Rule 23 order filed NO. 5-05-0545
March 6, 2007;
Motion to publish granted IN THE
April 10, 2007.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
SCOTT JACKSON, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Madison County.
)
v. ) No. 03-L-2011
)
DAVID W. SEIB, ) Honorable
) Phillip J. Kardis,
Defendant-Appellee. ) Judge, presiding.
________________________________________________________________________
JUSTICE SPOMER delivered the opinion of the court:
The plaintiff, Scott Jackson, appeals from the order of the circuit court of Madison
County that entered a judgment for the defendant, David W. Seib, pursuant to a jury verdict.
The plaintiff raises numerous issues on appeal, which we restate as follows: (1) whether the
circuit court erred in denying the plaintiff's requests for a directed verdict, a judgment
notwithstanding the verdict (n.o.v.), or a new trial on the issue of the defendant's negligence,
(2) whether the circuit court erred in allowing the admission of photographs of the plaintiff's
vehicle following the accident, (3) whether the circuit court erred in allowing the defendant's
experts to testify that, in their opinion, the plaintiff was not injured as a result of the
defendant rear-ending him, (4) whether the circuit court erred in excluding the plaintiff's
demonstrative evidence as a sanction for a discovery violation, (5) whether the circuit court
erred in denying the plaintiff's proposed jury instruction on an increased risk of future injury,
and (6) whether the circuit court erred in admitting the testimony of the investigating officer,
who had no independent recollection of the accident. For the following reasons, we affirm
the judgment entered by the circuit court.
1
The facts necessary for our disposition of this appeal are as follows. On December
11, 2003, the plaintiff, Scott Jackson, filed a complaint in the circuit court of Madison
County, alleging that the defendant, David Seib, was negligent when he rear-ended the
plaintiff, causing the plaintiff various personal injuries and lost wages. The case was tried
to a jury of 12, beginning on June 20, 2005.
The plaintiff was the first to testify in his case in chief. He testified that he had been
at a dead stop for 20 to 30 seconds in a traffic jam on Interstate 270 in his 1998 Mitsubishi
Gallant when the defendant rear-ended him, pushing him into the vehicle in front of him.
Upon impact he was launched forward due to an apparent failure of his seat belt, pulling his
left arm. In addition, he testified that a part of his head struck the windshield and that he
experienced a headache and dizziness immediately following the accident. However, he did
not request an ambulance. Instead, he waited for his wife to pick him up and drive him to
the emergency room.
According to the plaintiff, while at the emergency room, he was diagnosed with a
concussion and a cervical neck sprain. In the weeks following the accident, he began
experiencing memory loss, sexual dysfunction, an inability to concentrate, massive
headaches, blurry vision, and nausea. He also testified that he had left shoulder pain and that
his left shoulder started rotating out of socket. The plaintiff testified that due to these
symptoms, he was unable to work for approximately two months.
The plaintiff underwent a short period of physical therapy at a facility he referred to
as MECCA. The plaintiff explained that although he told his physical therapist two weeks
after the accident that he had split logs, he had used a log-splitting machine with assistance
from his father-in-law. He also participated in extensive treatment with Associated
Physicians. He visited Associated Physicians approximately 40 times in a two-month period,
according to his testimony. Associated Physicians referred him to an ophthalmologist and
2
an orthopedic surgeon. He also participated in an independent medical exam with Dr. Beyer
at the defendant's request. The plaintiff explained that prior to the accident, he had been
treated for depression and anxiety and had been prescribed Celexa, an antidepressant, and
amitriptyline, an antianxiety medication. According to the plaintiff, these medications helped
him to sleep. He also had a previous right shoulder injury while in college.
According to the plaintiff's testimony, the memory loss he experienced following the
accident was quite extensive. He testified to several specific instances of extreme memory
loss. For example, he testified that he forgot his daughter's name, that he forgot that he had
a dog, and that, on one occasion, he left his vehicle running in the parking lot of a Home
Depot and walked a mile and a half to his doctor's office.
The plaintiff also described a subsequent accident in 2003 in which he rear-ended a
vehicle. However, the plaintiff asserted that he was not injured in this accident. He
attributed one visit to Associated Physicians to this accident and testified that he returned to
work immediately.
On cross-examination, the defendant presented a series of photographs to the plaintiff
and asked him if they fairly and accurately portrayed the condition of his vehicle as a result
of the accident. The plaintiff testified that he did not think so, but he was impeached by his
prior inconsistent statement in his deposition that they did. The plaintiff objected to the
photographs being admitted into evidence, based on the lack of a foundation. The circuit
court overruled the objection, stating that the foundation was sufficient by way of the
admission in the deposition. The photographs, which depict extremely minor damage to the
plaintiff's vehicle, were admitted into evidence.
Annette Shirley, billing supervisor and records custodian for Associated Physicians,
described the foundation of the medical bills. A ccording to Ms. Shirley, the bills, which
totaled $15,978, were reasonable and customary. Robert Fast, an Associated Physicians
3
chiropractor, testified that the plaintiff first visited him on October 15, 2002. At that time,
the plaintiff complained of neck pain, headache, shoulder pain, dizziness, nausea, and
memory loss. He was diagnosed with postconcussion syndrome and placed on an extensive
multidisciplinary treatment program consisting of physical therapy, chiropractic adjustments,
trigger point injections, diagnostic and therapeutic ultrasounds, and the use of state-of-the-art
MEDEX equipment. He was also referred to an ophthalmologist, an orthopedic surgeon, and
a neurologist. The neurological exam results were normal, reflecting normal memory,
normal intellect, fluent and articulate speech, and normal visual acuity. Nevertheless, Dr.
Fast stated that all the treatment was reasonable and necessary. He also testified that the
postconcussion syndrome was a result of the whiplash and that a concussion can occur
without impact and at low speed. The plaintiff was discharged at maximum medical
improvement on January 24, 2003.
Trooper Andrew Connor testified that he investigated the accident and generated a
police report. He testified that there was no visible injury to either party and that he
determined no ambulance was necessary. Trooper Connor's investigation revealed that only
two vehicles had been involved in the accident. The defendant was ticketed for the failure
to reduce speed to avoid a crash. According to Trooper Connor's testimony, the plaintiff was
slowing in traffic when he was struck from the rear. On cross-examination by the plaintiff,
Trooper Connor testified that he does not remember anything regarding the accident without
looking at the police report.
Dr. Fred Ginsberg, medical director of Associated Physicians, testified via a video
evidence deposition. Dr. Ginsberg described the same facts as Dr. Fast with regard to the
plaintiff's subjective complaints, the diagnosis of postconcussion syndrome, and the
plaintiff's treatment at Associated Physicians. Dr. Ginsberg mirrored Dr. Fast's opinion that
whiplash can occur in a low-impact accident and that all the treatment of the plaintiff was
4
reasonable and necessary. All the symptoms exhibited by the plaintiff, including the
instances of extreme memory loss, were consistent with postconcussion syndrome. In
addition, Dr. Ginsberg testified that patients who are injured are predisposed to future injury
in the same areas of the body. Dr. Ginsberg testified that he did not see the postaccident
photos of the vehicles.
The defendant commenced his case in chief by introducing the testimony of Dr. Craig
Beyer via a video evidence deposition. Dr. Beyer is a board-certified orthopedic surgeon
who had reviewed the plaintiff's medical records, X rays, and MRI films and also conducted
an independent medical exam of the plaintiff. According to Dr. Beyer, the history given by
the plaintiff in the emergency room was that the defendant was traveling 50 miles per hour
when he rear-ended the plaintiff. Dr. Beyer testified that he relied on photographs of the
vehicle with regard to the nature and severity of the impact because that information is
crucial to his opinion regarding the causal relationship between the accident and the
plaintiff's complaints. Dr. Beyer testified that, based on his education in biomechanics and
physics, it is clear from the photographs that there was not a 50-mile-per-hour impact as the
plaintiff suggested in the emergency room.
Dr. Beyer conducted an independent medical exam of the plaintiff on March 8, 2005.
It was his opinion that the plaintiff's subjective complaints regarding his shoulder injury were
atypical and that any instability of the shoulder was due to the plaintiff's generalized
ligamentous laxity, which is not impacted by a single injury event. According to Dr. Beyer,
a strengthening of the muscles surrounding the shoulder would correct any instability. Dr.
Beyer's review of the plaintiff's MRI revealed mild rotator-cuff tendinitis. He also pointed
out that the emergency room records revealed that the plaintiff made no complaint of
shoulder pain following the accident. In addition, Dr. Beyer's review of the plaintiff's
medical records revealed that the plaintiff had told his physical therapist at MECCA that he
5
had raked his yard and cut and stacked firewood two weeks after the accident. According
to Dr. Beyer, that type of activity was inconsistent with an acute shoulder injury. Dr. Beyer
criticized Dr. Shikar, who had diagnosed a labral tear of the shoulder, stating that it is highly
inaccurate to diagnose a significant shoulder injury with ultrasound. Dr. Beyer testified that
in his opinion, within a reasonable degree of medical certainty, the plaintiff's subjective
complaints and the condition of his shoulder had no causal connection with the accident.
Dr. Karen Pentella, an assistant professor of neurology at Washington University, also
testified on behalf of the defendant. Dr. Pentella testified that she had conducted a review
of the plaintiff's medical records at the request of the defendant. With regard to the
emergency room records, Dr. Pentella testified that there were no objective findings of head
trauma. All the subsequent testing of the plaintiff, including a CT scan of the brain, an X ray
of the left shoulder, an MRI of the brain and neck, and an EEG, was normal. Dr. Pentella
also noted that the history given by the plaintiff to his treating providers was increasingly
dramatic. According to Dr. Pentella, any diagnosis of postconcussion syndrome was based
on subjective complaints only, with no objective findings. Dr. Pentella noted that the
plaintiff has preexisting issues, including previous treatment for anxiety and depression,
which can cause headache and dizziness. Dr. Pentella concluded, within a reasonable degree
of medical certainty, that the plaintiff did not have a concussion. Dr. Pentella cited the lack
of impact and the lack of an alteration of consciousness as a part of the basis for her opinions.
With regard to the plaintiff's shoulder complaints, Dr. Pentella testified that a shoulder
exam by a Dr. Stein after the accident revealed that the plaintiff had a full range of motion.
Also, her review of the MRI of the shoulder did not reveal a labral tear. Dr. Pentella noted
that further testing had been recommended but never conducted. It was Dr. Pentella's
opinion that the plaintiff did not require shoulder surgery.
6
The defendant testified on his own behalf, explaining that he had been on his way to
work on the morning of the accident, in stop-and-go traffic on Interstate 270 westbound. He
contacted the rear of the plaintiff's vehicle when he looked down briefly to reach a pack of
cigarettes. According to the defendant, he was driving at a speed of one to three miles per
hour when the impact occurred. The defendant testified that at the time of the impact he did
not see the plaintiff fly around in his car. After the accident, there was no observable injury
to the plaintiff, and the plaintiff said he was fine. The only damage to the defendant's vehicle
was a slightly bent license plate.
Jenny Burgner, coordinator at the Southern Illinois Sleep Disorder Center, testified
that six to eight weeks prior to the accident the plaintiff had been given an appointment for
an initial consultation and snoring evaluation. His appointment was on October 3, 2002, only
two days after the accident. The records for that date show that the plaintiff made no
complaints of pain and did not mention the accident at that appointment. He also answered
an extensive questionnaire regarding his history. The plaintiff returned to the sleep disorder
center on November 14, 2002. At that time, he did report the accident and complained of
head and neck pain.
On rebuttal, the plaintiff sought to introduce, as demonstrative evidence, a model
bumper from a 1998 Mitsubishi Gallant. The defendant objected based on the plaintiff's
failure to supplement discovery responses with this evidence. The circuit court sustained the
defendant's objection based on the discovery violation. At the jury instruction conference,
jury instructions on the elements of negligence, proximate cause, and damages were agreed
to by the parties. However, the plaintiff sought to introduce Illinois Pattern Jury Instructions,
Civil, No. 30.04.04 (2006), entitled "Increased Risk of Harm–Calculation." The circuit court
denied the plaintiff's tendered instruction.
On the last day of the trial, the plaintiff filed a motion for a directed verdict. The
7
motion argued that the plaintiff was entitled to a judgment as a matter of law regarding
negligence, proximate cause, and damages. The circuit court denied the plaintiff's motion,
stating that the issue of proximate cause is not such that it would be appropriate for a directed
verdict. The plaintiff then made an oral motion for a directed verdict on liability only. The
circuit court denied the motion as untimely because the jury was already in deliberations.
The jury returned with a verdict for the defendant and against the plaintiff.
On July 22, 2005, the plaintiff filed a posttrial motion for a directed verdict or a
judgment n.o.v. or, in the alternative, a new trial. At a hearing held on August 18, 2005, the
circuit court denied the plaintiff's posttrial motion. On September 16, 2005, the plaintiff filed
a notice of appeal.
The first three arguments in the plaintiff's brief can be combined into one argument
that the circuit court erred in denying his requests for a directed verdict, a judgment n.o.v.,
or a new trial on the issue of the defendant's negligence. There are established standards to
be used in determining whether a directed verdict, a judgment n.o.v., or a new trial should
be granted. Maple v. Gustafson, 151 Ill. 2d 445, 453 (1992). A directed verdict or a
judgment n.o.v. is properly entered in those limited cases where all the evidence, when
viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant
that no contrary verdict based on that evidence could ever stand. Maple, 151 Ill. 2d at 453.
In ruling on a motion for a directed verdict or a judgment n.o.v., a court does not weigh the
evidence, nor is it concerned with the credibility of witnesses; rather, it may only consider
the evidence, and any inferences therefrom, in the light most favorable to the party resisting
the motion. Maple, 151 Ill. 2d at 453. Also, a judgment n.o.v. may not be granted merely
because a verdict is against the manifest weight of the evidence. Maple, 151 Ill. 2d at 453.
We apply the de novo standard of review to the trial court's denial of a motion for a directed
verdict, as well as its denial of a judgment n.o.v. Moss v. Amira, 356 Ill. App. 3d 701, 705
8
(2005).
In contrast, on a motion for a new trial, a court will weigh the evidence and set aside
the verdict and order a new trial if the verdict is contrary to the manifest weight of the
evidence. Maple, 151 Ill. 2d at 454. A verdict is against the manifest weight of the evidence
where the opposite result is clearly evident or where the findings of the jury are unreasonable,
arbitrary, and not based on the evidence. Maple, 151 Ill. 2d at 454. A court's ruling on a
motion for a new trial will not be reversed except in those instances where it is affirmatively
shown that it clearly abused its discretion. Maple, 151 Ill. 2d at 455. In determining whether
the trial court abused its discretion, 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.
After carefully reviewing the evidence adduced at the trial as set forth above, we
cannot find that the findings of the jury were unreasonable, arbitrary, and not based on the
evidence. The jury in this case heard conflicting testimony regarding what, if any, injuries
the plaintiff had sustained as a result of the accident in question. The credibility issues in the
trial were especially significant in light of the subjective nature of the plaintiff's complaints,
the photographic evidence showing the minor nature of the impact, and Dr. Pentella's and Dr.
Beyer's findings. Whether a concussion could occur with little or no impact was also
contested. The question of whom to believe and what weight to be given to all the evidence
was a decision for the trier of fact.
Even assuming that the defendant admitted breaching the standard of care when he
looked down briefly to locate his pack of cigarettes, the motion for a directed verdict that the
plaintiff filed prior to submitting the instructions to the jury was directed toward all the
elements, including proximate cause and damages, which were clearly at issue. In addition,
the plaintiff agreed to instructing the jury on these issues. The plaintiff's oral motion for a
9
directed verdict on the issue of liability only was clearly untimely, because the jury had
begun deliberating. For all these reasons, we cannot say that the circuit court erred in
denying the plaintiff's requests for a directed verdict, a judgment n.o.v., or a new trial.
We also decline the plaintiff's invitation to fashion a rule based upon public policy that
permits the plaintiff to recover for all medical testing reasonably related to the events at issue
regardless of whether the testing reveals an injury. That rule would be contrary to our public
policy and well-established principles of negligence, which require a breach of duty,
causation, and damages before a person can be held liable for the medical expenses of
another as a result of an accident. See, e.g., McLean v. Rockford Country Club, 352 Ill. App.
3d 229, 232-33 (2004) (citing Ward v. K mart Corp., 136 Ill. 2d 132, 140 (1990)).
The plaintiff next argues that the circuit court erred in admitting into evidence the
photographs of the plaintiff's vehicle following the accident. Specifically, the plaintiff argues
that there was an insufficient foundation for the admission of the photographs into evidence,
that the photographs were not probative of any issue in the case, that it was erroneous to
admit the photographs into evidence as probative of the speed of the impact, and that the
prejudicial nature of the photographs outweighs any probative value. It is the function of the
trial court to determine the admissibility of evidence, and its rulings will not be disturbed
absent an abuse of discretion. Independent Trust Corp. v. Hurwick, 351 Ill. App. 3d 941, 952
(2004).
With regard to the lack of a foundation, the plaintiff argues that the photographs were
not taken by any witness who testified at the trial and that the defendant never identified who
had taken the photographs so that the plaintiff could depose the photographer to challenge
the photos and what they depicted. However, the plaintiff cites no authority in support of his
contention that such identification is required. The plaintiff admitted in his deposition that
the photographs fairly and accurately portrayed the condition of his vehicle after the accident.
10
Although he attempted to backtrack from this testimony at the trial, the plaintiff was properly
impeached with his prior inconsistent statement. We cannot say the circuit court abused its
discretion when it determined that the prior admission by the plaintiff was a sufficient
foundation for the photographs.
The plaintiff also claims it was improper and highly prejudicial to allow the defendant
to offer into evidence photographs showing little damage to the plaintiff's vehicle. He argues
that expert testimony is required to show a correlation between the lack of damage to the
plaintiff's vehicle and an injury to the plaintiff, citing DiCosola v. Bowman, 342 Ill. App. 3d
530 (2003). As explained in the later case of Ferro v. Griffiths, 361 Ill. App. 3d 738, 742
(2005), in DiCosola, the trial court granted the plaintiff's motion in limine to exclude
photographs of the lack of damage to the vehicles, and on review, the appellate court found
that this ruling was not an abuse of discretion. DiCosola, 342 Ill. App. 3d at 537. The
appellate court rejected the notion that such pictures must always be allowed or, on the other
hand, that expert testimony is always necessary for the photographs to be admissible. Ferro,
361 Ill. App. 3d at 743. The court refused to adopt a rigid rule that proscribes the admission
of pictures into evidence without an expert. Ferro, 361 Ill. App. 3d at 743. The critical
question in admitting these photographs into evidence is whether the jury can properly relate
the vehicular damage depicted in the pictures to the injury without the aid of an expert.
Ferro, 361 Ill. App. 3d at 743. This is an evidentiary question that the trial judge must
resolve. Ferro, 361 Ill. App. 3d at 743.
In this case, Dr. Beyer testified that he has been educated in both biomechanics and
physics. Dr. Beyer testified that he relied on photographs of the vehicle with regard to the
nature and severity of the impact because that information is crucial to his opinion regarding
the causal relationship between the accident and the plaintiff's complaints. Dr. Beyer
testified that, based on his education in biomechanics and physics, it is clear from the
11
photographs that there was not a 50-mile-per-hour impact as the plaintiff suggested in the
emergency room. However, even assuming that Dr. Beyer was not qualified to give an
expert opinion regarding the severity of the impact based on the photographs, we cannot say
that the trial court abused its discretion by admitting the photographs into evidence without
expert testimony. A review of the photographs reveals that it was clear that the plaintiff was
not rear-ended at anywhere near the speed he suggested. Under these facts, the circuit court
could properly have found that the pictures, by themselves, were relevant to prove that the
matter at issue was "more or less probable." See Ferro, 361 Ill. App. 3d at 743.
The plaintiff next argues that the circuit court erred in allowing the defendant's experts
to testify that, in their opinion, the plaintiff was not injured as a result of the defendant rear-
ending him. The decision whether to admit expert testimony is within the sound discretion
of the trial court, and a ruling will not be reversed absent an abuse of that discretion. Snelson
v. Kamm, 204 Ill. 2d 1, 24 (2003). The plaintiff makes several arguments with respect to this
issue, many of which are not supported by citation to authority. First, the plaintiff argues that
the defendant failed to establish that Dr. Beyer's and Dr. Pentella's opinions were within a
reasonable degree of medical or scientific certainty. A close reading of the record reflects
that both experts so testified. Second, the plaintiff argues, without citation to authority, that
the defendant's experts' opinions were not supported by the medical records, did not reflect
a review of all the evidence, and improperly invaded the province of the jury. It has been
settled for some time that expert opinion testimony on an ultimate fact or issue does not
impermissibly intrude on the fact finder's role, as long as all of the other requirements for the
admission of the testimony are met. Zavala v. Powermatic, Inc., 167 Ill. 2d 542, 545 (1995).
The reason for this is that the trier of fact is not required to accept the expert's conclusion.
Zavala, 167 Ill. 2d at 545.
In addition, facts, data, and opinions that form the basis of the expert's opinion may
12
be developed upon cross-examination. Piano v. Davison, 157 Ill. App. 3d 649, 671 (1987).
There is a heavy burden on the cross-examiner to expose any weakness inherent in the
expert's opinion, but this burden is not excessive in light of Illinois's extensive pretrial
discovery procedures. Piano, 157 Ill. App. 3d at 671 (citing Wilson v. Clark, 84 Ill. 2d 186
(1981)). Great liberality should be allowed an expert in determining the basis of his
opinions, and the weight to be given an opinion is for the trier of fact. Piano, 157 Ill. App.
3d at 671 (citing Melecosky v. McCarthy Brothers Co., 115 Ill. 2d 209 (1986)). In this case,
the plaintiff had the opportunity to and did in fact cross-examine the defendant's experts with
regard to which evidence they had considered and which medical records were inconsistent
with their opinion. Accordingly, we reject the plaintiff's arguments that the opinions of the
defendant's experts were based on inadequate information and improperly invaded the
province of the jury.
The plaintiff's third argument with respect to the issue of whether the trial court erred
in admitting the defendant's experts' opinions that the plaintiff was not injured as a result of
the accident is that their testimony concerning the force of the impact lacked the foundation
required for novel scientific evidence. Illinois adheres to the "general acceptance" standard
established in Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923), for the admission
of novel scientific evidence. In re Commitment of Simons, 213 Ill. 2d 523, 529-30 (2004).
Initially, we note that the plaintiff never made any objection to the foundation of the
defendant's expert testimony as novel scientific evidence and never requested an evidentiary
Frye hearing before the circuit court. Accordingly, this issue was forfeited. See Snelson v.
Kamm, 204 Ill. 2d 1, 25 (2003).
Even if the plaintiff had properly preserved the Frye issue, we find that the defendant's
experts' opinions were not subject to the Frye standard because they did not constitute novel
scientific evidence. The trial court's Frye analysis is subject to de novo review. In re
13
Commitment of Simons, 213 Ill. 2d at 531. In conducting that de novo review, we may
consider not only the trial court record but also, where appropriate, sources outside the
record. In re Commitment of Simons, 213 Ill. 2d at 531. Although Illinois has not adopted
the standard enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125
L. Ed. 2d 469, 113 S. Ct. 2786 (1993), for the admission of scientific opinion testimony, the
Supreme Court's discussion regarding what constitutes "scientific knowledge" can still
inform our analysis of what constitutes scientific opinion testimony. See Harris v. Cropmate
Co., 302 Ill. App. 3d 364, 369 (1999). To qualify as "scientific knowledge," an inference or
assertion must be derived from the scientific method. Daubert, 509 U.S. at 590, 125 L. Ed.
2d at 481, 113 S. Ct. at 2795. A scientific expert is an expert who relies on the application
of scientific principles, rather than on skill or experienced-based observations, for the basis
of his opinion. Harris, 302 Ill. App. 3d at 369.
Although the defendant's experts' opinions that the plaintiff was not injured as a result
of the accident relate to science, their testimony escapes the Frye analysis because it
represents nothing more that the experts' experience and observations, combined with a
deductive process familiar to the average trier of fact. See Harris, 302 Ill. App. 3d at 370.
This is the case even if a different expert might have reached the same or a different
conclusion using some specific, advanced scientific technique, such as that of the biomedical
engineer the plaintiff refers us to in Whiting v. Coultrip, 324 Ill. App. 3d 161 (2001). See
Harris, 302 Ill. App. 3d at 370. Thus, the need for the trial court to provide a preliminary
screening to protect against the natural inclination of the jury to assign significant weight to
the scientific techniques does not exist. See Harris, 302 Ill. App. 3d at 370. Simply because
scientific principles relate to aspects of an opinion witness's testimony does not transform
that testimony into "scientific" testimony. See Harris, 302 Ill. App. 3d at 370. Accordingly,
the causation testimony of the defendant's experts did not constitute "scientific" evidence.
14
Even assuming that the methods employed by the defendant's experts constituted
scientific methods and thus fell within the realm of "scientific" evidence, we nonetheless
conclude that these methods were not "novel." Neither expert purported to have relied upon
some " '[s]trikingly new, unusual, or different' " method (Harris, 302 Ill. App. 3d at 372
(quoting American Heritage Dictionary of the English Language 898 (1975))) in reaching
his or her opinion. Unlike the expert in Whiting, who presented a biomechanical analysis of
the forces present in the accident, the defendant's experts in this case presented their opinions
based on their observations and past experiences as doctors. While the appellate court in
Whiting found no cases in Illinois and less than a handful of cases nationwide in which the
admissibility of the testimony of a biomedical engineer was considered, Illinois case law is
replete with physicians who have testified, based on observation and experience, regarding
their opinion of whether a claimant was injured. For all these reasons, the circuit court did
not err when it admitted the defendant's experts' testimony that, in their opinion, the plaintiff
was not injured as a result of the accident.
We next address the plaintiff's argument that the circuit court erred in refusing to
admit as demonstrative evidence a bumper from the same type of vehicle as that which the
plaintiff was driving due to the plaintiff's failure to produce this evidence in discovery. The
admission of evidence, as well as the decision to sanction a party for a discovery violation,
is within the circuit court's discretion, and the court’s ruling will not be reversed absent an
abuse of discretion. Clayton v. County of Cook, 346 Ill. App. 3d 367, 377 (2003) (citing Gill
v. Foster, 157 Ill. 2d 304, 312-13 (1993)). An abuse of discretion may be found only where
no reasonable person would take the view adopted by the circuit court. Clayton, 346 Ill.
App. 3d at 377. Illinois Supreme Court rules on discovery are mandatory rules of procedure
subject to strict compliance by the parties. Clayton, 346 Ill. App. 3d at 377. Parties have a
duty to seasonably supplement or amend prior answers or responses whenever new or
15
additional evidence or information subsequently becomes known to that party. 166 Ill. 2d
R. 214.
The plaintiff does not contest that the defendant's requests for production
encompassed the demonstrative evidence at issue or that he failed to produce the bumper at
the trial. The plaintiff simply argues that the trial court's sanction in refusing to admit the
evidence was an abuse of discretion. The factors used by reviewing courts to determine
whether to strike an undisclosed witness's testimony as a sanction for a violation of Illinois
Supreme Court Rule 213 (177 Ill. 2d R. 213) are instructive. These are: (1) surprise to the
adverse party, (2) the prejudicial effect of the evidence, (3) the nature of the evidence, (4) the
diligence of the adverse party, (5) whether the objection to the evidence was timely, and (6)
the good faith of the party calling the witness. Clayton, 346 Ill. App. 3d at 380. Applying
these factors to the case at bar, we conclude that the plaintiff attempted to introduce the
model bumper as demonstrative evidence of the severity of the impact required to cause
damage to it, which was a central issue in the case. The defendant had not been informed of
the plaintiff's intent to introduce this type of evidence until the trial had already commenced.
The defendant made a timely objection to the evidence, and the plaintiff gave no good-faith
explanation for his failure to produce the bumper prior to the trial. Under these
circumstances, we cannot say that the circuit court abused its discretion in refusing to admit
the bumper into evidence as a sanction for the plaintiff's discovery violation.
Next, the plaintiff argues that the circuit court erred when it refused to instruct the jury
on an increased risk of future injury as currently set forth in Illinois Pattern Jury Instructions,
Civil, Nos. 30.04.03 and 30.04.04 (2006) (hereinafter IPI Civil (2006) Nos. 30.04.03,
30.04.04). Permission to publish this instruction was granted in 2004. However, at the time
of the trial, the instruction had not yet been published in the bound volumes but was available
on the website of the Illinois Supreme Court.
16
The determination of whether to give a specific jury instruction is within the circuit
court's discretion, and that decision will not be disturbed absent an abuse of discretion.
Clayton, 346 Ill. App. 3d at 387-88. The standard for determining whether that abuse
occurred is whether the instructions given fairly stated the law without having prejudiced a
party and deprived him of a fair trial. Clayton, 346 Ill. App. 3d at 388 (citing Dillon v.
Evanston Hospital, 199 Ill. 2d 483, 505 (2002)). To justify an instruction, some evidence in
the record must support the theory. Clayton, 346 Ill. App. 3d at 388. The use of IPI Civil
(2006) Nos. 30.04.03 and 30.04.04 is only appropriate in a case where the damages claimed
are within the scope of the ruling in Dillon v. Evanston Hospital, 199 Ill. 2d 483 (2002). See
IPI Civil (2006) No. 30.04.03, Notes on Use.
The Illinois Supreme Court in Dillon held that a plaintiff is permitted to recover for
all demonstrated injuries, including the plaintiff's increased risk of future injuries. Dillon,
199 Ill. 2d at 504. The burden is on the plaintiff to prove that the defendant's negligence
increased the plaintiff's risk of future injuries. Dillon, 199 Ill. 2d at 504. In this case, the
plaintiff's expert, Dr. Fast, testified that once a patient has previously suffered an injury, that
patient will have the possibility of reinjuring that area. It is arguable whether this is
sufficient evidence of a future injury to justify the instruction. Nonetheless, it is well
established that where a defendant is found not liable, alleged errors pertaining solely to the
question of damages do not afford grounds for a reversal. Schuchman v. Stackable, 198 Ill.
App. 3d 209, 231 (1990). Here the jury was instructed that if it decided for the defendant on
the question of liability, it would have no occasion to consider the question of damages. The
jury decided for the defendant on the question of liability. Therefore, any error on the part
of the circuit court for a failure to instruct the jury on the increased risk of future injuries is
not a ground for a reversal. See Schuchman, 198 Ill. App. 3d at 231.
Finally, the plaintiff argues that the circuit court erred in admitting the testimony of
17
Trooper Connor, who testified on cross-examination that he had no independent recollection
of his investigation of the accident and was relying solely on his police report to testify. Our
review of the record reveals that, on cross-examination, Trooper Connor did admit he had
no independent recollection of the accident, even after refreshing his memory with the police
report. In addition, the report could not be read into evidence as past recollection recorded
because the defendant had not laid the foundation by having the witness testify that he had
recorded the facts at the time of the occurrence or soon afterward and that his report was
accurate and true when made. See Rigor v. Howard Liquors, Inc., 10 Ill. App. 3d 1004,
1010-11 (1973).
Although it was error for the circuit court to admit Trooper Connor's testimony, the
defendant suggests that the plaintiff waived this issue by failing to move to strike or object
to the testimony after it had been elicited that Trooper Connor had no independent
recollection and by failing to raise the issue in his posttrial motion. In order to properly
preserve an issue for an appeal, a party must both make a contemporaneous objection and
raise the issue in a posttrial motion. Kim v. Evanston Hospital, 240 Ill. App. 3d 881, 892
(1992). In addition, Supreme Court Rule 366(b)(2)(iii) provides, "A party may not urge as
error on review of the ruling on the party's post[]trial motion any point, ground, or relief not
specified in the motion." 155 Ill. 2d R. 366(b)(2)(iii). The failure to raise an issue in a
posttrial motion constitutes a waiver of that issue on appeal. Metropolitan Life Insurance Co.
v. Nauss, 226 Ill. App. 3d 1014, 1019 (1992) (citing Brown v. Decatur Memorial Hospital,
83 Ill. 2d 344 (1980)).
After carefully examining the record and the plaintiff's posttrial motion, we conclude
that the issue of whether Trooper Connor's testimony was properly admitted has been waived.
Even if the plaintiff had not waived the issue, we believe that the error was harmless. An
error in the admission of evidence does not require a reversal if there has been no prejudice
18
or if the evidence has not materially affected the outcome of the trial. DeBow v. City of East
St. Louis, 158 Ill. App. 3d 27, 44 (1987). In light of the additional competent evidence in the
record, including the photographs of the lack of damage to the vehicles and the testimony of
the defendant's experts, we cannot say that Trooper Connor's testimony materially affected
the outcome of the trial.
For the foregoing reasons, the judgment of the circuit court is affirmed.
Affirmed.
DONOVAN and WEXSTTEN 1 , JJ., concur.
1
Justice Hopkins participated in oral argument. Justice Wexstten was later substituted
on the panel and has read the briefs and listened to the audiotape of oral argument.
19
Jackson v. Seib
Combined Opinion