F.2d 848; DeLuryea v. Winthrop Laboratories, A Division of Sterling Drug, Inc. (8th Cir. 1983), 697 F.2d 222; Smith v. E.R. Squibb & Son (1976), 69 Mich. App. 375, 245 N.W.2d 52, aff’d (1979), 405 Mich. 79, 273 N.W.2d 476.) These courts rejected the notion that post-occurrence warnings were admissible, finding them to be inappropriate. We agree.

In this case the salient question was whether Upjohn knew, prior to 1978, that cardiac arrest was associated with the use of the drug Prostin. Consequently, what Upjohn knew or included in its warnings after 1978 was irrelevant and only served to confuse and prejudice the jury against Upjohn. See, e.g., Gaenzele v. B.E. Wallace Products Corp. (1976), 39 Ill. App. 3d 93, 350 N.E.2d 371.

Finally, even if we were to assume that the evidence that was presented at trial was sufficient to advise the typical lay person that there existed a correlation between the drug Prostin and cardiac arrest sufficient to impose upon Upjohn a duty to warn, there is still the question of whether Upjohn abrogated its duty, i.e., whether it was enough for plaintiff to present evidence that Upjohn did not inform physicians, via the product insert or other means, that cardiac arrest was a possible side effect of the use of the drug Prostin. This question, too, required expert testimony since we believe that the real issue was not whether the term “cardiac arrest” was listed among the side effects, but rather, whether the package insert and other materials designed to warn physicians of the possible risks associated with the drug were adequate to advise a physician of the potential dangers that were inherent in the use of the product, despite the fact that cardiac arrest was not listed specifically as a possible side effect of the drug.

In the 1976 package insert included with the drug Prostin, the following information was provided:

“INDICATIONS
Prostin F2 Alpha (dinoprost tromethamine) is indicated for terminating second trimester pregnancy by the intra-amniotic administration of the drug.
In a group of 229 patients, using the recommended dosage, 86.0% aborted completed, 12.2% incompletely and 1.8% failed to abort.
CONTRAINDICATIONS
1. Hypersentivity [s-ic] to Prostin F2 aplha [sic] (dinoprost tromethamine).
2. Acute pelvic inflammatory disease.
WARNINGS
Prostin F2 alpha as with other potent oxytocic agents, should be used ONLY with strict adherence to recommended dosages, by medically trained personnel in hospital surroundings which provide immediately-available intensive care and acute surgical facilities.
Evidence from some animal studies has suggested that certain prostiglandins may have some teratogenic potential. Therefore, any failed pregnancy termination with Prostin F2 alpha should be completed by some other means.
ADVERSE REACTIONS
The most frequent adverse reaction observed with the use of Prostin F2 alpha (dinoprost tromethamine) for abortion are related to its contractile effect to smooth muscle.
In the entire group of patients studied, approximately one-half experienced vomiting, one-quarter some nausea, and about one-fifth diarrhea. Other adverse effects, occurring from 2.7% to 0.1%, in decreasing order of frequency include:
Pain (other than uterine) Parathesia
Unspecified Unspecified
Epigastric of leg
Substernal, chest Hypertension
Leg Hyperventilation
Shoulder Breast tenderness
Brachycardia Burning sensation
Headache In breast
Flushing In eye
Backache Chest constriction
Dizziness Urine retention
Dyspnea Uterine rupture
Posterior cervical perforations Anxiety Chills Bronchospasm
Endometritis Rales in chest
Diaphoresis Diplopia
Coughing Drowsiness
Hot flash Dysuria
Wheezing Hematuria
Convulsions Hiccough
Grand mal Malaise
Possible epilitiform Polydipsia
Vasomotor symptoms
Vasovaginal symptoms
2nd degree heart block.”

Under the “Precautions” section it also stated that “in patients with a history of asthma, glaucoma, hypertension, cardiovascular disease or past history of epilepsy, Prostin F2 aplha [sic] should be given with caution.”

As noted earlier, evidence at trial indicated that cardiac arrest could have resulted from several of the side effects already listed in the package insert. Furthermore, it seems clear that the meaning and medical implications of several of the listed adverse reactions is outside the knowledge of the ordinary lay person. For this reason it was necessary to submit expert medical testimony to establish the inadequacy of the warning.

In light of the fact that plaintiff in this case failed to present expert testimony to establish the inadequacy of these warnings and, moreover, that experts provided by Upjohn and others, i.e., Dr. Gianopoulos and Dr. King, testified that the warnings provided in the 1978 package insert for Prostin adequately warned physicians of the known risks associated with the drug Prostin, we find that plaintiff failed to prove its case against Upjohn and that a directed verdict or judgment notwithstanding the verdict should have been granted to Upjohn.

We disagree with plaintiff’s position that the Federal statutes and regulations established Upjohn’s duty and its violation of that duty. The Federal statutes presented at trial and included in the jury instructions for consideration were not a substitute for expert testimony. The statutes merely set forth, in general, a drug manufacturer’s duty under the law. However, to establish a violation of that duty, expert testimony was required to define the terms and explain the manner in which they were to be applied. A lay person would be unable to determine, for example, whether a drug was “misbranded” unless expert testimony was provided. Without expert testimony a decision would be conjecture. Furthermore, the typical juror would be unqualified to determine, without the aid of expert testimony, whether the failure to include “cardiac arrest” was a “material misrepresentation,” as defined by the statute, which made the warnings false, misleading or inadequate to direct the drug’s usage.

Based upon our decision to reverse the judgment against Upjohn, we find it unnecessary to address the other issues raised in Upjohn’s appeal or plaintiff’s cross-appeal, in which plaintiff argued that it was error for the trial court to have directed a verdict in Upjohn’s favor on the issue of punitive damages. This court’s finding that there was insufficient evidence to prove that Upjohn’s failure to include cardiac arrest in the drug warning constituted a.failure to warn would also preclude a finding that its failure to include cardiac arrest in the warning constituted wanton and willful misconduct. Therefore, we affirm the trial court’s ruling on the punitive damages issue and now turn our attention to the appeals brought by Dr. Barton and IMMC.

DR. BARTON’S APPEAL

Although Dr. Barton raises a number of issues in his appeal, essentially, he questions the qualifications of the expert used by plaintiff to establish the applicable standard of care, the sufficiency of the evidence indicating that plaintiff’s injury was proximately caused by his conduct, and a number of evidentiary rulings of the trial court which could have affected the damage award. We shall first address the issue concerning the expert testimony presented by plaintiff.

It is undisputed by the parties that, in a medical malpractice action, it is the plaintiff’s duty to establish the proper standard of care to be applied to a defendant-doctor’s conduct, a breach of that standard, and a resulting injury proximately caused by the breach of care. (Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867.) Additionally, unless the alleged negligence is so grossly apparent or within the common knowledge of a lay person, expert testimony is required to establish the standard of care and its breach. (Novey v. Kishwaukee Community Health Services Center (1988), 176 Ill. App. 3d 674, 531 N.E.2d 427.) When an expert is offered to establish the applicable standard of care and breach, a two-part test is used to determine the admissibility of the expert testimony. (Bartimus v. Paxton Community Hospital (1983), 120 Ill. App. 3d 1060, 458 N.E.2d 1072.) First, it must be shown that the expert is licensed in the same “school of medicine” to which the defendant-doctor belongs. (Dolan v. Galluzzo (1979), 77 Ill. 2d 279, 396 N.E.2d 13; Witherell v. Weimer (1986), 148 Ill. App. 3d 32, 499 N.E.2d 46.) Secondly, the expert must demonstrate that he is otherwise qualified to give expert testimony on the case.

As stated in Novey, the “school of medicine” doctrine dictates that “the expert who establishes the practitioner’s deviation from the pertinent standard of care must be both a licensed member of the school of medicine about which he opines and familiar with the ordinary methods, procedures, and treatments of the practitioners in the actual or similar community unless certain uniform standards apply regardless of either locality or available conditions or facilities.” (Novey, 176 Ill. App. 3d at 678.) In this case, plaintiff’s expert, Dr. Mathews, was licensed to practice medicine in the State of Illinois and employed as the director of emergency services at Northwestern Memorial Hospital. He testified that he was board certified in internal medicine and emergency medicine. It seems clear, therefore, that Dr. Mathews is licensed in the same “school of medicine” as Dr. Barton and that the first prong of the test for admission of expert testimony was satisfied.

However, it is the second prong of the test that presents problems for this court. Dr. Mathews testified that he was not an obstetrician or gynecologist and that his specialty was emergency medicine. Although he had testified as an expert in several cases, he stated that those cases involved the assessment and response to acute problems, such as would be seen in the emergency room. He had never worked in an obstetrical or gynecological ward, had attended patients delivering babies “on occasion,” but apparently had never been involved in pregnancy-interruption procedures. He had never used the drug Prostin, had never seen it used and never observed the reactions of a patient receiving the drug. In fact, he had never had any experience with the drug in any manner and had not even read the insert and profile for the drug until he was asked to testify in the case. For these reasons this court finds that Dr. Mathews was not competent to testify on the standard of care to be applied to Dr. Barton.

We realize, as plaintiff argues, that Dr. Mathews’ criticism of Dr. Barton centered around his assessment of his patient and not his administration of any gynecological procedure. However, Dr. Barton’s assessment of his patient should not be taken out of context of the setting in which it was made since the issue is whether he deviated from the accepted or customary medical standards at the time and place that the event occurred. Dr. Mathews was not qualified to give an opinion on this since he could not know what was customary practice for someone in Dr. Barton’s position.

As stated in Stevenson v. Nauton (1979), 71 Ill. App. 3d 831, 390 N.E.2d 53, to establish a prima facie case requires more than the mere presentation of testimony from another physician who would have acted differently. It requires testimony that the doctor deviated from established procedures. Dr. Mathews, whose experience was in the delivery of emergency care to acutely ill patients, may have reacted to the vital signs and symptoms of the plaintiff here in a distinctively different manner than the manner in which an obstetrician/gynecologist performing second-trimester pregnancy interruptions would have reacted.

Consequently, we find that the plaintiff failed to present sufficient expert testimony to establish the standard of care and the breach of that standard, and so we reverse the judgment entered against Dr. Barton.

ILLINOIS MASONIC MEDICAL CENTER

Initially, it should be noted that plaintiff’s negligence action against IMMC was based on (1) the negligent conduct of Nurse Ping and (2) the medical malpractice of Dr. Barton, who was alleged to be an employee of the hospital. A general verdict was entered against all defendants and so it is impossible to distinguish on what basis the jury held IMMC responsible for plaintiff’s injuries. Because of this and the fact that this court has already reversed the judgment against Dr. Barton, IMMC is entitled, at the very least, to a new trial. However, we must determine whether IMMC has presented any issues to this court which would warrant reversal of the judgment entered against it.

The determinative issue here is whether there was sufficient evidence presented at trial of the negligence of IMMC through its agent, Nurse Ping. IMMC claims that there was not. We agree.

In negligence actions of this type it is the plaintiff’s duty to establish the standard of care that the hospital is required to meet, the deviation from that standard of care, and the manner in which the deviation resulted in harm to the plaintiff. (Mielke v. Condell Memorial Hospital (1984), 124 Ill. App. 3d 42, 463 N.E.2d 216.) The standard of care applicable to a hospital may be proven “ ‘via a number of evidentiary sources’ ” (Mielke, 124 Ill. App. 3d at 49, quoting Greenberg v. Michael Reese Hospital (1980), 83 Ill. 2d 282, 294, 415 N.E.2d 390), including expert testimony.

In this case plaintiff attempted to show, and the jury was instructed, that IMMC was negligent because: (1) its nursing personnel failed to obtain the presence of a physician from 4:40 to 4:55 p.m., and (2) its nursing personnel failed to “appreciate the existence of an emergency represented by the events described up to and including [Moran’s] failure to improve with oxygen.”

Plaintiff presented its expert, Dr. Mathews, to establish the standard of care and the deviation from that standard. However, a review of his testimony reveals that Dr. Mathews did not conclusively establish the applicable standard of care, nor did he establish Nurse Ping’s deviation from that standard.

At trial plaintiff’s attorney asked Dr. Mathews:

“Q. Doctor, based upon this record and the condition of the patient, do you— of what significance is it to you, if any, in formulating your opinions regarding Nurse Ping that a physician was not present until 4:55?”

Doctor Mathews responded:

“A. You know, if it was — let’s—if it was 4:45, I wouldn’t be concerned because I think that’s a reasonable response for the nurse to what was done at 4:40.
It seemed to me, however, that that was — and it is my opinion, that that was one of the major parts of what her responsibility here.
I believe we discussed the two things I thought were critical actions here. One was to take some emergency steps to relieve this woman’s problem, which was done in the form of, at least, some oxygen was started. And secondly, to contact a physician for help.”

However, upon cross-examination, it was learned that Dr. Mathews had not read Nurse Ping’s trial testimony and he was not able to determine from the record what Moran’s condition was between 4:45 and 4:55 p.m. In fact, he admitted that it was impossible to tell from the record when things actually happened because the record was not written simultaneously with the events, but rather was a retrospective account. For this reason it was difficult to determine at what point Moran’s condition worsened to the point that intervention by a doctor should have been sought by Nurse Ping.

Dr. Mathews also testified that he would expect a nurse to use her past experience when exercising her judgment in deciding when an emergency existed and when it was necessary to call for a doctor or emergency assistance. Furthermore, he admitted that he was unfamiliar with the drug Prostin and the normal reactions to the drug which were typically observed by nurses and doctors working with the drug on a regular basis. For this reason, this court believes that Dr. Mathews was not qualified to establish and did not establish the standard of care that was applicable to Nurse Ping or her deviation from that standard.

By the same token, Dr. Gianopoulos, a practicing obstetrician and gynecologist, as well as a professor in obstetrics at Loyola University Medical Center, testified that when looking at the entire picture rather than isolated incidents, Nurse Ping acted appropriately and within the standard of care. The same opinion was expressed by Dr. King, an obstetrician and gynecologist who taught at Johns Hopkins School Of Medicine and had extensive experience with Prostin. He stated that, based upon his clinical experience with the drug Prostin, the signs and symptoms observed by Nurse Ping between the time of the instillation and the cardiac arrest were “characteristically thought of in that era of being transitory in nature.” In fact all of the experts, even Dr. Mathews, admitted that cardiac arrest can occur without warning and without negligence on the part of the persons attending the patient.

Viewing all of the evidence, we conclude that the manifest weight of the evidence did not support the finding that Nurse Ping was negligent and so we reverse the judgment entered against IMMC.

For all the reasons stated above, the judgment entered in favor of the plaintiff and against the defendants is reversed.

Reversed.

GORDON and McNULTY, JJ., concur.

      Trostin was approved by the FDA and placed on the market in 1973. After obtaining FDA approval Prostin was tested in clinical trials with over 7,300 patients, none of whom experienced a cardiac arrest.
      At trial plaintiff presented evidence that in May 1976 a paper was presented at the 24th Annual Meeting of the College of Obstetricians and Gynecologists wherein four incidents of cardiac arrest and death were indicated to be “associated” with Prostin. However, the paper also indicated that Prostin “may have had only tangential association with the chain of events leading to any of the deaths.” The total number of instances of cardiac arrest which may have occurred in conjunction with the use of Prostin between 1973 and 1978 is unclear. It is also unclear whether Upjohn was made aware, either through doctor experience reports or other communications, of every instance of cardiac arrest which occurred. However, from the evidence at trial it appears that Upjohn was aware of as many as nine instances where cardiac arrest and/or death occurred during second-trimester abortions in which Prostin was used.


author: JUSTICE EGAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALFRED BEAMON et al., Defendants-Appellants.
    First District (6th Division)
    Nos. 1—88—0995, 1—88—2669 cons.
    Opinion filed April 26, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Timothy J. Deeming, Assistant Public Defender, of counsel), for appellant Alfred Beamon.
    Michael J. Pelletier and Maria Harrigan, both of State Appellate Defender’s Office, of Chicago, for appellant Quinton Moore.

      John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Gael O’Brien, and Kenneth W. Goff, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

The defendants, Alfred Beamon and Quinton Moore, were tried together by separate juries. Both were convicted of murder, residential burglary and armed violence and sentenced to 80 years’ imprisonment.

Both defendants contend that the judge erred in denying their motions to suppress their statements, that the State made prejudicial arguments to the jury and that their sentences were excessive. We have determined that no reversible error occurred during the State’s argument and that the sentences were not excessive. We have also determined that this case must be remanded for a new hearing on the defendants’ motions to suppress their statements.

William Brown, the great-grandson of the deceased, Robert Moody, lived with Moody in a basement apartment before December 1986. His mother, Sandra Jones, lived with his sister, Kiesha Merritt, in the ground-floor apartment. The defendants were neighborhood friends of Brown and had been in Moody’s apartment before. In November, Brown told the defendants that he was moving out of Moody’s apartment to live with his grandmother.

On December 8, 1986, Sandra Jones received two phone calls from her grandfather. He said that both defendants called looking for Brown. Sandra then called Brown, who came home and stayed with the deceased that night. The next morning he tried to call the defendants, but neither was home. He then tried to find them in the neighborhood.

On the evening of December 17, Sandra Jones cooked dinner for her grandfather, who was 76 years old. He was well, and his apartment was in order. On the following morning, Kiesha Merritt went downstairs to her grandfather’s apartment. She found him dead, lying on the floor of his living room. Sandra called for an ambulance. Before the paramedics arrived Sandra searched for the deceased’s wallet to get his medical card, but she could not find it.

The police arrived. There was a rubber hose around the deceased’s neck and puncture wounds on his body; three knives were discovered nearby. A bent knife was on the floor, another on a chair, and another in a bowl of liquid. Blood was discovered on the knife found on the floor and the one on the chair. The bedroom the deceased slept in had been ransacked. His personal telephone directory was lying in his drawer with the “B” and “M” pages ripped out. The defendants’ numbers had been in the directory but were no longer there. Brown found the deceased’s empty wallet under a mattress.

By stipulation to the testimony of the medical examiner, it was established that death was caused by strangulation and that “multiple stab wounds” were a significant factor contributing to the cause of death.

The defendants were arrested and subsequently confessed. Their confessions established the following: On December 18, they met at Beamon’s house at approximately 8:15 a.m. After discussing their lack of money, they decided to go to the deceased’s apartment to try to get some money from him. They had been at his apartment on several occasions and were aware that he lived alone. They arrived at the deceased’s home, and Moore rang the bell. The deceased let them in, and the three men talked and watched television. After sitting for awhile, the deceased got up and walked to the back door of his apartment. Once the deceased left the room, Moore went to the dresser and attempted to take some money out of the deceased’s wallet. As Moore was attempting to take the money, the deceased began walking back into the room. Moore attempted to conceal his actions, but the deceased had seen him. He accused the defendants of trying to steal his money. Moore then grabbed the deceased from behind and put him in a headlock. Moore began choking the deceased, and the two fell onto the bed. At this point the defendants’ accounts differed.

Moore said that after he and the deceased fell onto the bed, Beamon stabbed the deceased with a knife. The knife bent, so Moore went to the kitchen to get another knife and returned to further punch and stab the deceased. Moore then went to the bathroom and returned with a rubber enema hose. He wrapped the hose around the deceased’s neck, gave one end to Beamon and held on to the other end. Moore then took approximately $65 from the deceased’s wallet, and they left.

Beamon said that Moore choked the deceased for approximately 15 minutes, during which time he told Beamon to act as a look-out. After 15 minutes, Moore released his lock on the deceased’s neck, and the deceased fell to the floor. Beamon then checked the deceased’s pulse; he told Moore that he felt a pulse; Moore grabbed the wallet, and they left.

After running from the apartment, the defendants went to a local liquor store where they used the stolen money to purchase a six-pack of beer and a half-pint of brandy. They then went to Beamon's home to watch television and drink the alcohol.

We will first address the defendants’ claim that prosecutorial misconduct requires a new trial. Before trial Beamon made an oral motion in limine to bar any reference to the fact that Beamon had been given a polygraph test. The prosecutor told the judge that he had instructed the police officer not to mention the polygraph test even if the defense lawyers asked questions “relative to that area.” During rebuttal closing argument, the prosecutor did inform the jury that Beamon had taken a polygraph examination. It is Moore, not Beamon, who contends that reference to Beamon’s polygraph test prejudiced him. It is the State’s position that the statement in rebuttal was invited by the argument of Moore’s attorney.

An analysis of the issue appropriately begins with the following exchange during the closing argument of Moore’s attorney:

“[DEFENSE ATTORNEY]: I want you to ask yourselves, ladies and gentlemen, I’m going to start now and I’m going to talk about what some of the reasons, doubts in this case, and I want to ask yourselves, who I want my opponent, and I want him to answer to you. Why was Mr. Moore treated differently, why was Mr. Moore treated differently from Beamon. Why is that, as you heard when Beamon—
[ASSISTANT STATE’S ATTORNEY]: Judge, at this time I am going to interrupt because we should have a side bar here because there has been rulings in this courtroom what we can’t bring into [sic].
THE COURT: I haven’t heard what he said. [Emphasis added.]
* * *
[DEFENSE ATTORNEY]: They didn’t take down one note of one thing that [Moore] said for the fourteen hours he was in custody before he supposedly gave that statement. Why would they treat him different?
* * *
What did he say he did with that supposed statement that he took from my client, he never recorded it, he never even made a note about that supposed statement he took from my client.
Are you going to buy that, ladies and gentlemen, and if so, why, why are they treating my client different. [The police officer] says that’s important in a homicide investigation, why isn’t it important when it comes to Mr. Moore also, they haven’t framed their evidence yet, ladies and gentlemen.”

The assistant State’s Attorney began his rebuttal argument by referring to Moore’s attorney’s argument that Moore was being “framed.” Later the following occurred:

“[ASSISTANT STATE’S ATTORNEY]: [Moore] goes to the police office, to the police station, does it sound like something he wouldn’t do? He’s telling them he wasn’t there, he didn’t do it the first couple of times and he wants to know why is this man treated differently than Mr. Beamon. Mr. Beamon is taken down to 11th and State because he says he’ll go down there, there is an investigation that’s going on.
[DEFENSE ATTORNEY]: Objection, your Honor.
THE COURT: Counsel, you opened it up.
[ASSISTANT STATE’S ATTORNEY]: He’s down there taking a lie detector test.
[DEFENSE ATTORNEY]: Ask for a mistrial.
[ASSISTANT STATE’S ATTORNEY]: That’s the difference that’s being done.
THE COURT: Proceed, counsel.
[ASSISTANT STATE’S ATTORNEY]: That’s what’s being done to Mr. Beamon, not his client, Mr. Beamon.
THE COURT: You opened it up, you can’t do that, proceed.”

Moore argues that his attorney questioned the fact that Beamon was treated differently from Moore because the police took notes on Beamon’s oral statements and not Moore’s. Consequently, he maintains, the prosecutor’s remarks were not invited.

Although the defendant’s argument is not without some basis, we believe the remarks of Moore’s attorney were broad enough to justify the prosecutor’s response. Moreover, during Moore’s attorney’s closing argument the prosecutor placed Moore’s attorney on notice that he was entering an area that had been proscribed. He insisted on forging ahead without requesting any clarification by the judge. Under all the circumstances, he may not now complain. (See People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180.) In addition, we have difficulty finding any prejudice to Moore in the remarks. Moore’s claim that the jury might conclude that Beamon was cooperative, but Moore was not, is most tenuous.

Moore also maintains that error occurred during his attorney’s following closing argument:

“[DEFENSE ATTORNEY]: This oral invitation, an invitation he couldn’t refuse, they don’t want you to believe they handcuffed him, they told you they admitted to you, that officers stated to you I didn’t have any evidence to arrest Quinton Moore when I invited him down to the station, he wasn’t there, and if they arrested him and brought him down to the station and got some evidence, it was wrongfully obtained, ladies and gentlemen, and that’s why they can’t admit to that.
[ASSISTANT STATE’S ATTORNEY]: Objection, Judge, you’re the person to determine whether or not a bad arrest has been made, and that’s been heard already and counsel knows better.
THE COURT: Let’s go, counsel.” (Emphasis added.)

We first judge that the defendant has waived this point because he did not object to the remark; second, we again judge that the prosecutor’s remarks were invited by the defendant’s attorney’s argument that the evidence was wrongfully obtained. Last, insofar as the jury was concerned, the objection was of such a technical nature that any possible error in the remark was harmless.

The two cases cited by the defendant are not in point. In Crane v. Kentucky (1986), 476 U.S. 683, 90 L. Ed. 2d 636, 106 S. Ct. 2142, the defendant was prevented from showing the manner in which his confession was secured. In this case, the defendants were given every opportunity to introduce testimony describing the length of the defendants’ interrogation and the manner in which the interrogation was conducted. In People v. Carter (1979), 73 Ill. App. 3d 406, 392 N.E.2d 188, the prosecutor told the jury, “This court has ruled it was a proper procedure”; “this court has ruled that the procedure was constitutional”; and “the court has already ruled in pre-trial.” Later in rebuttal argument, the prosecutor insisted at length, over repeated objections, which were sustained, that the court had already ruled that the identification procedure was proper. The appellate court held that the prosecutor’s remarks were not invited. Factually, Carter is wide of the mark.

Beamon contends that reversible error occurred when the prosecutor said that the victim had “twenty-seven stab wounds” (by stipulation it was established that he had been stabbed twice) and that the police investigation revealed “a bent knife that wasn’t bent before.” Beamon points out that there was no evidence that the knife was not bent before the incident. We find no prejudicial error in those remarks. No objection was made to either of them. It is obvious that the prosecutor misspoke about the number of wounds, but Beamon’s lawyer later told the jury that the deceased had three knife wounds. The jury was instructed that the statements of counsel were not evidence. The independent evidence established that a bent knife was recovered. The prosecutor’s argument that the knife was bent because the defendant struck bone when he stabbed the deceased was a reasonable inference from the evidence.

Beamon had made a number of oral statements before he finally confessed. Those oral statements were not introduced by either the State or the defense. Beamon’s attorney made the following argument:

“And it’s mighty funny that of seven, at least seven conversations that we know of, they chose to introduce just one, think about it. Evidence is not always what you get, but you also have to look at what you don’t get and they have the burden of proof, not us, we don’t have to prove a thing.”

In response to that argument the prosecutor said this:

“Why don’t we bring in those other statements, [Beamon’s lawyer] knows there is [sic] rules of evidence, there is hearsay.”

Beamon now contends that that remark constituted reversible error. Again we disagree. Again we believe the remark was invited. Further, this remark also was of such a technical nature that we do not believe it would have had any effect on the jury.

The judge later explained that he ruled as he did because he construed Beamon’s attorney’s remarks to include statements from other witnesses. The prosecutor said that that was the reason for his objection. The judge offered to clarify his ruling to the jury; his offer was not accepted.

Before leaving this question we wish to make it clear that we do not agree with the State’s implied argument that the prosecution may never introduce a defendant’s exculpatory statement. Nor are we prepared to say that a defendant may never introduce his denials made before making an inculpatory statement. Such otherwise self-serving evidence would not be admissible to prove the truth of the statements but would be admissible on the question of whether his subsequent confession was voluntary.

The prosecutor told the jury that Beamon had lied to the police and that he told them things that did not “jive” with the evidence they had. Beamon contends that those arguments constituted prejudicial error. Again we do not agree. That argument was based on reasonable inferences from the evidence. A police officer testified that Beamon told him he had not been out of the house for several days, that he had had the flu, and that he had not seen Quinton Moore since the beginning of December or the end of November and that he had not been to the deceased’s apartment in several months. At that time the police officers told him what Moore had said. Beamon persisted in the story that he had already told. The prosecutor had the right to argue that the confession was true and that the exculpatory versions given by Beamon were false.

Beamon also refers us to other arguments of the State which, he contends, were inflammatory. We judge that no error occurred in the instances to which Beamon refers. They were all supported by the evidence. For these reasons, we conclude that the prosecutor’s closing arguments did not constitute prejudicial and reversible error.

Both defendants maintain that their sentences were excessive. Moore was 17 years old at the time of his arrest and a junior in high school. Beamon was 18 years old. Neither had any criminal record and neither was employed. The prosecutor pointed out that Beamon was eligible for the death penalty. Moore was not' eligible for the death penalty because he was under 18 years of age. The State asked that both be sentenced to terms of natural life without parole or to an extended term. Due to the brutal nature of the crime and the age of the victim, the defendants were eligible for an extended term of between 40 and 80 years. (Ill. Rev. Stat. 1985, ch. 38, pars. 1005—8— 2(a)(1), 1005—5—3.2(b)(2), (b)(4).) The defendants do not contend that they were not eligible for an extended term.

It would serve no purpose to discuss the many cases cited by the State affirming sentences (e.g., People v. Edens (1988), 174 Ill. App. 3d 1033, 529 N.E.2d 617; People v. Jones (1983), 119 Ill. App. 3d 615, 456 N.E.2d 926) and those cited by the defense reducing them (e.g., People v. Smith (1989), 178 Ill. App. 3d 976, 533 N.E.2d 1169; People v. Anderson (1985), 142 Ill. App. 3d 240, 488 N.E.2d 557). Suffice it to say that each case must be decided under its own facts. Of most importance is the rule that the primary responsibility for sentencing rests with the trial judge and that a reviewing court may interfere only when it is convinced that the judge abused his discretion. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) The test in reviewing the propriety of a sentence is not what we, as a reviewing court, would have done; the test is whether we can say that the trial judge abused his discretion. Contrary to the defendants’ arguments, we cannot say that the trial judge ignored all of the relevant factors in deciding punishment. He did point out that it was one of the worst cases he had had before him in his 19 years on the bench. No one can deny that the strangulation of a 76-year-old man in his own home in the course of a robbery is an exceptionally heinous crime. We conclude that we cannot say that the judge abused his discretion in this case.

We turn now to the defendants’ claims that they were illegally arrested and that their confessions resulted from their illegal arrests.

On December 19, 1986, at 8:30 a.m. five Chicago police detectives, William Tock, Edward Winstead, Patrick Flynn, James Kierse and Lawrence Ashe, all of whom testified, went to the home of the defendant Quinton Moore at 6401 South Eberhart. Tock, Winstead and Flynn had been asked for assistance by Kierse and Ashe, who wanted to talk to Quinton Moore about the murder of Robert Moody. Kierse and Ashe told the others that they also had a warrant for Quinton Moore’s brother Gershon for attempted murder. He was supposedly armed and dangerous. Upon arriving at the Moore house, Tock and Winstead went to the rear, Flynn went to the side and Kierse and Ashe went to the front door. Winstead was instructed to arrest anyone who tried to leave the building. Tock next saw Kierse when Moore’s mother opened the back door and motioned the officers to come in. Once inside, Tock saw other officers enter Quinton Moore’s bedroom.

Edward Winstead testified that he entered the home and saw Quinton Moore lying in bed. He heard yelling and arguing going on between Mrs. Moore and the police. She said there could not be any warrant for her son Gershon because he was already in jail. Winstead went into the bedroom and was joined by Kierse. Winstead asked the defendant who he was and where Gershon Moore was. The defendant said that Gershon was in jail. Winstead looked under the bed and in the closet. Winstead asked Kierse if he needed anything else and, when Kierse said he did not, Winstead, Tock and Flynn left.

At 10 a.m. that same day, all five officers went to Beamon’s home at 6709 South Rhodes. Winstead testified that Ashe and Kierse again asked him and the others for assistance because they wanted “to go and try to pick up or at least talk to another defendant *** or another suspect in this incident.” When they arrived, Tock, Flynn and Winstead went to the rear, while Kierse and Ashe went to the front door. Kierse and Ashe went into the house and were there for only a few minutes when they left with Beamon.

James Kierse testified that he spoke with William Brown, who informed him that the word on the street was that the defendants, Beamon and Moore, had burglarized his grandfather’s apartment on a previous occasion. After the murder, when Kierse went through the deceased’s personal items, he noticed that the “B” and “M” pages were missing from an address book. Kierse was also informed that there was a warrant out for the arrest of Gershon Moore. When he learned this he contacted Winstead, Tock and Flynn and asked for their assistance. He told them that they had to talk to Quinton Moore and to see if Gershon Moore was at home. Upon arriving at the Moore house, Kierse knocked on the front door, and Moore’s mother answered. She let the detectives in and accompanied Kierse to the rear door. Kierse then unlocked the rear door and went into the bedroom where he saw the defendant. He told the defendant that they would like to talk to him about an incident that occurred at the deceased’s home. He asked Moore if he would accompany the police officers to the station, and “he agreed.” He could have elected to stay in the house if he chose. Kierse, Ashe and the defendant left the house together. The defendant was not advised of his rights, was not handcuffed, and no guns were ever drawn. The defendant was dressed when they found him, but he had to put on shoes and a jacket.

When they arrived at the Area 1 Detective Division at 51st and Wentworth, Moore was taken to an interview room. Ashe read him his rights and began questioning him. Kierse testified that Moore was free to go. After talking with him, Kierse and Ashe then left and went to Beamon’s house. Moore was left in the room at the detective area for about one hour and 45 minutes before the detectives returned. Moore had been told that the detectives would be back, but he was not told he was free to leave.

When they reached Beamon’s house, Tock, Winstead and Flynn were in the rear, and Kierse and Ashe went to the door which was on the side of the house. Beamon’s stepfather answered the door, and let Kierse and Ashe in. The stepfather then went upstairs and returned with Beamon. Kierse and Ashe told Beamon they wanted to interview him regarding an incident that happened at the deceased’s house. Beamon accompanied the officers back to the Area 1 Detective Division.

Once at the police station, Kierse advised Beamon of his constitutional rights and talked with him. After talking with Beamon, Kierse found a discrepancy between what he said and what Moore had said. Beamon said that he had been sick for several days with the flu and had no company for a couple of days. Moore had said, however, that he was over at Beamon’s the day before the 18th and had been drinking with Beamon. Kierse then asked Beamon to take a lie detector test, and Beamon agreed. Beamon was taken to 1121 South State Street, and Detective Pat Garritty administered a polygraph examination to Beamon. After approximately 30 minutes, Kierse took Beamon back to Area 1, but on the way, they stopped at Burger King to get some food for the defendants. This was the only food given to Moore all day. Upon returning to Area 1, Beamon was again placed in one interview room, while Moore was in another.

At about 4 p.m., Kierse again talked with Beamon. Beamon was again told his rights, and he then gave another inculpatory oral statement. (He had made his first inculpatory oral statement at 11th and State after he was told he had failed the polygraph test.) At approximately 6 p.m. Beamon was placed under arrest. He had never been told before that he could leave. Kierse and Ashe then returned to Moore, and Ashe read him his rights.

Detective Patrick Garritty testified that at approximately 2 p.m. on December 19, 1986, he conducted a polygraph test on Beamon. Beamon consented to the examination by signing a polygraph waiver form. After a 30- to 40-minute examination, Garritty informed Beamon that he had failed the test. At that point, Beamon said he would answer the questions truthfully. After Beamon gave a “true story,” Garritty informed Kierse and Ashe.

Lawrence Ashe testified that he, Kierse and Flynn identified themselves to Mrs. Moore, who answered the door. She allowed the detectives to enter, and Kierse and Flynn went with Mrs. Moore to open the rear door for Tock and Winstead. Ashe told Mrs. Moore that they were looking for her son, Gershon, because they had a warrant for his arrest. Mrs. Moore informed them that Gershon was in prison. Ashe first saw Quinton Moore coming out of his bedroom with Kierse. Ashe remembers Mrs. Moore being on the phone at some point, but she never asked the officers if they had a warrant. He testified that Mrs. Moore was told where they were taking her son. At the station, Moore was taken to an interview room where Ashe advised him of his constitutional rights. Ashe spoke to Moore for a brief period and then told him they would return.

Ashe went to Beamon's home with the other detectives. Shortly after they arrived, Beamon came down the stairs with his stepfather. Beamon accompanied the officers to the police station, and he was not handcuffed. He was placed in a lineup room at the station, where he was asked a few questions. He was read his constitutional rights before any questioning took place. After some time, Beamon agreed to take a lie detector test. He was taken to 1121 South State Street at about 1 p.m. and was given a lie detector test by Garritty.

They arrived back at the police station at about 4 p.m. Kierse read Beamon his rights again and talked to him more about his involvement in the Moody murder. Ashe went back to talk to Moore; he read Moore his rights; and Moore then gave his inculpatory statement. Ashe next contacted the felony review unit, and Assistant State’s Attorney Tom Bilyk arrived. Before questioning Moore, Bilyk again read him his constitutional rights. At about 10:30 a.m. a court reporter arrived and took Moore’s statement which was later signed by Moore. At 12:40 a.m., December 20, a court reporter statement by Beamon was prepared and at 2:45 a.m. Beamon signed it.

Beamon’s stepfather, Clarence Samuels, testified that when he opened the door three police officers “walked in on their own.” He did not try to stop them. He did not feel he could tell the officers to leave. The officers followed him to a bedroom, woke up Beamon, and ordered him to get dressed because then wanted him to answer some questions. The officers did not tell Beamon that he was under arrest. They handcuffed Beamon. They explained that they only wanted to question him for a couple of hours; it was necessary to handcuff him “to make sure he didn’t try to run off or anything.”

Sadie Samuel, Beamon’s mother, was at work when the police officers left her home with her son. After her husband told her that the police had picked her son up, she went to the police station at 51st and Wentworth between 3 and 3:30 in the afternoon. She was told by a police officer he was not there. She waited until 5, after a new shift came on duty. She was told at that time that he was “with the officers.” She left and returned about midnight because she had not heard from her son. An officer told her that her son was upstairs and that she could not see him. She left and returned with her daughter and her son’s girlfriend about 1:30 a.m. She was told he was still upstairs and that she would have to wait. She was able to see him at 4:30 that morning. His face was flushed and his eyes were all puffy; he looked like he had been crying.

Dorothy Moore testified that her son Gershon was in jail at the time the police came to her home. (Her mother had testified that Gershon had been in jail for two months.) She unlocked the padlock on the front door to push it open; one of the policeman pushed the door open and said, “What is your name?” When she said, “Dorothy Moore,” that officer and another one started to swear at her; then they pushed her back into the house against the wall. When other persons started coming in through the house, she asked them who they were. She said, “You don’t have a search warrant, you can’t come in my house.” One of the officers said, “We came here to pick up Gershon Moore and Quinton Moore on a strong armed robbery.” She said that they could not have come to pick up Gershon Moore because he was gone. One of the officers told her if she didn’t shut her mouth they were going to drag her off to jail.

Some of the officers went in her bedroom; one of them took her purse and dumped the contents on a table; another officer told her that he could do what he pleased and, if she didn’t shut up, he would drag her out of her house without any shoes on. At the time her son, Quinton, was in the bedroom sleeping. One of the officers kicked open the bedroom door. Another officer broke the glass in the back door off the kitchen. She was not permitted to walk around; one of the officers had “cornered” her in the kitchen. When the police were leaving with Quinton he told them to wait a minute, that his mother was all excited. One of the officers kept jerking on Quinton and told him to put his hand behind his back. He then handcuffed Quinton. When she asked where they were taking him, an officer told her it was none of her “damn business.” After they left she began calling around trying to find out where Quinton was. When she called 51st and Wentworth they said they didn’t know anything about him. She got there around 4:30 the following morning.

One officer poked Quinton and asked his name. When her son told him, “Quinton Moore,” the officer said, “This is the damn person here.” When Quinton got out of bed he had a sleepwear bottom on but no shoes or socks. (A picture taken of Moore at the station several hours later showed that he was not wearing socks.) The officer told Quinton he wanted to question him about something.

Quinton Moore testified that he was asleep and was awakened by the police officers, two of whom had guns out. They told him they were looking for “Alvin [sic]” Moore, and when he identified himself as Quinton Moore they said that they were going to take him instead. He left because the police officers took him. He was handcuffed with his hands behind his back. When they got to 51st and Wentworth, he was taken to a windowless room and handcuffed to a wall. They were gone between 30 minutes to 2 hours. Officers Kierse and Ashe came in and uncuffed him and took him into another room. When Kierse asked him what he knew about the murder, he told Kierse he did not know anything. Up to that point he had not been given Miranda warnings. After that conversation they put him back in the same room he had been in before and again handcuffed him to the wall. They left him there for about two hours. They again spoke to him but did not give him any Miranda warnings. He was placed back in another room for about one hour. They questioned him again for about 30 minutes. The door of the room was locked. Altogether he was questioned for about five or six hours. He was struck twice in the face by Kierse. He testified that Kierse told him that he would take him down somewhere by the lake, handcuff him to a tree and “beat the hell out” of him. He was not given any food. He did not eat anything that day. The assistant State’s Attorney was the first one to give him Miranda warnings.

The State did not call any rebuttal witnesses. However, all of the officers except one had previously testified that the defendants were not handcuffed when they left their homes. Winstead said he did not recall. Some of the officers had also testified that no guns were ever drawn. We interpret Kierse’s testimony to be the equivalent of a denial that he ever struck or threatened Moore.

In his ruling denying the motions to quash the arrests and suppress the statements, the judge expressly found that Quinton Moore was not a credible witness. He said that the police did not have probable cause to arrest the defendants when they went to their homes but that the police went to the defendants’ homes to question them. We construe his remarks to be a finding that Beamon and Moore were not under arrest when they left their homes and that they went with the police voluntarily to answer questions. It is the State’s position that the arrests of the defendants took place at 6 p.m., approximately 10 hours after the police and Moore left his home and eight hours after they left with Beamon.

The question whether the defendants’ consent to accompany the police officers was, in fact, voluntary or was the product of duress or coercion, expressed or implied, is to be determined by the totality of all the circumstances and is a matter which the State has the burden of proving. United States v. Mendenhall (1980), 446 U.S. 544, 64 L. Ed. 2d 497, 100 S. Ct. 1870.

Both sides have cited a number of cases on the question. We believe all of the State’s cases are distinguishable in varying degrees from the facts of this case. In People v. Gutknecht (1984), 121 Ill. App. 3d 839, 460 N.E.2d 60, and People v. Johnson (1989), 187 Ill. App. 3d 756, 544 N.E.2d 392, the appellate court held that the officers had probable cause to arrest. In People v. Clay (1984), 124 Ill. App. 3d 140, 463 N.E.2d 929, the defendant testified that he did not believe he was under arrest and that the police told him he was not under arrest. In People v. Gale (1979), 72 Ill. App. 3d 23, 390 N.E.2d 921, the defendant, in the presence of a group of people, was approached by a single police officer in a public park who asked him to come to the police station to discuss a motorcycle theft, which an informant had accused the defendant of committing. The defendant agreed to accompany the officer who said he would bring the defendant back to the park later. At the station, the officer confronted the defendant with the informer’s accusation, and the defendant confessed within 20 minutes after an initial denial. In People v. Miller (1980), 89 Ill. App. 3d 973, 412 N.E.2d 175, the police met the defendant at a parking lot and went to his apartment where he was questioned for one-half hour. The police asked the defendant to accompany them to the police station. The defendant told one police officer privately that he had some marijuana, and the officer agreed not to arrest him for possession. On the way to the station, the defendant began crying and confessed. In People v. Reed (1982), 104 Ill. App. 3d 331, 432 N.E.2d 979, three police officers went to the defendant’s apartment. The defendant’s girlfriend was present. She testified that the police officers asked the defendant to accompany them to the police station and that he agreed. At his request, she was permitted to accompany him. At one point in his own testimony, the defendant said he did not know the men were police officers when he went with them. We repeat that none of the State’s cases is factually apposite.

On the other hand, we judge that the defendants have cited cases which are strong authority for their position. The facts of this case are, in large measure, similar to those of People v. Avery (1989), 180 Ill. App. 3d 146, 534 N.E.2d 1296. In Avery the three defendants went with the police to the police station at different times. The age of one of them was 18; we surmise that the other defendants were of a similar age. They were left in separate interrogation rooms and were questioned several times. They were left alone for hours at a time. The police confronted one of the defendants with the version of the facts given by a second defendant which contradicted the version given by the first defendant. The appellate court reversed the finding of the trial judge that no arrest took place when the defendants were taken from their homes. The appellate court emphasized the fact that the defendants were not told they were free to leave and concluded that they could reasonably believe they could not leave, especially when each defendant was left in an interrogation room and simply told that the officers “would get back to him.” 180 Ill. App. 3d at 146.

In People v. Vega (1990), 203 Ill. App. 3d 33, 560 N.E.2d 983, this court reversed a finding that the defendant had not been arrested and had voluntarily accompanied the police. In doing so the court repeated that the “test is whether, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” (203 Ill. App. 3d at 41.) The court then repeated the relevant circumstances. It pointed out the defendant’s age and his absence of extensive experience with the criminal system; the fact that he was not questioned at all in his home; that he was not told that he could refuse to accompany the police; that he was not given the choice of arranging his own transportation to the station; that he was placed in an interrogation room at the station; and he was not told he was free to leave. All those circumstances exist in this case as do the- facts in Avery, the defendants were left alone in interrogation rooms and they were questioned intermittently.

Add to those facts the fact that both defendants were roused from their beds and there were five police officers in their homes, three of whom had been stationed outside initially and were instructed to arrest anyone who tried to leave. The State seeks to justify that show of force because of the alleged existence of a warrant for the arrest of Gershon Moore. That justification does not exist in the case of Beamon. In the case of Moore, it is conceded that a dispute arose between his mother and the police. There was “yelling and arguing.” The setting in both homes strongly militates in favor of an argument that a reasonable person would believe that he had no choice but to accompany the police officers.

According to Kierse and Ashe, Beamon made an inculpatory statement at 11th and State after failing the polygraph test. They were aware, therefore, at that point that Beamon had named Moore as his accomplice in the murder of Moody; and yet they did nothing to alert the other officers at 51st and Wentworth to insure that Moore not be permitted to leave. Unless he was already detained, we find that testimony unreasonable. We judge, therefore, that the manifest weight of the evidence establishes that the defendants were under arrest when they left their homes with the police officers. Further support for our holding exists in People v. Young (1990), 206 Ill. App. 3d 789, 564 N.E.2d 1254, People v. Gordon (1990), 198 Ill. App. 3d 791, 556 N.E.2d 573, and People v. Sturdivant (1981), 99 Ill. App. 3d 370, 425 N.E.2d 1046, in which this court reversed findings that arrests had not been made and that the defendants voluntarily accompanied the police. In Sturdivant, the court rejected, out of hand, the State’s implied argument that a defendant had “freely chose[n] to remain in the police station for approximately 9 hours.” 99 Ill. App. 3d at 372.

The defendants insist that there is no evidence attenuating the effect of the illegal arrest and the defendants’ subsequent confession and, therefore, that the defendants’ convictions must be reversed because there is insufficient evidence to convict in the absence of their confessions. The hearing on the admissibility of the confessions focused on the legality of the arrest. Scant, if any, consideration was given to the question of attenuation. In Vega and in Young, because the question of attenuation had not been considered, this court remanded for the trial judge’s determination of whether sufficient attenuation existed to purge the statements made by the defendants from the taint of their earlier seizures. We believe the reasoning of Vega and Young is sound. We therefore reverse the finding of the circuit court that the defendants were not arrested when they were taken from their homes; the cause is remanded for a hearing to determine whether there was sufficient attenuation to purge the defendants’ statements from the taint of the earlier arrests. If the court' finds such attenuation, it is directed to reinstate the judgment of conviction. If the court finds no such attenuation it is directed to suppress the statements and to conduct further proceedings consistent with the views expressed herein.

Cause remanded with directions.

RAKOWSKI, P.J., and McNAMARA, J., concur.