2014 IL App (3d) 120597
Opinion filed January 21, 2014
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2014
_____________________________________________________________________________
LEE ANN SHARBONO, ) Appeal from the Circuit Court
) of the 13th Judicial Circuit
Plaintiff-Appellant, ) La Salle County, Illinois
)
v. ) Appeal No. 3-12-0597
) Circuit No. 06-L-199
)
MARK HILBORN, M.D., ) Honorable
) Joseph P. Hettel,
Defendant-Appellee. ) Judge, Presiding.
_____________________________________________________________________________
JUSTICE CARTER delivered the judgment of the court, with opinion.
Justices McDade and Schmidt concurred in the judgment and opinion.
_____________________________________________________________________________
OPINION
¶1 Plaintiff, Lee Ann Sharbono, filed an action for medical negligence against defendant,
Dr. Mark Hilborn, a board-certified radiologist, alleging that defendant had failed to timely
diagnose her breast cancer. After a trial, the jury found for defendant and against plaintiff.
Plaintiff filed posttrial motions for judgment notwithstanding the verdict, for new trial, and
for rehearing, all of which the trial court denied. Plaintiff appeals, arguing that the trial court
erred in: (1) denying her posttrial motion for judgment notwithstanding the verdict or for new
trial; (2) allowing the defense to present a certain PowerPoint presentation as demonstrative
evidence during defendant's testimony at trial; (3) providing the jury with an erroneous
instruction on standard of care; and (4) instructing the jury on mitigation of damages. We
agree with defendant's second assertion and find that the error was reversible error.
Therefore, we reverse the trial court's judgment and remand this case for a new trial.
¶2 FACTS
¶3 In August 2006, plaintiff was diagnosed with breast cancer in her left breast, which had
spread to the nearby lymph nodes under her left arm. Plaintiff underwent extensive
treatment, including a modified radical mastectomy of her left breast, removal of several of
the lymph nodes in her left under arm area, and numerous rounds of chemotherapy and
radiation. Although plaintiff's cancer has been in remission now for several years, she still
suffers from lymphedema in her left arm as a result of the cancer surgery and from the
constant fear that her cancer will return.
¶4 The lawsuit in this case arose out of a diagnosis that was made by defendant in November
2004. Plaintiff, who was 39 years old at the time, initially went to see her primary care
doctor, Dr. Daisy Chacko, a family physician, because she was experiencing fatigue, weight
gain, and aches and pains. Dr. Chacko ordered a screening mammogram. Plaintiff had a
previous mammogram done in July 1998 when she was 32 years old and lived in Texas, and,
although plaintiff had what she described as hard ridges under her breasts, nothing abnormal
was found in the mammogram.
¶5 Defendant was the radiologist who interpreted the images from the tests of plaintiff's left
breast that were conducted in October and November 2004 (the November 2004 tests). In
the initial screening mammogram, defendant observed an abnormality or a lesion in
2
plaintiff's left breast that was not present in the 1998 mammogram and recommended that a
diagnostic mammogram be completed. The diagnostic mammogram also showed a lesion in
plaintiff's left breast, so an ultrasound was ordered. Following an evaluation of the
ultrasound images, defendant ultimately concluded that the lesion in plaintiff's left breast was
benign. No biopsy was ordered or recommended by defendant at that time.
¶6 In 2005, plaintiff went back to see Dr. Chacko, complaining of cramping in her left
breast. Dr. Chacko reassured plaintiff that the 2004 mammogram showed that everything
was fine and that there was nothing to worry about.
¶7 In May 2006, plaintiff returned to her family physician's office, complaining of cramping
in her left breast and pain in her shoulder, and requested that another mammogram be done.
The mammogram was not conducted, however, until August 2006, just prior to plaintiff's
forty-first birthday, because of a miscommunication between the hospital and the doctor's
office.
¶8 Defendant interpreted the August 2006 mammogram and, after evaluating the images,
recommended that plaintiff obtain another ultrasound of her left breast. The ultrasound
indicated that the lesion in plaintiff's left breast was likely malignant, and a biopsy was
ordered. All three procedures--the mammogram, the ultrasound, and the biopsy--were done
on the same day. The biopsy confirmed that plaintiff had breast cancer.
¶9 In December 2007, plaintiff brought the instant action against defendant and the hospital
for which defendant provided services, alleging, primarily, a negligent failure to timely
diagnose her breast cancer. The hospital was later dismissed from the instant action based
upon a settlement with plaintiff. The complaint against defendant was amended several
3
times over the following four years, and the case eventually proceeded to a jury trial in
November 2011.
¶ 10 The evidence presented at the trial can be briefly summarized as follows. Plaintiff
testified about her symptoms and her history of medical tests and procedures leading up to
the cancer diagnosis, including the 1998 mammogram, the 2004 tests, and the 2006 tests;
described the treatment that she received after the diagnosis of cancer was made; and
explained in detail the lasting lymphedema and other complications that she experienced as a
result of having to undergo the level of cancer treatment that was required. As for the results
of the November 2004 tests, plaintiff stated that she was personally told by defendant that
"everything was fine" and that "there was nothing there." In addition, according to plaintiff,
she was not provided with any specific follow-up recommendation by defendant, other than a
form letter that she later received from defendant's office or the hospital, which stated that
her results did not show any suspicious abnormalities and suggested that she start obtaining
annual mammograms at the age of 40, consistent with the recommendations of the American
Cancer Society. Plaintiff indicated that she complied with that recommendation by going to
see her doctor to schedule a mammogram when she was 40 years old. Plaintiff stated further
that had she known that there was an abnormality present in the images of her left breast, she
would have gotten a second opinion.
¶ 11 Dr. Michael Foley, a physician who was board-certified in diagnostic radiology, nuclear
medicine, and interventional radiology, provided testimony for plaintiff on the standard of
care as an expert witness. After describing his background and experience to the jury, Dr.
Foley testified about the four evaluative characteristics that were used by radiologists in
evaluating images of breast lesions: margins, shadowing, axis of orientation, and internal
4
echo consistency. Dr. Foley also described for the jury the Breast Imaging Reporting and
Database System (BI-RADS), a system that was used by radiologists to classify breast
images, and discussed the follow-up treatment that was dictated by each particular
classification. During his testimony, Dr. Foley opined that defendant breached the standard
of care in several respects as to defendant's review of the 2004 images and defendant's
diagnosis in 2004 that the lesion in plaintiff's left breast was benign. Dr. Foley discussed at
length the areas in which defendant breached the standard of care and explained to the jury
the reasons for his opinion in that regard.
¶ 12 Dr. Gillian Maclaine Newstead, a radiologist who specialized in breast imaging and who
was involved in plaintiff's cancer treatment, also testified as an expert witness for plaintiff.
After describing her education and experience to the jury, Dr. Newstead was asked about a
certain portion of the 2004 ultrasound images of plaintiff's left breast. Dr. Newstead stated
that those images showed abnormal breast tissue, a mass, or a lesion. In Dr. Newstead's
opinion, the lesion needed further evaluation, such as additional imaging or a biopsy, to
determine whether it was benign or cancerous. Dr. Newstead acknowledged in her
testimony, however, that she did not review all of the 2004 ultrasound images; that
"abnormal" did not mean "malignant"; and that she had no opinion as to whether defendant
complied with the standard of care, whether plaintiff had cancer in 2004, or whether a cancer
diagnosis in 2004 would have changed plaintiff's prognosis.
¶ 13 Dr. Mark Kelley, a board-certified surgeon who specialized in surgical oncology and who
was asked to review the records in this case, testified for plaintiff as an expert witness on the
issues of causation and damages. After describing his education and experience for the jury,
Dr. Kelley opined, based upon his review of the record, that: (1) plaintiff's lesion in the
5
November 2004 ultrasound should have been classified as at least a BI-RADS 3 (probably
benign), rather than a BI-RADS 2 (benign); (2) plaintiff had cancer in 2004; (3) plaintiff did
not have lymph node involvement in 2004; (4) if plaintiff had been diagnosed with cancer in
2004, her treatment would have been less extensive--plaintiff would have received a
lumpectomy or partial mastectomy, rather than a mastectomy, plaintiff would not have
needed chemotherapy, plaintiff would still have needed radiation therapy but would have had
fewer side effects, plaintiff's prognosis for survival would have been better, both at the time
of diagnosis and at the time of trial, and plaintiff would not have been likely to develop
lymphedema; (5) a modified radical mastectomy, and not a lumpectomy, was the most
appropriate surgical treatment for plaintiff's cancer in 2006, regardless of whether plaintiff
had chemotherapy before or after the surgery; and (6) plaintiff's prognosis for survival at the
point of trial was 90% or greater, since plaintiff had not had a recurrence of cancer within the
first five years. Dr. Kelley explained the reasons for his opinions to the jury. During his
testimony, however, Dr. Kelley acknowledged that it was possible that if plaintiff had
obtained a follow-up mammogram within a year (by November 2005), as she was allegedly
told to do by defendant, plaintiff might not have had lymph node involvement at that time
and that the lesion might still have been small enough for plaintiff to have a lumpectomy,
although chemotherapy would have been required under those circumstances.
¶ 14 Defendant was called to give testimony as an adverse witness in plaintiff's case-in-chief
and, immediately thereafter, to provide testimony in his own case-in-chief. 1 After describing
his background and experience to the jury, defendant testified about his evaluation of
1
Defendant's testimony in his own case-in-chief was presented out of order by agreement
of the parties.
6
plaintiff's 2004 images and his diagnosis in 2004 that the lesion in plaintiff's left breast was
benign. Defendant ultimately opined that he did not breach the standard of care and
explained to the jury the reasons for his conclusion in that regard. As part of that
explanation, defendant described to the jury the four evaluative characteristics and how he
interpreted those characteristics as to plaintiff's lesion. Defendant stated that based upon his
evaluation of plaintiff's 2004 images using the four evaluative characteristics, he classified
plaintiff's breast lesion in 2004 as benign or as a BI-RADS 2. According to defendant, with a
BI-RADS 2 classification, there was a 98% chance that the lesion was benign. Defendant
stated further that after the November 2004 procedures, he told plaintiff that the results were
benign and specifically recommended to plaintiff that she obtain a follow-up mammogram
within a year, which was the appropriate level of follow-up treatment for a BI-RADS 2
diagnosis. Defendant also reported his findings to plaintiff's primary care doctor by letter
and recommended in that letter that plaintiff obtain a follow-up mammogram within a year.
According to defendant, it was the responsibility of plaintiff's primary care doctor to go over
the findings and recommendations with plaintiff. Defendant acknowledged, however, that a
different letter was sent by his office or the hospital to plaintiff personally and that the letter
that was sent to plaintiff did not specifically state that plaintiff was to obtain another
mammogram within a year or indicate that there was still a possibility that the plaintiff's
breast lesion was cancer.
¶ 15 During defendant's direct testimony in his own case-in-chief, the defense sought to use as
demonstrative evidence a PowerPoint presentation that it had prepared. The evidence,
defendant's exhibit No. 18, consisted of several screens of drawings or images that were
taken from a learned treatise, along with copies of plaintiff's own images from the 2004
7
mammograms and ultrasound and from the 2006 ultrasound. The name of the particular
treatise that was used was noted on the screen, allegedly for copyright purposes. Above the
treatise images were headings such as "benign appearing lesions," "benign cyst," and
"infiltrating ductal carcinoma." 2 The exhibit was allegedly being used by the defense to help
the jury understand the complicated medical testimony that was being given by defendant as
to the four characteristics used for evaluation of breast lesions.
¶ 16 Plaintiff objected to the use of the demonstrative exhibit for various reasons and had
claimed earlier that the defense had not properly disclosed the exhibit as required by the
supreme court rules. The defense asserted that it had e-mailed the presentation to plaintiff at
the start of the trial as required by the trial court in its order regarding demonstrative exhibits.
Plaintiff maintained that he had never received the exhibit and was unaware of the exhibit
until it was being tendered during defendant's testimony in the presence of the jury. The trial
court allowed defendant to utilize exhibit No. 18 over plaintiff's objections and instructed the
jury briefly that during the presentation of the exhibit, the defense was going to be doing two
things at once: (1) trying to teach the jury about the types of breast lesion margins; and (2)
transitioning from a known carcinoma in this case to the case itself. When the testimony
resumed, defendant went through the drawings and images with the jury and explained to the
jury what was significant about each image relative to the four characteristics. During the
questioning of defendant, defense counsel was careful to point out when the images in the
exhibit were those from the treatise, rather than plaintiff's own images, and stressed
2
The capitalization has been removed from the quoted headings for the convenience of
the reader.
8
numerous times in the context of the questions that he was asking defendant that the treatise
images were only being used for demonstrative purposes.
¶ 17 Dr. Michael Racenstein, a board-certified radiologist and mammographer, testified for
the defense on the standard of care as an expert witness. After describing his qualifications
and experience for the jury, Dr. Racenstein explained the four evaluative characteristics and
the BI-RADS system. Dr. Racenstein opined that defendant did not breach the standard of
care in this case and explained the reasons for his opinion in that regard to the jury. During
his testimony, Dr. Racenstein acknowledged, however, that he would have classified
plaintiff's lesion in 2004 as a BI-RADS 3 (probably benign), rather than a BI-RADS 2
(benign) lesion, but indicated that the classification to be assigned on the BI-RADS scale was
more of a personal preference, rather than a strict rule.
¶ 18 Defendant's other expert witness, Dr. Bruce Kaden, who was board-certified in internal
medicine, medical oncology, and hematology, gave testimony on the issue of causation.
After describing his qualifications and experience to the jury, Dr. Kaden testified that at the
time of plaintiff's cancer diagnosis in 2006, a different treatment that plaintiff could have
received was to have chemotherapy first and a lumpectomy second, if necessary, after the
size of the lesion had decreased. With that treatment modality, according to Dr. Kaden,
plaintiff could have avoided a mastectomy. Dr. Kaden testified further that from his review
of the case, he believed that plaintiff had breast cancer and lymph node involvement in 2004
and that her treatment, therefore, would have been similar, regardless of whether she was
diagnosed in 2004 or 2006. Thus, according to Dr. Kaden, even if plaintiff had been
diagnosed with cancer in 2004, she still would have undergone essentially the same treatment
and she still would have developed lymphedema. Dr. Kaden acknowledged, however, that
9
there was nothing in the records that indicated that plaintiff had lymph node involvement in
2004 and, that if there was no lymph node involvement when the cancer was discovered,
plaintiff would have had a much smaller risk of developing lymphedema from the treatment
modality that would have been required. Dr. Kaden also acknowledged that a mastectomy
was the treatment modality that was recommended by plaintiff's treatment providers and that
he did not disagree with that treatment recommendation or believe that it was negligent. As
for plaintiff's prognosis, Dr. Kaden opined that plaintiff was completely cured of her cancer,
that the cancer would not return, and that the cancer would not have a negative impact on
plaintiff's life expectancy.
¶ 19 After the evidence had concluded and the attorneys had made their closing arguments, the
trial court instructed the jury on the law. One of the instructions that the trial court gave the
jury was Illinois Pattern Jury Instructions, Civil, No. 105.01 (2005) (hereinafter, IPI Civil
(2005) No. 105.01) on the standard of care in a professional-negligence case. That
instruction had been submitted by the defense. During the jury instruction conference, which
had occurred earlier, plaintiff's attorney had submitted to the trial court the 2006 version of
IPI Civil No. 105.01 (hereinafter, IPI Civil (2006) No. 105.01) and had commented to the
court that the instruction would have to be modified to comply with the Illinois Supreme
Court's decision in Studt v. Sherman Health Systems, 2011 IL 108182, ¶ 46. The trial court
rejected plaintiff's proposed instruction and gave defendant's proposed instruction instead.
The trial court also gave the jury defendant's proposed mitigation of damages instruction
(Illinois Pattern Jury Instructions, Civil, No. 105.08 (2011) (hereinafter, IPI Civil (2011) No.
105.08)) over plaintiff's objection.
10
¶ 20 At the conclusion of deliberations, the jury returned a general verdict for defendant and
against plaintiff. Plaintiff filed posttrial motions for judgment notwithstanding the verdict,
for a new trial, and for rehearing, all of which the trial court denied. This appeal followed.
¶ 21 ANALYSIS
¶ 22 On appeal, plaintiff raises several issues. Although not necessarily in the order raised by
plaintiff, we will first address plaintiff's argument that the trial court erred in denying her
posttrial motion for judgment notwithstanding the verdict or for a new trial. Plaintiff asserts
that her motion should have been granted as to either one form of relief or the other because
of the strength of the evidence in her favor. 3 In support of that assertion, plaintiff claims
that: (1) both defendant and his attorney admitted that defendant violated the standard of
care, an admission that was ignored by the jury at the trial and also by the trial court in ruling
upon the posttrial motions; (2) all of the experts in this case agreed that plaintiff had an
asymmetrical density in her left breast, that such a density could be evidence of cancer, and
that a biopsy in 2004 would have conclusively determined whether plaintiff had cancer in her
left breast at that time; (3) an asymmetrical density, such as the one plaintiff had been
diagnosed with, should never have been cleared as noncancerous or benign without a biopsy
having been done; and (4) despite defendant's conclusion to the contrary, the evidence in this
case, including defendant's own testimony, indicated that plaintiff's lesion was "probably
benign" or BI-RADS 3, rather than "benign" or BI-RADS 2, and that the appropriate
3
Plaintiff also asserts that her motion for a new trial should have been granted because of
the cumulative effect of certain procedural and evidentiary errors that were allegedly committed
by the trial court during the trial of this case and pertained to such matters as the admission of
evidence and jury instructions. Those errors will be specifically addressed later in this opinion.
11
recommendation, therefore, was for plaintiff to return for more testing in six months, a
recommendation that defendant, by his own admission and the admission of his attorney,
never made. Defendant disagrees with plaintiff's claims and assertions, or the significance of
those assertions, and contends that there was ample evidence to support the jury's verdict.
Thus, defendant argues that the trial court properly denied plaintiff's posttrial motion for
judgment notwithstanding the verdict or for a new trial.
¶ 23 A trial court's ruling on a motion for judgment notwithstanding the verdict is subject to a
de novo standard of review on appeal. Lawlor v. North American Corp. of Illinois, 2012 IL
112530, ¶ 37. A motion for judgment notwithstanding the verdict raises a question of law
and asserts that even when all of the evidence is considered in the light most favorable to the
party opposing the motion, there is a total failure or lack of evidence to prove a necessary
element of the opposing party's case. Id. The burden on the party seeking a judgment
notwithstanding the verdict is a high one as the motion may be granted only under a very
limited set of circumstances--when all of the evidence, viewed in the light most favorable to
the party opposing the motion, so overwhelmingly favors the movant that no contrary verdict
based on that evidence could ever stand. See id.; Maple v. Gustafson, 151 Ill. 2d 445, 453
(1992). In ruling upon a motion for judgment notwithstanding the verdict, the court does not
weigh the evidence or concern itself with the credibility of the witnesses and must consider
the evidence, and any reasonable inferences therefrom, in the light most favorable to the
opposing party. Maple, 151 Ill. 2d at 453. A court has no right to enter a judgment
notwithstanding the verdict if the evidence demonstrates a substantial factual dispute or if the
outcome of the case depends upon an assessment of credibility or a determination regarding
conflicting evidence. Id. at 454.
12
¶ 24 In ruling upon a motion for new trial, on the other hand, the trial court will weigh the
evidence and will set aside the jury's verdict and order a new trial only if the verdict is
against the manifest weight of the evidence. Lawlor, 2012 IL 112530, ¶ 38. A verdict is
against the manifest weight of the evidence only if it is clear from the record that the jury
should have reached the opposite conclusion or if the jury's findings are unreasonable,
arbitrary, and not based upon any of the evidence presented. Id. On appeal, the trial court's
ruling on a motion for new trial will not be reversed unless the trial court committed an abuse
of discretion in making its ruling. Id. In determining whether an abuse of discretion has
occurred, the reviewing court should consider whether the jury's verdict was supported by the
evidence and whether the losing party was denied a fair trial. Maple, 151 Ill. 2d at 455-56.
¶ 25 Having reviewed the evidence presented at the trial in the present case, we find that the
trial court properly denied plaintiff's posttrial motion for judgment notwithstanding the
verdict or for a new trial. Contrary to plaintiff's claim on appeal, we do not read this record
as containing any admissions by defendant or his attorneys that defendant breached the
standard of care in either his interpretation of plaintiff's 2004 images or in his 2004 diagnosis
that the lesion in plaintiff's left breast was benign. In fact, defendant and one of his expert
witnesses both specifically testified that defendant did not breach the standard of care. In
addition, we find no support in the record for plaintiff's claim that an asymmetrical density
should never be ruled benign without a biopsy having been done. No expert witness testified
to that effect and, as with the previous claim, defendant and one of his expert witnesses
specifically testified that a biopsy was not required in 2004 under the facts of this case and
the applicable standard of care. Nor do we agree with plaintiff's characterization of the
testimony regarding the BI-RADS classification of plaintiff's lesion. The testimony to which
13
plaintiff refers appears to be a description in general terms as to whether the observed
characteristic was an indication of a benign lesion or a malignant lesion and not a more
specific description as to the appropriate BI-RADS classification. Indeed, it was very clear
from defendant's testimony that when it was time to put all of the diagnostic information
together and form a conclusion, defendant concluded, using his expertise, that plaintiff's
lesion was benign or BI-RADS 2. The fact that defendant's expert witness, Dr. Racenstein,
testified that he would have classified plaintiff's lesion in 2004 as a BI-RADS 3 lesion does
not alter our conclusion but, rather, was merely another piece of information for the jury to
consider.
¶ 26 Ultimately, this case involved a classic battle of expert witness testimony. The testimony
of plaintiff's expert witnesses supported plaintiff's side of the case and the testimony of
defendant and his expert witnesses supported defendant's side of the case. It was the jury's
role to determine whether each expert witness was credible and how much weight to give to
each expert's testimony. See Maple, 151 Ill. 2d at 452; Walski v. Tiesenga, 72 Ill. 2d 249,
260 (1978). Under the circumstances present in the instant case, plaintiff's motion for
judgment notwithstanding the verdict or for a new trial was properly denied. See Lawlor,
2012 IL 112530, ¶ 37; Maple, 151 Ill. 2d at 455-56.
¶ 27 Next, we will address plaintiff's claim regarding defendant's use of the PowerPoint
presentation, defendant's Exhibit No. 18. Plaintiff argues that the trial court committed
reversible error by allowing the defense to present Exhibit No. 18 as demonstrative evidence
during defendant's testimony at trial. Plaintiff asserts that the use of the exhibit was improper
because: (1) the necessary foundation for the exhibit, which contained images from a learned
treatise, was never established; (2) such an exhibit could only be presented in cross-
14
examination, not in direct examination, as it was in the present case; (3) the exhibit was not
timely disclosed to plaintiff as required by the supreme court rules on discovery; and (4) the
exhibit was not actually being used by the defense as demonstrative evidence but, rather, was
being used by the defense to try to corroborate defendant's medical opinion that he correctly
diagnosed plaintiff's lesion as benign from plaintiff's imaging tests. Plaintiff asserts further
that the erroneous admission of exhibit No. 18 was highly prejudicial in this case and that it
warrants a reversal of the trial court's judgment on the jury verdict and a remand for new
trial. Defendant disagrees with plaintiff's various assertions and contends that the trial court
properly exercised its discretion in ruling that exhibit No. 18 was admissible as
demonstrative evidence. In the alternative, defendant contends that even if the trial court's
ruling was incorrect, reversal in this case is not warranted because plaintiff cannot show that
the alleged error caused substantial prejudice that affected the outcome of the trial.
Defendant argues, therefore, that the trial court's judgment should be affirmed.
¶ 28 A trial court's ruling on the admissibility of evidence, including demonstrative evidence,
will not be reversed on appeal absent an abuse of discretion. See In re Leona W., 228 Ill. 2d
439, 460 (2008); Schuler v. Mid Central Cardiology, 313 Ill. App. 3d 326, 337 (2000). The
threshold for finding an abuse of discretion is a high one and will not be overcome unless it
can be said that the trial court's ruling was arbitrary, fanciful, or unreasonable, or that no
reasonable person would have taken the view adopted by the trial court. See Blum v. Koster,
235 Ill. 2d 21, 36 (2009); Leona W., 228 Ill. 2d at 460. If a trial court commits an abuse of
discretion in the admission of evidence, a new trial should be ordered only if the trial court's
ruling appears to have caused substantial prejudice affecting the outcome of the trial. See
Leona W., 228 Ill. 2d at 460; Troyan v. Reyes, 367 Ill. App. 3d 729, 732-33 (2006).
15
¶ 29 Physical objects that are admitted into evidence or used at trial (physical evidence) fall
into one of two categories, real evidence or demonstrative evidence. Smith v. Ohio Oil Co.,
10 Ill. App. 2d 67, 74 (1956); see Ill. R. Evid. 401 (eff. Jan. 1, 2011). A physical object that
has a direct part in the incident at issue such that it has probative value in and of itself is
considered to be real evidence. Smith, 10 Ill. App. 2d at 74-76; Michael H. Graham,
Graham's Handbook of Illinois Evidence § 401.2, at 159 (10th ed. 2010). On the other hand,
a physical object that does not have a direct part in the incident at issue and is only being
used to help explain or illustrate to the trier of fact the verbal testimony of a witness or other
evidence is considered to be demonstrative evidence. Id. Demonstrative evidence has no
probative value in and of itself and is merely admitted or used as a visual aid to the trier of
fact. Id.; Cisarik v. Palos Community Hospital, 144 Ill. 2d 339, 341-42 (1991). The great
value of demonstrative evidence "lies in the human factor of understanding better what is
seen than what is heard." Smith, 10 Ill. App. 2d at 75. The use of demonstrative evidence,
therefore, is looked upon favorably by the courts because it allows the trier of fact to have the
best possible understanding of the matters before it. Id. at 75-76; Schuler, 313 Ill. App. 3d at
337. However, the same human factor that makes demonstrative evidence valuable--that
people learn and understand better what they see, rather than what they hear--also makes it
possible for parties to abuse the use of demonstrative evidence by giving a dramatic effect or
undue or misleading emphasis to some issue, at the expense of others. Smith, 10 Ill. App. 2d
at 76. Thus, in ruling upon the admissibility of demonstrative evidence, the trial court must
be ever watchful to prevent or eliminate that abuse. See id. at 76-77.
¶ 30 The primary considerations in determining whether demonstrative evidence is admissible
or may be used at trial are relevancy and fairness. See Ill. R. Evid. 401, 402, 403 (eff. Jan. 1,
16
2011); Schuler, 313 Ill. App. 3d at 337; People ex rel. Sherman v. Cryns, 203 Ill. 2d 264,
283-84 (2003); Smith, 10 Ill. App. 2d at 74-77. As for relevancy, for demonstrative evidence
to be admissible, it must actually be used to illustrate or explain the verbal testimony of a
witness as to a matter that is relevant in the case in question. See id; Graham, supra § 401.3,
at 160. With regard to fairness, even if the relevancy test has been satisfied, demonstrative
evidence may still be excluded by the trial court if "its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence." See Ill. R. Evid. 403 (eff. Jan. 1, 2011); Sherman, 203 Ill. 2d at 284; Cisarik, 144
Ill. 2d at 342.
¶ 31 In addition to the above, before demonstrative evidence may be presented or admitted at
trial, a proper foundation for the use of the evidence must be established. See Sherman, 203
Ill. 2d at 283-84; Cisarik, 144 Ill. 2d at 342. If the demonstrative evidence that the proponent
seeks to admit is a filmed or photographed image, such as in the present case, to establish the
necessary foundation, the proponent must have a witness with personal knowledge of the
filmed or photographed object testify that the film or image is an accurate portrayal of what it
purports to show, unless, of course, the parties have made a stipulation to that effect. See id.
Absent such a foundation, the demonstrative evidence may not be presented or admitted at
trial. See Sherman, 203 Ill. 2d at 283-85.
¶ 32 Having reviewed the record in the present case, we do not believe that defendant's exhibit
No. 18 was properly classified as demonstrative evidence. The use of the exhibit at trial went
well beyond merely trying to teach or educate the jury about the four evaluative
characteristics that radiologists use to evaluate breast lesions, a matter about which three of
17
the expert witnesses in this case testified. Rather, it appears from the record that the treatise
images and diagrams contained in exhibit No. 18 were used to help show the basis of
defendant's own medical opinion in this case and to support his diagnosis in 2004 that
plaintiff's lesion was benign. Our opinion in that regard is best illustrated by certain screens
of the PowerPoint presentation which contained main or side headings referencing the word,
"benign," such as "benign appearing lesions," "benign shadowing," or "benign appearing
echoes," and on the same screens showed images from plaintiff's November 2004 tests. We
see no reason why plaintiff's 2004 images were placed under or to the side of such headings,
other than to try to support, and show the bases for, defendant's medical opinion that the
2004 images were correctly interpreted as benign.
¶ 33 The use of such an exhibit for that purpose is permissible under Wilson v. Clark, 84 Ill.
2d 186 (1981), and Illinois Rule of Evidence 703 (eff. Jan. 1, 2011), if a proper foundation
has been established and if there has been proper disclosure. 4 In this case, however, it was
never established that the learned treatise, from which the diagrams and images were taken,
was a reliable authority as required under Wilson v. Clark and Illinois Rule of Evidence 703.
See Wilson, 84 Ill. 2d at 192-96 (an expert may testify about facts or data upon which he or
she has based his opinion if those facts or data are of the type reasonably relied upon by
experts in the particular field in forming opinions on the subject, even if those facts or data
are not admissible in evidence); Ill. R. Evid. 703 (eff. Jan. 1, 2011); Graham, supra § 703.1,
4
Although plaintiff asserts that defendant could not properly bring out in direct
examination the bases of defendant's medical opinion, the rulings of our supreme court would
seem to indicate to the contrary, albeit in cases that did not involve the use of a learned treatise.
See People v. Anderson, 113 Ill. 2d 1, 9-12 (1986); People v. Pasch, 152 Ill. 2d 133, 176 (1992).
18
at 677. Because a proper foundation was not established as provided for in Wilson v. Clark,
it was error for the trial court to allow the defense to use exhibit No. 18 to show the bases of
defendant's opinion that plaintiff's lesion was benign and not cancerous in 2004. See id.
¶ 34 Furthermore, the use of the diagrams and the conclusory images in exhibit No. 18 to
show the basis of defendant's medical opinion was highly prejudicial in this case because it
went right to the heart of the malpractice claim--that defendant failed to correctly interpret
plaintiff's 2004 breast lesion images as malignant--and because it was not sufficiently
disclosed in a timely manner as required under Illinois Supreme Court Rule 213 (eff. Jan. 1,
2007) and Rule 214 (eff. Jan. 1, 1996). When our supreme court adopted Federal Rules of
Evidence 703 and 705 (Fed. R. Evid. 703, 705) in Wilson v. Clark, which are now
incorporated into Illinois Rules of Evidence 703 and 705 (eff. Jan. 1, 2011), the supreme
court noted that the burden was on the adverse party to elicit in cross-examination the facts
underlying the expert's opinion. Wilson, 84 Ill. 2d at 194. The supreme court noted further
that doing so did not place an undue burden on the cross-examining party in light of our
state's extensive pretrial discovery procedure. Id. Nevertheless, with the burden upon the
adverse party during cross-examination to elicit facts underlying the expert's opinion, it is a
matter of fundamental fairness that the adverse party be given proper and timely disclosure
so that it may have the opportunity to prepare for cross-examination. The importance of that
requirement in cases such as this cannot be overemphasized. See Leonardi v. Loyola
University of Chicago, 168 Ill. 2d 83, 104 (1995) (cross-examination is the principal
safeguard against errant expert testimony); People v. Safford, 392 Ill. App. 3d 212, 224
(2009) (describing cross-examination as the "truth-seeking engine"); 5 Wigmore, Evidence
§ 1367, at 32-33 (Chadbourn rev. ed. 1974) (stating that cross-examination is "beyond any
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doubt the greatest legal engine ever invented for the discovery of truth" and recognizing "its
efficacy as a fundamental test of truth").
¶ 35 On a number of occasions in this case, defendant, testifying as an expert, utilized the
diagrams and images from the learned treatise and compared them to the plaintiff's images.
Defendant described the images during his testimony in a conclusive manner, such as a
"biopsy-proven simple cyst" (exhibit No. 18-C), a "biopsy-proven one [carcinoma] from
another case" (exhibit No. 18-E), a "benign cyst" (exhibits No. 18-L and 18-P), a
"fibroadenoma" (exhibits No. 18-Q and 18-R), and a "biopsy-proven infiltrating ductal
carcinoma" (exhibit No. 18-U). Without timely disclosure, plaintiff was completely deprived
of her ability to effectively cross-examine defendant as to such matters as the extent of his
reliance on the treatise, whether the treatise was truly a reliable authority, whether the
specific images and diagrams in question were reliable, and whether it was reasonable for
defendant to rely on the treatise in this case. It might have been possible that vigorous
adversarial cross-examination in this case may have impeached the importance or reliability
of the treatise, its author, or the specific images and diagrams in question. However, it is not
possible to know the extent of cross-examination because the lack of timely disclosure in this
case deprived plaintiff of the opportunity to prepare for cross-examination and essentially
deprived plaintiff of the right to cross-examine the basis of defendant's medical opinion.
Given these circumstances, reversal of the trial court's judgment and remand for a new trial
are required. See Leona W., 228 Ill. 2d at 460; Troyan, 367 Ill. App. 3d at 732-33.
¶ 36 In reaching that conclusion, we must note that even if defense exhibit No. 18 was
properly classified as demonstrative, we would still have to find that the use of the treatise
images from the exhibit was erroneous because defendant failed to present an adequate
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foundation. See Sherman, 203 Ill. 2d at 283-84; Cisarik, 144 Ill. 2d at 342. At no time in
this case did defendant or any other witness testify from personal knowledge that the sample
images or diagrams contained in exhibit No. 18 from the treatise accurately portrayed the
diagnostic condition (benign or cancerous) that they purported to show. Thus, exhibit No. 18
could not be properly admitted or used as a demonstrative exhibit under any circumstances.
See id.
¶ 37 Having determined that reversal of the trial court's judgment and remand for new trial is
warranted, we need only address the two remaining issues regarding jury instructions to the
extent necessary to prevent any possible error from re-occurring on retrial. In the first of
those issues, plaintiff argues that the trial court committed reversible, or, at the very least,
prejudicial error when it refused plaintiff's proposed instruction on the standard of care,
which was based upon IPI Civil (2006) No. 105.01, and which plaintiff intended to modify to
comply with the supreme court's ruling in Studt, after the matter had been argued before the
court. The trial court rejected plaintiff's proposed instruction and gave the defendant's
tendered version of IPI Civil No. 105.01, which was based upon the 2005 version of the
instruction. We need not address the merits of plaintiff's claim on this issue because IPI Civil
No. 105.01 has since been modified to comply with the supreme court's ruling in Studt. See
IPI Civil (2012) No. 105.01, Comment; Perkey v. Portes Jarol, 2013 IL App (2d) 120470,
¶ 73. We presume that the newest version of IPI Civil No. 105.01 will be given to the jury
upon retrial.
¶ 38 As her second jury instruction issue on appeal, plaintiff argues that the trial court
committed reversible, or, at the very least, prejudicial error when it instructed the jury on
mitigation of damages (IPI Civil (2011) No. 105.08) over plaintiff's objection. Plaintiff
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asserts that such an instruction was improper and unwarranted because it was not supported
by sufficient evidence in the record and that she was prejudiced by the improper instruction
because it caused the jury to focus its attention onto plaintiff's own conduct--an issue that
was not relevant. Defendant argues that the trial court's ruling on the mitigation of damages
instruction was supported by the evidence, was proper, and should be upheld. In the
alternative, defendant asserts that even if the trial court's decision to allow the instruction was
erroneous, reversible error did not occur because the instruction did not result in serious
prejudice to plaintiff since the jury never reached the issue of damages.
¶ 39 For a particular jury instruction to be warranted, it must be supported by some evidence
in the record. Heastie v. Roberts, 226 Ill. 2d 515, 543 (2007); Schuler, 313 Ill. App. 3d at
336. The determination as to which issues are raised by the evidence presented and which
jury instructions should be given rests in the sound discretion of the trial court and its
decisions in that regard will not be reversed on appeal absent an abuse of discretion. Id.;
Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 273 (2002);
Studt, 2011 IL 108182, ¶ 13. The standard for determining whether an abuse of discretion
has occurred in the giving of jury instructions is whether the jury instructions, taken as a
whole, were sufficiently clear so as not to mislead the jury and whether the instructions fairly
and correctly stated the law. Dillon v. Evanston Hospital, 199 Ill. 2d 483, 505 (2002). Thus,
reversal based upon the giving of a faulty jury instruction is warranted only if the faulty
instruction clearly misled the jury and resulted in serious prejudice to the opposing party.
Schultz, 201 Ill. 2d at 274.
¶ 40 After reviewing the record in the present case, we find that the mitigation of damages
instruction was supported by the evidence and was, therefore, properly given. See Heastie,
22
226 Ill. 2d at 543; Schuler, 313 Ill. App. 3d at 336. Although evidence was presented to the
contrary, defendant clearly testified that after the November 2004 tests, he told plaintiff to
obtain a follow-up mammogram within a year. That same recommendation was contained in
the letter that defendant sent to plaintiff's primary care physician after the November 2004
tests were completed. If the jury found that defendant's testimony in that regard was
credible, it could have reasonably concluded that plaintiff had failed to follow defendant's
recommendation and that plaintiff's failure in that regard may have delayed the discovery of
her cancer and her treatment after defendant's alleged medical negligence had already
occurred. Because defendant's mitigation of damages instruction was supported by at least
some evidence, the trial court did not abuse its discretion in giving the instruction over
plaintiff's objection. See Heastie, 226 Ill. 2d at 543; Schuler, 313 Ill. App. 3d at 336; Fisher
v. Slager, 201 Ill. App. 3d 480, 487 (1990) (mitigation of damages instruction was supported
by some evidence and was appropriately given).
¶ 41 CONCLUSION
¶ 42 For the foregoing reasons, we reverse the judgment of the circuit court of La Salle
County and remand this case for a new trial.
¶ 43 Reversed and remanded.
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