Davis v. Kraff

SIXTH DIVISION
October 8, 2010

No. 1-09-1181

MARLA DAVIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. ) No. 03 L 15200
)
COLMAN KRAFF and KRAFF EYE )
INSTITUTE, LTD., ) The Honorable
) Claire E. McWilliams,
Defendants-Appellees. ) Judge Presiding.

PRESIDING JUSTICE GARCIA delivered the opinion of the court.

Plaintiff Marla Davis appeals from a jury verdict in favor

of defendants Dr. Colman Kraff and the Kraff Eye Institute, Ltd.

(KEI), in her medical negligence action following two laser-

assisted in situ keratomileusis (LASIK) eye surgeries. Ms.

Davis's action was premised on the defendants' alleged failure to

inform her that she had an increased risk of nighttime vision

problems following LASIK surgery based on her claimed abnormally

large night-adjusted pupils. Ms. Davis contends she should

receive a new trial because Judge Clare E. McWilliams abused her

discretion in admitting testimony by defense experts in two

areas: (1) an expert testified that research conducted after Ms.

Davis's surgeries revealed that large night-adjusted pupils are

not predictive of post-LASIK nighttime vision problems; and (2)
No. 1-09-1181

experts opined that Ms. Davis's large night-adjusted pupils at

the time of trial were caused by her use of certain antiallergy

and antidepressant medications. We hold Judge McWilliams

properly admitted the disputed testimony by defense experts for

the express purpose of rebutting the testimony of the plaintiff's

experts as to the cause of her enlarged pupils and her ultimate

injuries. We affirm.

BACKGROUND

Plaintiff Marla Davis developed nighttime vision problems

after the defendants performed LASIK surgery on both eyes in July

1998. A second LASIK "enhancement" procedure in August 1999

sought to address the problems. In her second amended complaint,

Ms. Davis alleged that prior to the surgeries, the defendants

failed to discover that she had abnormally large night-adjusted

pupils and, as a consequence, failed to inform her that her large

dilated pupils increased the risk that she would develop

postsurgical nighttime vision problems. The trial became a

classic battle of experts.

LASIK Surgery

Dr. Martin Markowitz, an ophthalmologist and the first of

the plaintiff's experts to present testimony, outlined for the

jury in his videotaped deposition the eye's basic anatomy and how

the LASIK procedure impacts the structure. Dr. Markowitz

described the cornea as the "clear window of the eye in which a

contact lens sits." Beneath the cornea is the pupil, a space in

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No. 1-09-1181

the center of the colored portion of the eye or iris. The pupil

controls the flow of light to the retina in the back of the eye

by contracting in bright light and dilating in dim light. The

retina processes the light admitted through the pupil into an

image. In many cases of nearsightedness, the cornea improperly

refracts light, misdirecting the light to an area slightly in

front of the retina rather than squarely on its surface. LASIK

surgeons use a laser to "ablate," or dissolve, a portion of the

corneal tissue to shorten the distance between the cornea and the

retina to correct the refractive error in nearsighted patients.

When LASIK was first developed, the eye surgery lasers

available for use by ophthalmologists could only "ablate" a

section of the cornea up to five millimeters in diameter. At the

time, ophthalmologists believed that if a patient's dilated

pupils exceeded five millimeters, the patient might perceive

postsurgery glare when light strikes an untreated portion of the

cornea as it passes through the pupil to the back of the eye. By

the time of Ms. Davis's first surgery in 1998, technological

advancements expanded the diameter of eye surgery lasers to 6

millimeters, and by the time of Ms. Davis's second surgery in

1999, the laser diameter had expanded to 6½ millimeters.

LASIK Treatments

Ms. Davis testified that on July 16, 1998, she went to KEI

for a consultation. She met Dr. Kraff, who explained how LASIK

surgery works. Ms. Davis quoted Dr. Kraff as stating she "would

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be the ideal candidate for this procedure." Dr. Kraff gave Ms.

Davis a medical consent form, which she read and initialed.

Specifically, Ms. Davis initialed a paragraph that detailed

possible problems a LASIK patient might experience postsurgery:

"at night there may be a 'starbursting' or halo effect around

lights," a condition which "could be permanent." The consent

form cautioned that her postsurgical vision "may not seem as

sharp at night as during the day and that [she] may need to wear

glasses at night." The consent form also disclosed the risks of

total blindness and the loss of her eyes should rare

complications occur. Ms. Davis testified that although she

signed the form, she "wasn't willing to undergo any additional

risks for a procedure when I could see very well already." Dr.

Kraff did not inform Ms. Davis that she faced increased risks for

other possible problems. Ms. Davis could not recall whether the

diameter of her pupils was measured during the initial

consultation. Dr. Kraff scheduled Ms. Davis to undergo LASIK

surgery on both eyes six days later.

Two days prior to the surgery, Ms. Davis returned to KEI to

be examined "a little more in depth." Ms. Davis testified she

was never examined "in a room where they turned the lights down

all the way." However, according to KEI records in evidence, KEI

employee Mark Whiteside examined Ms. Davis prior to her initial

surgery and recorded the diameter of her pupils as three

millimeters in bright light and five millimeters in dim light.

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No. 1-09-1181

Dr. Kraff performed LASIK surgery on both eyes as scheduled,

using an eye surgery laser with a diameter of six millimeters. A

videotape of the surgery was played for the jury. Dr. Kraff

later testified that the videotape showed Ms. Davis's pupils

ranged in diameter from three millimeters in normal light to six

millimeters in dim light.

Ms. Davis testified that shortly after surgery she

experienced nighttime vision problems, including glare and halos

around lights, which she reported to the defendants. Dr. Kraff

informed her that such problems were to be expected during the

healing process and with time the problems would clear up.

Approximately 10 months later, Ms. Davis returned to KEI

with the same complaints of nighttime vision problems, including

"glare[,] halos[, and] starbursting." According to Ms. Davis,

Dr. Kraff again said the problems were temporary. He also gave

her a prescription for eyeglasses because the visual acuity in

her left eye remained imperfect even after the LASIK procedure.

About a month later, Ms. Davis returned to KEI because her

nighttime vision problems continued. KEI's clinical manager,

Monica Bowles Watson, testified she measured the diameter of Ms.

Davis's pupils on this visit as four millimeters in normal light

and six millimeters in dim light. To measure Ms. Davis's pupils

in dim light, Ms. Watson turned off all the lights in the exam

room, except the desk light, for 10 minutes. She then measured

the diameter of Ms. Davis's pupils by comparing them to a chart.

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No. 1-09-1181

Dr. Kraff also testified that on this visit he examined Ms. Davis

with a retinoscope, which uses a point of light directed to the

eye in dim conditions to accurately estimate the pupil's

diameter. Ms. Davis's eyes tested normal under the retinoscope.

Ms. Davis testified, however, that on June 21, 1999, Dr.

Kraff "told me that my pupils dilate larger [than normal]," and

that she was perceiving glare when her pupils dilated to a

greater diameter than the cornea area he treated in the LASIK

procedure. According to Ms. Davis, Dr. Kraff suggested that she

stop taking her anitallergy prescription medication, Allegra-D,

to "see if that helps." Dr. Kraff testified that he asked Ms.

Davis to stop using Allegra-D for a few days because a compound

in that medicine, pseudoephedrine, can cause pupils to dilate to

a larger size than normal. Ms. Davis testified she stopped

taking Allegra-D, but did not notice any improvement in her

vision. According to Ms. Davis, Dr. Kraff stated if her symptoms

did not improve he could perform "an enhancement *** that's made

for larger pupil size." She elected to have the enhanced LASIK

surgery.

On August 23, 1999, Ms. Davis met with Dr. Kraff and signed

a medical consent form identical to the form she signed for the

first LASIK surgery. That same day, KEI technician Laura Dominow

measured the diameter of Ms. Davis's pupils. To conduct the

measurement, Ms. Dominow turned off all the lights in the exam

room except for a small "can light." She recorded the diameter

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No. 1-09-1181

of Ms. Davis's pupils as four millimeters in normal light and six

millimeters in dim light.

Dr. Kraff performed the enhancement surgery on August 24,

1999, using an eye surgery laser 6½ millimeters in diameter. A

videotape of that surgery was played for the jury. Defense

expert Dr. Steven Schallhorn later testified that the videotape

showed Ms. Davis's pupils varying in diameter from "three [to]

maybe a little less than six" millimeters, depending on the

lighting conditions.

Ms. Davis testified she returned to KEI shortly after the

"enhancement" surgery and reported that she was still having

vision problems in dim lighting. She was told this was part of

the healing process and it might take up to two years for the

problems to resolve following a second LASIK procedure. Shortly

thereafter, Ms. Davis moved from Illinois.

After two years passed, with Ms. Davis continuing to

experience nighttime vision problems, she consulted three

ophthalmologists near her Cleveland, Ohio, home: Drs. Martin

Markowitz, Greg Louis, and Jack Peretz. Ms. Davis was first

examined by Dr. Markowitz. In his videotaped deposition, Dr.

Markowitz testified to his measurement of Ms. Davis's pupils.

Dr. Markowitz turned off the lights in the examination room,

except for a dim light placed behind Ms. Davis and placed a pupil

gage underneath her eyes. He found Ms. Davis's pupils dilated to

nine millimeters, which was much greater than the diameter of eye

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No. 1-09-1181

surgery lasers available in 1998 and 1999. Dr. Peretz also

measured Ms. Davis's pupils, using a procedure similar to Dr.

Markowitz's. Ms. Davis testified Dr. Peretz's examination room

was "a lot darker" than the KEI rooms where she was examined.

Dr. Peretz confirmed that Ms. Davis's dilated pupils were

abnormally large. Finally, Dr. Louis measured Ms. Davis's pupils

and also concluded that when dilated, they were abnormally large.

Ms. Davis published to the jury two photographs of herself

in dim lighting, one taken in 1995 and the other in 2008. She

testified that these photographs accurately depicted her pupils

dilating to the same size before and after her LASIK surgery.

Dr. Howard Siegel, another of Ms. Davis's experts, later

testified that Ms. Davis's pupils in the photographs were 8½

millimeters in diameter.

The parties presented expert testimony regarding the causes

of Ms. Davis's enlarged pupils and of her nighttime vision

problems. As detailed below, the defendants' experts generally

asserted that Ms. Davis's enlarged pupils, or "mydriasis," at the

time of trial were the product of her use of certain antiallergy

and antidepressant medications after her surgeries. Ms. Davis's

experts asserted that her nighttime vision problems were the

result of the defendants' LASIK surgery on a patient with

abnormally large night-adjusted pupils. According to her

experts, Ms. Davis's enlarged dilated pupils were not medication

induced.

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No. 1-09-1181

Plaintiff's Causation Experts

Dr. Markowitz gave his opinion: "If the ablation zone [of

the eye surgery laser] is smaller than what the pupil dilates

to," the patient may perceive glare or other distortions at night

following LASIK surgery.

Dr. Siegel testified that while medication-induced mydriasis

would manifest in enlarged pupils, with such mydriasis the pupil

would not dilate or contract in response to the lighting

conditions. In his examination of Ms. Davis on April 16, 2007,

and on March 27, 2008, he did not observe that condition. In

each of his examinations, he measured the diameter of Ms. Davis's

pupils in dim light as 8½ millimeters. Dr. Siegel also noted

that before the second examination, Ms. Davis stated that she was

not using antiallergy or antidepressant medications. Dr. Siegel

admitted he lacks expertise in the technical aspects of LASIK

surgery, which he does not perform. Nonetheless, he opined that

light passing through the untreated zone of Ms. Davis's cornea

into her unusually large dilated pupils caused her nighttime

vision problems.

Richard Fiscella, a registered pharmacist with a master's

degree in public health, and a professor in the departments of

pharmacy and ophthalmology at the University of Illinois at

Chicago, testified as an expert in ocular pharmacology, "the

study of medication used in the eye or effects of medication on

the eye." Professor Fiscella is a section editor of two

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No. 1-09-1181

textbooks in the field: "Clinical Ocular Pharmacology" and

"Ophthalmic Drug Facts." Professor Fiscella opined that none of

the medications Ms. Davis used, including Allegra-D, Zoloft, and

Cymbalta, cause mydriasis. Although the textbooks he edited, as

well as those relied on by the defendants' experts, discuss the

effects of general classes of drugs on pupil dilation, no

specific drug or dosage is identified. As an example, Professor

Fiscella noted that Tylenol falls in the class of drugs that

might induce mydriasis according to the textbooks, although no

report has ever connected Tylenol with mydriasis. Thus,

Professor Fiscella testified, even if a drug falls within a class

of medicines linked to mydriasis, a doctor cannot conclude with

"reasonable certainty that a particular drug in that class causes

mydriasis." To establish a causal connection between a drug and

mydriasis, a doctor would need to review case studies and reports

linking mydriasis to a specific dosage of the medicine.

Professor Fiscella added that medication-induced mydriasis

enlarges the pupil in all conditions, not just dim lighting. Ms.

Davis did not report such symptoms. On cross-examination,

Professor Fiscella admitted that he was not trained in

ophthalmology and does not perform LASIK surgery. As a

pharmacist, he never attended medical school.

Defendants' Experts

In addition to testifying as an adverse witness in Ms.

Davis's case in chief, Dr. Kraff testified in his own defense and

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No. 1-09-1181

as an expert in LASIK surgery and medications that affect the

eyes. Dr. Kraff admitted that at the time of Ms. Davis's

surgeries, he believed, as did many ophthalmologists, that

patients with abnormally large dilated pupils, such as those

between eight and nine millimeters in diameter, would have

"slightly increased risk" for developing nighttime vision

problems following LASIK surgery. Dr. Kraff conceded that

failure to inform a patient with abnormally large pupils that she

had a higher risk for nighttime vision problems before undergoing

a LASIK procedure "would have been a deviation" from the standard

of care for informed consent in 1998 and 1999.

However, Dr. Kraff insisted that Ms. Davis's pupils at the

time of trial were "measuring larger than they were in 1998 and

1999 when I saw her." It was Dr. Kraff's opinion that Ms.

Davis's pupil enlargement was caused by her after-surgery use of

the antiallergy medication Allegra-D and antidepressants Zoloft

and Cymbalta. Those medications are known as "selective

serotonin reuptake inhibitors" (SSRIs). Dr. Kraff testified that

he read a specific article describing four studies that found

SSRIs "have a clinically significant effect on pupil size."

However, Dr. Kraff admitted the patients studied in the article

were taking two to four times the amount of Zoloft that Ms. Davis

had been prescribed. For his opinion on medication-induced

mydriasis, Dr. Kraff also relied on two textbooks: "Ocular

Differential Diagnosis" and "Drug-Induced Ocular Side Effects."

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No. 1-09-1181

On cross-examination, Dr. Kraff admitted that none of the

Ohio ophthalmologists that examined Ms. Davis indicated she had

mydriasis: "They found large pupils, but they did not write down

mydriasis" in their records. He emphasized, however, that

"[m]ydriasis means a large pupil." Dr. Kraff admitted that the

LASIK procedure he performed on Ms. Davis was a "contributing

factor" in her nighttime vision problems, although in his opinion

it was not the only cause. He added that he had not personally

examined Ms. Davis since 1999.

Dr. Steven Schallhorn, a defense expert in ophthalmology and

LASIK surgery, opined that "low light pupil diameter will not

predict those patients who will have *** night vision problems,

glare, [or] halos" following LASIK. Dr. Shallhorn based his

testimony on his analysis of seven peer-reviewed studies

published after 1999, the textbook "Drug-Induced Ocular Side

Effects," the textbook "Ophthalmic Drugs Facts," for which

Professor Fiscella served as a section editor, and his own

personal observation of mydriasis related to the use of Allegra-D

in rare cases. According to Dr. Schallhorn, the theory that

pupil size is related to post-LASIK nighttime vision problems was

a "simplistic model," which improperly assumed light rays passing

through untreated portions of the cornea and pupil to the retina

caused visual problems. Instead, modern research has shown that

"light that enters through [the pupil] in the peripheral part of

the cornea when the pupil dilates, is much less likely to

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No. 1-09-1181

stimulate that central area [of the retina] and cause flare or

halos or difficulty with night vision." In Dr. Schallhorn's

opinion, more likely causes of post-LASIK nighttime vision

problems include uncorrected refractive error, dry eyes,

irregularity of the cornea, and other "high-order aberrations" in

the shape of the eye. Dr. Schallhorn testified that the

defendants' performance of LASIK surgery on Ms. Davis "[i]n all

likelihood" contributed to her nighttime vision issues, but that

the LASIK surgery "may not be the only cause."

Dr. Schallhorn admitted he never examined Ms. Davis. He

also explained that the studies he relied upon for his opinion

were not available at the time of Ms. Davis's surgeries, the

first such study was published in 2003. Dr. Schallhorn added

that Allegra-D was not a probable contributor to her nighttime

vision problems given that Ms. Davis's symptoms did not diminish

after she stopped taking Allegra-D for a few days in June 1999.

However, he believed there was a difference in the size of Ms.

Davis's dilated pupils at the time of her surgeries and her

dilated pupil size at the time of trial, which he attributed to

"the medications that she was on."

On September 3, 2008, the jury reached a general verdict in

favor of the defendants. Ms. Davis filed a posttrial motion for

a new trial, which Judge McWilliams denied. Ms. Davis timely

appeals.

ANALYSIS

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Ms. Davis contends that the circuit court committed

reversible errors by allowing defense experts to testify that

postsurgical studies called into question the purported link,

commonly accepted by ophthalmologists in 1999 and earlier,

between abnormally large dilated pupils and nighttime vision

problems, and by allowing defense experts to testify that Ms.

Davis's abnormally large dilated pupils at the time of trial were

caused by certain medications. Ms. Davis filed motions in limine

to exclude the contested expert testimony, which the circuit

court denied. Ms. Davis objected to the testimony at trial and

raised the issues in her posttrial motion, which preserved the

claimed errors for appeal. Wilbourn v. Cavalenes, 398 Ill. App.

3d 837, 855, 923 N.E.2d 937 (2010).

Standard of Review

Both of Ms. Davis's contentions concern evidentiary rulings

by the circuit court, which are subject to an abuse of discretion

review. " 'Whether a motion in limine should be granted is

subject to the trial court's discretion.' [Citation.] 'A

reviewing court will not reverse a trial court's order allowing

or excluding evidence in limine absent a clear showing of an

abuse of that discretion.' [Citation.]" Petraski v. Thedos, 382

Ill. App. 3d 22, 26, 887 N.E.2d 24 (2008). Likewise, the

decision to admit expert testimony falls within the discretion of

the trial court. Petraski, 382 Ill. App. 3d at 27. The abuse of

discretion standard is " 'the most deferential standard of review

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No. 1-09-1181

available with the exception of no review at all.' " People v.

Coleman, 183 Ill. 2d 366, 387, 701 N.E.2d 1063 (1998), quoting M.

Davis, A Basic Guide to Standards of Judicial Review, 33 S.D. L.

Rev. 469, 480 (1988). "An abuse of discretion occurs where no

reasonable person would agree with the position adopted by the

trial court." Schwartz v. Cortelloni, 177 Ill. 2d 166, 176, 685

N.E.2d 871 (1997). Thus, a "trial court cannot be said to have

abused its discretion if reasonable persons could differ as to

its decision." In re Adoption of D., 317 Ill. App. 3d 155, 160,

739 N.E.2d 109 (2000). We limit our analysis to whether the

circuit court erred in allowing the defense experts to testify

over Ms. Davis's objections at trial. If the circuit court did

not err in its rulings during trial, logic dictates that the

denial of the pretrial motions in limine could not amount to

reversible error. See Magna Trust Co. v. Illinois Central R.R.

Co., 313 Ill. App. 3d 375, 395, 728 N.E.2d 797 (2000) ("Violation

of a motion in limine is not per se reversible error").

Informed Consent Doctrine

There are four essential elements a plaintiff must prove in

a malpractice action based upon the doctrine of informed consent:

"(1) the physician had a duty to disclose material risks; (2) he

failed to disclose or inadequately disclosed those risks; (3) as

a direct and proximate result of the failure to disclose, the

patient consented to treatment she otherwise would not have

consented to; and (4) plaintiff was injured by the proposed

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treatment." Coryell v. Smith, 274 Ill. App. 3d 543, 546, 653

N.E.2d 1317 (1995). The gravamen in an informed consent case

requires the plaintiff to "point to significant undisclosed

information relating to the treatment which would have altered

her decision to undergo it." Coryell, 274 Ill. App. 3d at 546.

In the case before us, the first element was satisfied when

Dr. Kraff testified that the standard of care in 1998 and 1999

required an ophthalmologist to inform a patient with abnormally

large pupils that she had a higher risk for nighttime vision

problems before obtaining the patient's consent to undergo a

LASIK procedure. That the second element--the defendants failed

to disclose the risk of nighttime vision problems to Ms. Davis--

was satisfied is not directly challenged by the defendants.

Instead, the defendants contend that prior to each LASIK surgery,

Ms. Davis did not present abnormally large dilated pupils.

Therefore, according to the defendants, the duty to disclose the

material risk of nighttime vision problems associated with

abnormally large dilated pupils was never triggered by Ms.

Davis's dim-light pupils, which the defendants contend measured

no larger than six millimeters in diameter. The trial centered

on the third and fourth elements of the informed consent

doctrine, which each party addressed through the testimony of

their respective experts.

To simplify our review, we first note that the overall

defense asserted by the defendants is that the duty to disclose

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was never triggered by the size of Ms. Davis's dilated pupils.

This defense presented the jury with a fundamental question of

fact: did Ms. Davis present abnormally large dilated pupils prior

to each surgery? (It is uncontested that she had such a

condition when she was examined by the Ohio ophthalmologists.)

Only if the jury found Ms. Davis to have had abnormally large

dilated pupils prior to the surgeries would the jury then need to

determine the cause of her nighttime vision problems. In that

instance, the jury could render a verdict in favor of Ms. Davis

if the problems she experienced were the result of the heightened

and undisclosed risk she faced as a person with abnormally large

dilated pupils.

Third Element

To prove the third element in an informed consent case, Ms.

Davis had to persuade the jury that a "reasonable person" in her

position would have declined to undergo the LASIK surgeries had

the additional risk of nighttime vision problems based on her

claimed abnormally large dilated pupils been disclosed. " '[Only]

if *** disclosure would have caused a reasonable person in the

position of the patient to refuse the surgery or therapy[] [is] a

causal connection *** shown.' " Lisowski v. MacNeal Memorial

Hospital Ass'n, 381 Ill. App. 3d 275, 290, 885 N.E.2d 1120

(2008), quoting Schiff v. Friberg, 331 Ill. App. 3d 643, 657, 771

N.E.2d 517 (2002). In other words, Ms. Davis must present

evidence to establish a causal connection between the

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No. 1-09-1181

nondisclosure and her postoperative condition. Lisowski, 381

Ill. App. 3d at 290.

Fourth Element

To prove the fourth element in an informed consent case, the

plaintiff must demonstrate that the very risk she was uninformed

about materialized, causing her injury. Coryell, 274 Ill. App.

3d at 546. If the particular risk did not materialize, the

defendant's failure to disclose the risk, however erroneous,

cannot give rise to an actionable claim because no showing can be

made that the actual injuries suffered by the plaintiff were

caused by the treatment. See Schiff, 331 Ill. App. 3d at 657 (to

avoid a directed verdict on an informed consent claim, the

plaintiff must present some evidence that the undisclosed risk

materialized); Canesi ex rel. Canesi v. Wilson, 158 N.J. 490,

504-05, 730 A.2d 805, 812 (1999), citing Canterbury v. Spence,

464 F.2d 772, 790 (D.C. Cir. 1972); Nickell v. Gonzalez, 17 Ohio

St. 3d 136, 139, 477 N.E.2d 1145, 1148 (1985) (requiring informed

consent plaintiffs to show that "the unrevealed risks and dangers

which should have been disclosed by the physician actually

materialize[d] and [were] the proximate cause of the injury to

the patient"). Thus, the jury could attribute the nighttime

vision problems claimed by Ms. Davis to the undisclosed risk only

if it first found her claim credible that prior to the surgeries

her dilated pupils measured eight or nine millimeters. Leonardi

v. Loyola University of Chicago, 168 Ill. 2d 83, 106, 658 N.E.2d

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450 (1995) ("Without that element [of proximate cause], there

would be no case"); Coryell, 274 Ill. App. 3d at 546.

Materialized Risk

Before addressing the evidentiary rulings by the circuit

court, we first address Ms. Davis's suggestion in her main brief

that she was not required to show that the undisclosed risk ever

materialized. Relying on her reading of Schiff, Ms. Davis argues

in her main brief that an informed-consent plaintiff need not

"explain[] the precise mechanism of injury tracing the

etiological link between the defendants' actions and the

plaintiff's injury."

In Schiff, the plaintiff underwent an emergency colostomy

when her bowel perforated during laparoscopic surgery performed

by the defendant. Schiff, 331 Ill. App. 3d at 647. The

defendant testified that bowel perforations were caused by pre-

existing diverticula on the colon that may have ruptured during

the surgery. Schiff, 331 Ill. App. 3d at 651, 654-55. The

defendant asserted on appeal "that the trial court's denial of a

directed verdict on the informed consent count constituted

error." Schiff, 331 Ill. App. 3d at 656-57. The defendant

claimed "that there was 'no evidence that the bowel was injured

by a needle, a trocar, or other instruments' " used by the

defendant during the surgical procedure. Schiff, 331 Ill. App.

3d at 657. In the absence of such evidence, " 'neither the

specific risk of injury as a consequence of perforation by an

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instrument nor the "increased risk" from adhesions never [sic]

materialized.' " Schiff, 331 Ill. App. 3d at 657. In other

words, the plaintiff failed to establish "that her injury was

caused by the risk of puncture by surgical instrumentation."

Schiff, 331 Ill. App. 3d at 657.

The Schiff court explained that a directed verdict would lie

only if the plaintiff failed to establish a prima facie case on

the informed consent count. Schiff, 331 Ill. App. 3d at 657. By

definition, a prima facie case is established by the presentation

of "some evidence on every element essential to [the plaintiff's]

cause of action." Kokinis v. Kotrich, 81 Ill. 2d 151, 154, 407

N.E.2d 43 (1980). The Schiff court found the testimony of the

plaintiff's expert provided the evidentiary support that the

undisclosed risk materialized sufficient to establish a prima

facie case. The expert was asked " 'whether, in fact, the

perforations were caused by [the defendant doctor's] use of the

various instruments during [the plaintiff's] laparoscopic

procedure.' " Schiff, 331 Ill. App. 3d at 652. The expert

answered, " 'Certainly caused by something that happened during

the laparoscopic procedure, yes.' " Schiff, 331 Ill. App. 3d at

652. We ruled the circuit court properly allowed the jury to

render a verdict on the informed consent count because the

plaintiff had made out a prima facie case of negligence. Schiff,

331 Ill. App. 3d at 657-58. Contrary to Ms. Davis's claim that

Schiff stands for the proposition that an informed consent

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plaintiff need not prove that the undisclosed risk materialized,

Schiff stands for the simple proposition that once a prima facie

case is made out, it falls to the jury, as finders of fact, to

assess the "credibility of witnesses and *** [resolve the]

conflicting evidence." Schiff, 331 Ill. App. 3d at 658.

It remained Ms. Davis's burden to prove each of the elements

in her informed consent case. Nolan v. Weil-McLain, 233 Ill.2d

416, 430, 910 N.E.2d 549 (2009) ("a plaintiff bears the burden of

producing evidence sufficient to establish each element of the

claim"); Coryell, 274 Ill. App. 3d at 546. The corollary to this

legal proposition is that the defendants were free to challenge

the evidence Ms. Davis marshaled on the third and fourth elements

of her claim with relevant evidence of their own. Leonardi, 168

Ill. 2d at 101 ("A defendant has the right *** to rebut evidence

tending to show that defendant's acts are negligent ***").

Postsurgery Medical Studies

Ms. Davis first contends that the circuit court committed

reversible error in allowing Dr. Schallhorn to testify regarding

medical studies, the first of which was published in 2003. The

studies found that abnormally large dilated pupils were not

predictive of nighttime vision problems. Ms. Davis contends that

her medical negligence action based on the doctrine of informed

consent should not turn on medical studies that postdate her

surgeries in 1998 and 1999. She argues that these postsurgery

studies might lead the jury to dilute the standard of care the

21
No. 1-09-1181

defendants were required to meet to fully inform Ms. Davis of the

risks she faced in the surgeries. To support her argument, Ms.

Davis quotes from a construction negligence case: "Postevent

literature cannot be used to show the standard of care." Gray v.

National Restoration Systems, Inc., 354 Ill. App. 3d 345, 360,

820 N.E.2d 943 (2004). While Ms. Davis's statement of law is

accurate, the circuit court's ruling here did not violate the

rule of law she quotes.

In the case before us, the circuit court ruled that

testimony concerning postsurgical literature was a proper means

of challenging Ms. Davis's evidence that she was injured by the

LASIK surgeries. See Bergman v. Kelsey, 375 Ill. App. 3d 612,

631-32, 873 N.E.2d 486 (2007) (postevent medical literature

admissible if not used "to show the standard of care"). Dr.

Markowitz opined that "[i]f the ablation zone [of the eye surgery

laser] is smaller than what the pupil dilates to," the patient

may perceive glare or other distortions at night following the

surgery. Dr. Louis testified that the large size of Ms. Davis's

dilated pupils were the cause of her nighttime vision problems.

Dr. Siegel opined that light passing through the untreated zone

of Ms. Davis's cornea into her unusually large dilated pupils

caused her nighttime vision problems. The circuit court admitted

Dr. Schallhorn's testimony concerning postsurgical literature to

directly challenge these opinions. The postsurgical studies

testimony did not pertain to the standard of care in 1998 and

22
No. 1-09-1181

1999, which Dr. Kraff conceded required an ophthalmologist to

disclose the increased risk of nighttime vision problems to a

patient with large dilated pupils.

Dr. Schallhorn's testimony regarding the postsurgery studies

constituted relevant evidence that Ms. Davis's nighttime vision

problems were not the result of her dilated pupils exceeding the

zone of the largest eye surgery laser available in 1998 and 1999.

Dr. Schallhorn testified that "low light pupil diameter will not

predict those [LASIK] patients who will have *** night vision

problems," problems he attributed to uncorrected refractive

error, dry eyes, corneal irregularity, and other "high-order

aberrations." Stated in terms of the fourth element of Ms.

Davis's informed consent case, the defendants introduced this

evidence to support their contention that Ms. Davis was not

"injured" by the LASIK surgery even if her dilated pupils

measured eight or nine millimeters at the time of the surgeries,

which the defendants' evidence disputed. See Coryell, 274 Ill.

App. 3d at 546. The postsurgery studies called into question the

generally held belief among ophthalmologists in 1999--a belief

apparently held by the plaintiff's experts at the time of trial--

that light striking an untreated portion of the cornea as the

light passes through the pupil to the retina causes post-LASIK

glare, the precise injury claimed by Ms. Davis.

We also agree with the circuit court that Ms. Davis's

23
No. 1-09-1181

concern that the jury might misapply the testimony amounts to no

more than speculation, as Ms. Davis cannot demonstrate that the

jury did in fact erroneously rely on such evidence to undermine

the standard of care that prevailed in 1998 and 1999. See

Eizerman v. Behn, 9 Ill. App. 2d 263, 279-80, 132 N.E.2d 788

(1956) ("evidence *** competent for one purpose does not become

incompetent because the jury might improperly consider it in some

other capacity for which it could not properly be admitted").

The opposing party must request a limiting instruction or forfeit

the issue. Eizerman, 9 Ill. App. 2d at 280 (if the opponent to

such evidence fails to request a limiting instruction, "he is

deemed to have waived any objection he may have").

The circuit court acted within its discretion in ruling Dr.

Schallhorn's testimony, regarding the studies published after Ms.

Davis's surgery, probative on the disputed elements of the

plaintiff's informed consent theory.

Medication-Induced Mydriasis

Ms. Davis contends the circuit court committed a second

reversible error in rejecting her objections at trial to the

opinions of Drs. Kraff and Schallhorn that her mydriasis

(enlarged pupil size) was caused by her use of certain

antiallergy and antidepressants following surgery. Ms. Davis

challenges the circuit court's ruling on four grounds.

First, Ms. Davis argues that the opinions of Drs. Kraff and

24
No. 1-09-1181

Schallhorn connecting medication with her large pupil size are

grounded on conjecture and speculation because no evidentiary

basis exists to support the opinions. "[A]n expert's opinions

and conclusions are still subject to the fundamental requirement

that they have some evidentiary basis." Simers v. Bickers, 260

Ill. App. 3d 406, 411, 632 N.E.2d 219 (1994). "When the opinion

of an expert is totally lacking in factual support it is nothing

more than conjecture and guess and should not be admitted as

evidence." Harris Trust & Savings Bank v. Otis Elevator Co., 297

Ill. App. 3d 383, 393, 696 N.E.2d 697 (1998).

To support her contention, Ms. Davis marshals the testimony

of her experts as to the size of her dilated pupils to

demonstrate a lack of evidentiary basis for the opinions of the

defendants' experts. Ms. Davis jumps from the uncontested fact

that her pupils measured abnormally large when she was examined

by the Ohio ophthalmologists, between eight and nine millimeters

in diameter, to her claim that her pupils were abnormally large

in dim lighting prior to the surgeries, a contention supported by

a photograph taken prior to her surgeries apparently showing that

she had large dilated pupils in 1995.

The problem with Ms. Davis's claim is that the jury also had

before it testimony by KEI employees that Ms. Davis's pupil

diameter measured five millimeters in dim light before her first

surgery and six millimeters in dim light before her second

25
No. 1-09-1181

surgery. The jury was also shown the videotapes of each LASIK

surgery. Dr. Kraff testified that the videotape of Ms. Davis's

first LASIK surgery showed Ms. Davis's pupils measured six

millimeters in dim light. Dr. Schallhorn testified that the

videotape of Ms. Davis's second LASIK surgery showed Ms. Davis's

pupils varying in diameter from "three [to] maybe a little less

than six" millimeters, depending on the lighting conditions.

We are aware of no authority that the defendants' evidence,

directly contradicting Ms. Davis's claim that she had abnormally

large dilated pupils prior to her surgeries, can somehow be

disregarded in assessing the evidentiary support of the expert

testimony introduced at trial. As we pointed out above, if the

jury determined that Ms. Davis's dilated pupils measured no

greater than six millimeters presurgeries, consistent with the

defendants' contentions, then the entirety of Ms. Davis's

informed consent claim necessarily failed. See Leonardi, 168

Ill. 2d at 106 ("Without that element [of proximate cause], there

would be no case"). Ms. Davis would simply not fall within the

group of LASIK patients that had a greater risk of nighttime

vision problems if her dilated pupils did not exceed the zone of

coverage of the eye surgery lasers available in 1998 and 1999.

Ms. Davis's reliance on this court's ruling in Simers for

support that the opinions of Drs. Schollhorn and Kraff were based

on "conjecture and speculation" is simply misguided. In Simers,

26
No. 1-09-1181

the defendant fitted the plaintiff with a pair of soft contact

lenses. Simers, 260 Ill. App. 3d at 408. Following the fitting,

the plaintiff complained of dry, itchy eyes, which the defendant

treated with eye drops, stressing the importance of disinfecting

the lenses after use. Simers, 260 Ill. App. 3d at 408. The

plaintiff continued to experience eye problems, which caused her

to be seen by numerous other eye professionals. Simers, 260 Ill.

App. 3d at 408. Her problems worsened to the point that she was

hospitalized with symptoms of near blindness. Simers, 260 Ill.

App. 3d at 409. The plaintiff sued, contending her vision

problems were caused by the negligent fitting of the contact lens

by the defendant. Simers, 260 Ill. App. 3d at 410-11. The

defendant's expert testified that the plaintiff's vision problems

were caused by an infection, which developed from improper

cleaning of the contact lens by the plaintiff. Simers, 260 Ill.

App. 3d at 410-11. He testified his opinion was based on the

hospital records, the depositions of the treating doctors, and

photographs of the plaintiff's eyes. Simers, 260 Ill. App. 3d at

412. The jury returned a verdict in the defendant's favor.

Simers, 260 Ill. App. 3d at 407. The Simers court reversed.

Based on the definition of conjecture as "a conclusion based

on assumption not in evidence or contradicted by the evidence"

(Simers, 260 Ill. App. 3d at 412, citing Nelson v. Speed

Fastener, Inc., 101 Ill. App. 3d 539, 428 N.E.2d 495 (1981)), the

27
No. 1-09-1181

court held there was "no factual, scientific or expert evidence

to support" the defense expert's opinion that the plaintiff's

vision problems were infection-based when the record was barren

of any evidence of bacteria in the culture of the cleaning

solution the plaintiff used to care for her contact lens.

Simers, 260 Ill. App. 3d at 412. In the absence of any evidence

to support the defense expert's opinion "that plaintiff's eyes

were infected due to her own lack of proper cleaning," the

opinion was conjecture. Simers, 260 Ill. App. 3d at 413. As

conjecture, the expert's opinion should never have been admitted

at trial. See Harris Trust, 297 Ill. App. 3d at 393 ("When the

opinion of an expert is totally lacking in factual support it is

nothing more than conjecture and guess and should not be admitted

as evidence").

In the instant case, that Drs. Schollhorn and Kraff

testified that Ms. Davis's enlarged dilated pupils at the time of

trial may have been caused by certain medications she was taking

was not a concession that Ms. Davis's pupils dilated to eight or

nine millimeters prior to the surgeries. The evidence conflicted

as to the size of Ms. Davis's dilated pupils prior to each

surgery. The conflict in the evidence as to Ms. Davis's dilated

pupil size prior to surgery provided evidentiary support for the

explanation offered by the defendants that Ms. Davis's abnormally

sized dilated pupils as testified to at trial were medication-

28
No. 1-09-1181

induced. Consistent with this contention, Ms. Davis testified

that following her surgeries she had been prescribed a class of

drugs that the defendants' experts linked to enlarged pupils.

Drs. Schollhorn and Kraff relied on scientific evidence,

including authoritative textbooks and their own experience to

offer the explanation that Ms. Davis's enlarged pupils at the

time of trial were medication related. The experts were

thoroughly cross-examined on their opinions; we are aware of no

authority that dictates that their opinions could not be

considered by the jury.

On the record before us, we find an evidentiary basis for

the conflicting opinions of the experts offered by both sides.

We reject Ms. Davis's claim that the opinions of the defendants'

experts were based on speculation and conjecture. See Harris

Trust, 297 Ill. App. 3d at 393-94 (trial court erred in directing

a verdict when record evidence minimally supported claim of

direct negligence against elevator company based on a reasonable

inference that an employee manipulated controls to allow elevator

to operate in an unsafe condition); Lisowski, 381 Ill. App. 3d at

289 (when patient's state of mind at time consent given for

surgical procedure is disputed, it falls to the jury to resolve

the dispute); Bergman, 375 Ill. App. 3d at 625-26 (it is within

the province of the jury to resolve evidentiary conflicts).

Second, Ms. Davis claims that the opinions should have been

29
No. 1-09-1181

excluded because Dr. Kraff's opinion is contradicted by his own

testimony that he personally ruled out medication-induced

mydriasis as a diagnosis after Ms. Davis's symptoms did not

improve when he told her to stop using Allegra-D in June 1999.

Ms. Davis, however, fails to set out the testimony by Dr. Kraff

that purportedly contradicts his opinion to support her

contention. Our review of the record reveals no such testimony

by Dr. Kraff.

Dr. Kraff never diagnosed Ms. Davis with mydriasis,

medication-induced or not. As we noted, according to the

defendants' records, Ms. Davis's dim-light pupils never exceeded

six millimeters presurgery. To rebut the inference from the

plaintiff's experts that Ms. Davis likely had abnormally large

dilated pupils prior to her surgeries, Dr. Kraff testified that

several prescriptions, not limited to Allegra-D, could have

caused Ms. Davis's later mydriasis. Even if Dr. Kraff had ruled

out Allegra-D as a cause of her nighttime vision problems after

she claimed to have stopped taking it for several days, no

testimony is quoted that he ruled out the additional prescription

drugs Ms. Davis was taking, including Zoloft and Cymbalta.

There is also no basis to discount the testimony of Dr.

Schallhorn and Dr. Kraff simply because neither examined Ms.

Davis after 1999. As experts, their opinions were based upon Ms.

Davis's medical history, review of authoritative textbooks and

30
No. 1-09-1181

studies, and personal experience. It is unfair to characterize

their testimony as conjecture based on the absence of an

examination of Ms. Davis near the date of her trial when she

fails to provide us with direct authority to support that claim.

Drs. Schallhorn and Kraff did not rely on implied facts not

present in the medical records to reach their opinions (see

Coffey v. Brodsky, 165 Ill. App. 3d 14, 25, 518 N.E.2d 638

(1987)); nor did they base their opinions on their own later

investigations when circumstances may have changed (see Dyback v.

Weber, 114 Ill. 2d 232, 244-45, 500 N.E.2d 8 (1986)). Their

opinions had adequate factual and scientific bases; the

defendants were entitled to present them to the jury.

Ms. Davis also seeks to make much of the absence of a

diagnosis of mydriasis by her three Ohio ophthalmologists or Dr.

Siegel. We find no basis to question Dr. Kraff's assertion that

mydriasis merely describes an enlarged dilated pupil, a condition

the four doctors noted present in Ms. Davis after 1999 and in the

1995 photograph. That no diagnosis of medication-induced

mydriasis was made simply reflects a difference of opinion

concerning the cause of her enlarged pupils, not the absence of

evidentiary support for the opinions of the defense experts

simply because they are contrary to the opinions of the

plaintiff's experts. The disagreement over the cause of Ms.

Davis's enlarged pupils, or mydriasis, was for the jury to

31
No. 1-09-1181

resolve. Lisowski, 381 Ill. App. 3d at 289; Bergman, 375 Ill.

App. 3d at 625-26.

Third, Ms. Davis contends that the opinions of Drs.

Schallhorn and Kraff improperly relied upon general pharmacy

texts. Our reading of the record reflects that the general

pharmacy texts were not the only bases for the offered opinions.

Dr. Schallhorn testified that his opinion was additionally based

upon his own experience of medication-induced mydriasis in rare

cases. Dr. Kraff testified that his opinion was additionally

based upon a specific article linking large pupils with certain

medications Ms. Davis was using.

Professor Fiscella testified that the general language in

the texts called into question whether medication-induced

mydriasis could be linked to a specific drug. The testimony of

Drs. Schallhorn and Kraff sought to establish such a link with

the drugs Ms. Davis had taken postsurgery. It then fell to Ms.

Davis "to challenge the sufficiency or reliability of the basis

for the expert's opinion during cross-examination, and[, if the

opinions are not excluded,] the determination of the weight to be

given the expert's opinion is left to the finder of fact." Adams

v. Family Planning Associates Medical Group, Inc., 315 Ill. App.

3d 533, 550, 733 N.E.2d 766 (2000). While Ms. Davis may have

effectively challenged the opinions of the defense experts

through the testimony of her own experts (Adams, 315 Ill. App. 3d

32
No. 1-09-1181

at 550), it was the province of the jury to resolve this battle

between the experts. Lisowski, 381 Ill. App. 3d at 289; Bergman,

375 Ill. App. 3d at 625-26.

Finally, Ms. Davis argues that neither Dr. Kraff nor Dr.

Schallhorn was qualified to give an opinion regarding medication-

induced mydriasis. "Expert testimony is admissible if the

proffered expert is qualified by knowledge, skill, experience,

training, or education, and the testimony will assist the trier

of fact in understanding the evidence." Snelson v. Kamm, 204

Ill. 2d 1, 24 (2003). As for medical experts, "the physician

must be a licensed member of the school of medicine about which

he proposes to testify" and must be " 'familiar with the methods,

procedures, and treatments ordinarily observed by other

physicians.' " Jones v. O'Young, 154 Ill. 2d 39, 43, 607 N.E.2d

224 (1992), quoting Purtill v. Hess, 111 Ill. 2d 229, 243 (1986).

Ms. Davis essentially argues that Drs. Kraff and Schallhorn,

as ophthalmologists, were not competent to offer opinions

concerning the effects of medications on the pupils because their

specialty fell outside the fields of pharmacy or pharmacology, a

new twist on her third basis to exclude the defense opinions.

The "same school of medicine rule" requires only that an expert

be licensed in the same field to give testimony on the medical

negligence standard of care. Ruffin v. Boler, 384 Ill. App. 3d

7, 19, 890 N.E.2d 1174 (2008). As we made clear above, the

33
No. 1-09-1181

standard of care was not disputed by the defendants; nor were the

opinions of Dr. Kraff and Dr. Schallhorn introduced for that

purpose. The "same school of medicine rule" does not apply to a

defense expert's testimony that addresses only the causation and

injury issues. Ruffin, 384 Ill. App. 3d at 19 ("The restriction

as to who may serve as an expert applies to testimony 'concerning

the standard of care' " (emphasis in original), quoting Greenburg

v. Michael Reese Hospital, 83 Ill. 2d 282, 291-92, 415 N.E.2d 390

(1980)).

We also note Ms. Davis sued an ophthalmologist; we are aware

of no authority that prevents an ophthalmologist from giving an

opinion in a suit against an ophthalmologist. See Schiff, 331

Ill. App. 3d at 658 (claim rejected that plaintiff's medical

expert with "board certification in gynecology" not qualified to

testify against medical defendant with "board certification in

gynecology, reproductive endocrinology and fertility"). As the

defendants emphasize in their brief, Ms. Davis seems to suggest

that no medical doctor is competent to testify to the side

effects of medications even though they are licensed to write

prescriptions. Such a rule would be unprecedented.

We reject each of Ms. Davis's arguments that the opinions of

the defense experts should have been excluded from the jury as to

medication-induced mydriasis.

General Verdict

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No. 1-09-1181

In addressing each of the issues raised on appeal by Ms.

Davis, we found no error in the circuit court's rulings. We

nonetheless point out that even if we were to rule that the

circuit court erred in admitting the defense experts' testimony,

neither separately nor in combination would the errors be

reversible. Each alleged error could have been meaningless. See

Tabe v. Ausman, 388 Ill. App. 3d 398, 404-05, 902 N.E.2d 1153

(2009) ("The jury's analysis here might well have concluded with

a verdict in favor of the defendant doctors without reaching the

[disputed] element ***").

The jury may well have decided that the defendants

accurately measured Ms. Davis's dim-light pupils prior to each

surgery at no more than six millimeters. Such a factual finding

by the jury would preclude the necessary foundation to trigger

the defendants' duty to disclose the material risk based on

abnormally large dilated pupils because Ms. Davis presented dim-

light pupils within the normal range in 1998 and 1999. If Ms.

Davis had dim-light pupils within the normal range, as the

defense evidence tended to show, then Ms. Davis never actually

faced the material risk she claimed the defendants failed to

disclose to her and could not have been injured by the LASIK

procedures. See Coryell, 274 Ill. App. 3d at 546. Without a

special interrogatory that reveals the jury's findings on this

dispositive factual issue, our review of the jury's general

35
No. 1-09-1181

verdict is foreclosed. "[If] the mental processes of the jury

have not been tested by special interrogatories to indicate which

of the [multiple] issues was resolved in favor of the successful

party, it will be presumed that all issues were so determined

***.' " Strino v. Premier Healthcare Associates, P.C., 365 Ill.

App. 3d 895, 904, 850 N.E.2d 221 (2006), quoting H.E. Culbertson

Co. v. Warden, 123 Ohio St. 297, 303, 175 N.E. 205, 207 (1931).

CONCLUSION

As commonly happens in a medical malpractice case, the

persuasiveness of Ms. Davis's action boiled down to which of the

opposing experts persuaded the jury. In the course of allowing

the defendants to challenge the disputed elements of the

plaintiff's informed consent case, the circuit court properly

admitted the testimony of the defendants' expert on postevent

studies and medication-induced mydriasis over the numerous

objections by Ms. Davis. The circuit court properly admitted

such relevant testimony to assist the jury in reaching a fair

verdict. We find no grounds to grant Ms. Davis a new trial.

Affirmed.

CAHILL and MCBRIDE, JJ., concur.

36
No. 1-09-1181

REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
_________________________________________________________________

MARLA DAVIS,
Plaintiff-Appellant,
v.
COLMAN KRAFF and KRAFF EYE INSTITUTE, LTD.,
Defendants-Appellees.

________________________________________________________________

No. 1-09-1181

Appellate Court of Illinois
First District, First Division

Filed: October 8, 2010
_________________________________________________________________

JUSTICE GARCIA delivered the opinion of the court.

CAHILL and MCBRIDE, JJ., concur.
_________________________________________________________________

Appeal from the Circuit Court of Cook County
Clare E. McWilliams, Judge Presiding
_________________________________________________________________

For PLAINTIFF- STEINBERG, GOODMAN & KALISH
APPELLANT Bruce D. Goodman
Peter M. Dapier
Bradley D. Steinberg
20 North Clark Street, 31st Floor
Chicago, Illinois 60602

For DEFENDANTS- DONOHUE, BROWN, MATHEWSON & SMYTH, LLC
APPELLEES Richard B. Foster
Karen Kies DeGrand
Timothy L. Hogan
140 South Dearborn Street, Suite 800
Chicago, Illinois 60603

37