First Midwest Bank v. Rossi

2023 IL App (4th) 220643, 237 N.E.3d 566

• Court: Appellate Court of Illinois
• Decided: July 14, 2023
• Docket: 4-22-0643
• Status: Published

Opinion

2023 IL App (4th) 220643 FILED July 14, 2023 NOS. 4-22-0643, 4-22-0645 cons. Carla Bender 4th District Appellate IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

FIRST MIDWEST BANK, Administrator of the Estate of ) Appeal from the Cynthia Overstreet, ) Circuit Court of Plaintiff-Appellant and Cross-Appellee, ) Winnebago County v. ) No. 12L58. THOMAS ROSSI, M.D., and THE PEORIA SURGICAL ) GROUP, LTD., ) Honorable Defendants-Appellees and Cross- ) Donna R. Honzel, Appellant. ) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Presiding Justice DeArmond and Justice Harris concurred in the judgment and opinion.

OPINION ¶1 In October 2007, defendant, Thomas Rossi, M.D., performed gastric bypass

surgery on Cynthia Overstreet (Cindy). In March 2021, plaintiff, First Midwest Bank, as

Administrator of the Estate of Cynthia Overstreet (the Estate), filed a complaint for negligence

against Rossi. The complaint also named as defendant the Peoria Surgical Group, Ltd., of which

Rossi was a member, based upon a claim of vicarious liability. (Hereinafter, we refer to the

defendants collectively as “Rossi.”) In addition to other damages requested, the complaint

requested damages for Cindy’s disfigurement and for loss of society to Cindy’s son, Anthony

Fry (Tony).

¶2 The complaint alleged, among other things, that, as part of the postoperative

treatment, Rossi prescribed Cindy various nutritional supplements, including a vitamin B-complex supplement. Following the surgery, Cindy complained of vomiting and nausea and

was hospitalized in December 2007 with neurological symptoms.

¶3 Several days after being hospitalized, Cindy went into a coma from which she

never recovered. She died seven years later in 2014. The undisputed cause of Cindy’s coma and

death was Wernicke’s encephalopathy (Wernicke’s)—a condition resulting from vitamin B-1

(thiamine) deficiency that causes swelling in the brain.

¶4 In September 2021, a jury found Rossi liable for negligence and awarded the

Estate damages for (1) lost wages, (2) medical bills, (3) loss of a normal life, and (4) grief,

sorrow, and mental suffering. The jury did not award any damages for Tony’s loss of society,

and the trial court did not instruct the jury that it could award damages based upon Cindy’s

disfigurement.

¶5 The parties filed multiple posttrial motions. Ultimately, the trial court (1) reduced

the Estate’s damage award for medical expenses written off by health care providers, pursuant to

section 2-1205 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1205 (West 2020)),

(2) granted the Estate prejudgment interest on the damages, pursuant to section 2-1303(c) of the

Code (id. § 2-1303(c) (West Supp. 2021)), and (3) denied the parties’ motions for new trial. The

parties filed cross appeals.

¶6 The Estate appeals, arguing as follows:

¶7 First, the Estate argues that the trial court erred by failing to instruct the jury on

disfigurement. Specifically, the Estate asserts the court erroneously concluded that evidence of

awareness was required for an instruction on disfigurement to be given. Because we agree with

the trial court’s analysis and conclusion, we affirm the trial court’s decision.

-2- ¶8 Second, the Estate argues that because the jury’s failure to award damages to

Tony for loss of society was against the manifest weight of the evidence, the trial court erred by

denying the Estate’s motion for new trial. We disagree and affirm the trial court’s decision.

¶9 Third, the Estate argues that the trial court erred by reducing the judgment under

section 2-1205 of the Code because medical expenses that had been written off by the health care

providers did not qualify for reduction. We agree with the Estate and reverse the trial court’s

decision.

¶ 10 Rossi cross-appeals and argues the following:

¶ 11 First, Rossi argues that the trial court erred by denying his motion for a new trial

in which he alleged he was unfairly prejudiced by what he claims was the admission of lay

testimony regarding the standard of care. Specifically, Rossi contends that the Estate presented

prejudicial testimony from Cindy’s sister regarding a medical article that she found online about

Wernicke’s, which, in part, resulted in Cindy’s being treated for Wernicke’s. Because the record

shows that testimony did not prejudice Rossi, we affirm the trial court’s decision denying Rossi’s

motion for new trial.

¶ 12 Second, Rossi argues that the award of prejudgment interest should be vacated as

unconstitutional. In particular, Rossi contends that the prejudgment interest statute (id. § 2-1303)

is unconstitutional because it (1) interferes with the fundamental right to a trial by jury and the

jury’s determination of damages, (2) violates due process by providing for double recovery and

interfering with vested rights, (3) constitutes impermissible special legislation under the Illinois

Constitution, (4) violates equal protection, and (5) was passed in violation of the three-readings

rule. We disagree and affirm the award of prejudgment interest.

-3- ¶ 13 Accordingly, we affirm in part, reverse in part, and remand with directions that

the trial court reduce the judgment pursuant to section 2-1205 of the Code consistent with this

opinion.

¶ 14 I. BACKGROUND

¶ 15 A. The Complaint

¶ 16 In March 2014, the Estate filed its initial complaint with the trial court, which it

amended multiple times before trial. The Estate’s amended complaint alleged negligence against

Rossi on behalf of (1) the Estate and (2) Cindy’s son Tony, under the Wrongful Death Act (740

ILCS 180/2 (West 2020)). Those counts included claims for Cindy’s disfigurement and Tony’s

loss of society.

¶ 17 The complaint alleged generally that Rossi, a bariatric surgeon, breached his duty

of care to Cindy by failing to identify and treat Cindy’s thiamine deficiency, causing her to

become comatose. Specifically, the complaint alleged that the standard of care for a bariatric

surgeon in 2007 required Rossi (1) to know the risk of thiamine deficiency and Wernicke’s

following bariatric surgery, (2) to administer intravenous thiamine rather than thiamine pills

while Cindy was experiencing chronic nausea and vomiting, and (3) to coordinate care of Cindy

with doctors at OSF St. Anthony Medical Center in Rockford, Illinois (OSF Rockford)—the city

where Cindy resided. (We note that the original complaint also named other defendants in

addition to Rossi, but those allegations were dismissed in April 2019 after settlement.)

¶ 18 B. The Trial

¶ 19 In September 2021, the trial court conducted a jury trial.

¶ 20 1. General Summary of Events

-4- ¶ 21 The evidence presented at trial generally shows that on October 11, 2007, Rossi

performed gastric bypass surgery on Cindy at OSF St. Francis Medical Center (OSF Peoria),

located in Peoria, Illinois, reducing the size of her stomach from “over a couple hundred ounces”

to “about an ounce and a half.” Because the surgery reduced Cindy’s ability to consume food and

absorb nutrients, Rossi prescribed Cindy oral vitamins to guard against vitamin deficiencies. One

of the supplements he prescribed was a supplement of B-complex vitamins containing thiamine.

¶ 22 On October 31, 2007, Cindy called Rossi to tell him that she was experiencing

nausea and vomiting that caused her to have difficulty eating and drinking.

¶ 23 On November 4, 2007, Cindy was admitted to the emergency room at OSF

Rockford, complaining of nausea and vomiting. She was released to go home that same day.

¶ 24 On November 6, 2007, following an office visit in Peoria with Rossi, Cindy was

admitted to OSF Peoria for dehydration. She was later released that same day. From November

9, 2007, through November 13, 2007, Cindy was again hospitalized at OSF Peoria for nausea

and vomiting.

¶ 25 On November 20, 2007, Cindy visited her primary care physician in Rockford,

who recommended that if her vomiting continued, she should go to the emergency room. Three

days later, on November 23, 2007, Cindy went to the OSF Rockford emergency room,

complaining of nausea and vomiting. Cindy was admitted to the hospital for nine days and

released on December 3, 2007.

¶ 26 On December 7, 2007, and December 10, 2007, Cindy called Rossi’s office to

report that she was suffering from nausea and dry heaves. On December 11, 2007, Cindy’s

mother drove Cindy to Rossi’s office in Peoria because Cindy’s symptoms continued to worsen.

-5- That same day, Rossi admitted Cindy to OSF Peoria, where she remained until she was

discharged on December 13, 2007.

¶ 27 On December 20, 2007, Cindy’s mother called Rossi’s office to report that

(1) Cindy had “altered consciousness” and could barely walk and (2) they were headed to the

emergency room at OSF Rockford. Cindy was admitted that same day. By December 24, 2007,

Cindy became comatose and remained in that state until her death in 2014.

¶ 28 Even though Cindy received intravenous fluids during her multiple visits to OSF

Peoria, Rossi prescribed Cindy only oral vitamins and never administered intravenous thiamine

throughout Cindy’s postoperative care.

¶ 29 After Cindy went into a coma at OSF Rockford, her sister, Sandy Tyman, on

December 27, 2007, found online an article titled, “Wernicke’s Encephalopathy in a Patient

After Gastric Bypass Surgery,” which Cindy’s mother later presented to physicians at OSF

Rockford. After receiving the article, the physicians began treating Cindy with intravenous

thiamine.

¶ 30 Nonetheless, Cindy never awakened from her coma, dying seven years later in

July 2014, at the age of 37. Cindy was survived by Tony, who was 22 years old at the time of

trial in September 2021. The parties do not dispute that the cause of Cindy’s death was

Wernicke’s. The parties also do not dispute that if Cindy been treated with intravenous thiamine

while she was still conscious, she would not have become comatose.

¶ 31 2. The Evidence and Trial Proceedings Related to the Standard of Care

¶ 32 a. Rossi’s Motion in Limine

¶ 33 During trial, Rossi moved to bar the Estate from eliciting any medical testimony

from lay witnesses, which the trial court granted without objection. Soon after, Rossi learned that

-6- the Estate intended to elicit testimony from Tyman regarding the article she found online, and

Rossi moved to bar that testimony because it would imply that if a lay person could easily

discover the article, then Rossi should have been aware of the article, given his education and

expertise. (We note that the inclusion of testimony from Cindy’s sister and mother in this section

is not meant to imply our agreement with Rossi regarding whether the evidence of the article

went towards the standard of care. Accordingly, we set out those portions of lay testimony in this

section solely to place it in the context in which Rossi frames it in his argument on appeal.)

¶ 34 The Estate responded that it intended to introduce evidence of the article through

expert testimony and medical records. The Estate also argued that Tyman’s finding the article

showed only that the article was available online in 2007 to both laypersons and bariatric

surgeons. Over Rossi’s objection, the trial court allowed Tyman and her mother to testify about

the name of the article and how it was found.

¶ 35 b. Sandy Tyman

¶ 36 Tyman testified that Cindy was her youngest sister. Tyman also stated that Cindy

had one child—Tony—and her parents were John and Carolyn Overstreet. In 2007, Tyman was

employed as a preschool teacher.

¶ 37 Tyman testified that she visited Cindy at OSF Rockford shortly after Christmas

and was confused about why Cindy was in a coma. Tyman then went home and did an online

search “about coma and gastric bypass to see if [she] could find something that made what was

going on with [Cindy] make sense.” Regarding the results of that search, Tyman testified that she

found one article, titled “Wernicke’s Encephalopathy in a Patient After Gastric Bypass Surgery,”

that “sounded familiar from what [she] knew about Cindy’s condition.” Tyman emailed the

article to her parents.

-7- ¶ 38 c. Dr. Thomas Rossi

¶ 39 Rossi testified as an adverse witness that he was the surgeon primarily responsible

for Cindy during her surgery and postoperative care. He explained that prior to surgery, bariatric

patients had to attend a class in which they would be presented with information regarding

nutrition and potential complications of the surgery. Rossi testified that, in 2007, Cindy would

have viewed a PowerPoint presentation that he had approved. The Estate published copies of

some of the slides from that presentation, including a slide related to vitamin B-complex

deficiencies. Rossi acknowledged that the slide provided a warning that if a patient experienced

prolonged vomiting after surgery, she could become thiamine deficient.

¶ 40 Rossi testified that Cindy’s mother, Carolyn, called his office on December 20,

2007, which was the first time anyone other than Cindy had called Rossi’s office. Carolyn

reported to office staff that Cindy had an “altered level of consciousness” and could barely walk.

At that time, office staff interrupted Rossi while he was performing surgery on another patient to

alert him of Cindy’s condition. Rossi could not recall if he did any research at that time regarding

Cindy’s reported symptoms.

¶ 41 Rossi testified that the next day, December 21, 2007, Carolyn called the office

again and reported that (1) Cindy had been admitted to OSF Rockford and (2) OSF Rockford

doctors were not very familiar with bariatric surgery because OSF Rockford did not have a

bariatric program. After speaking with Carolyn, Rossi did not conduct any research into Cindy’s

symptoms but told Carolyn that Cindy needed to see a neurologist. Later that same day, Rossi

spoke with the admitting physician at OSF Rockford by phone and learned that Cindy had an

“altered level of consciousness,” difficulty walking, and vision problems. Rossi did not know the

-8- cause of her condition and did not do any research. However, he told the physician that Cindy

needed to see a neurologist.

¶ 42 Rossi did not hear from Cindy or Carolyn again until December 26, 2007, when

Carolyn called Rossi’s office. Carolyn told Rossi that Cindy was in a coma. Carolyn further said

that she needed “to talk to somebody before they start a feeding tube on Cindy.” During that

week, Rossi did not do any research into the potential cause of Cindy’s condition. Rossi did not

know at that time about Wernicke’s but learned of it at some point “probably after the 26th”

when he was informed that Cindy was being treated with thiamine.

¶ 43 Without objection, the Estate then read to Rossi a progress note from Dr. Gary

Rifkin, a treating physician at OSF Rockford, dated December 28, 2007. The note stated the

following: “Family found articles of gastric bypass with post-op vomiting, leading to Wernicke’s

encephalopathy, which was in our differential, but the clinical findings didn’t seem to fit. I was

unaware of the association with bypass gastrectomy. Have started thiamine.” The Estate asked

Rossi whether OSF Rockford’s diagnosis of Wernicke’s was based at least in part on the article

that Tyman found. Rossi agreed and testified that the article was a case report in a publication

prior to 2007.

¶ 44 The Estate asked Rossi whether “that article was found by a preschool teacher,”

Rossi’s counsel objected, and the trial court sustained the objection. Counsel restated the

question as follows: “Do you remember that Sandy Tyman was a preschool teacher at the time

she did her search?” Rossi responded in the negative without objection.

¶ 45 Rossi testified that he was aware in 2007 that “thiamine was one of the

replacements of the B Complex vitamins” and he would have learned in medical school about

-9- Wernicke’s. He also learned in medical school that the cause of Wernicke’s was a thiamine

deficiency but did not learn all the symptoms of Wernicke’s at that time.

¶ 46 After Cindy was admitted to OSF Rockford on December 20, 2007, Rossi did not

believe he could order the physicians at OSF Rockford to do anything, but he did believe that he

could discuss treatment with them. Rossi acknowledged that he did not offer to transfer Cindy to

OSF Peoria. He also testified that if he had known what was causing Cindy’s condition, he

would have called OSF Rockford and recommended that she receive immediate intravenous

¶ 47 The Estate asked Rossi whether “in 2007, it was the standard of care for bariatric

surgeons to be prepared to manage patients who have uncontrolled vomiting so that such

complications as Wernicke’s either do not develop or are recognized and treated as early as

possible before serious and irreversible injury occurs.” The following exchange followed,

beginning with Rossi’s response to a question he was asked:

“[ROSSI]: As a point of fact, you should be treating the nausea and the

vomiting, [that is] correct.

[THE ESTATE’S COUNSEL]: To prevent those serious complications

such as Wernicke’s, true?

[ROSSI]: To prevent all sorts of problems. But, yes, everything included.

[THE ESTATE’S COUNSEL]: Including Wernicke’s?

[ROSSI]: Including thiamine deficiency, yes.

[THE ESTATE’S COUNSEL]: And Wernicke’s?

[ROSSI]: Wernicke’s is a side effect at the end.

- 10 - [THE ESTATE’S COUNSEL]: Wernicke’s is a side effect of thiamine

deficiency sort of at the end of the thiamine deficiency, is what you were saying?

[ROSSI]: Correct.”

¶ 48 Rossi testified that in October 2007, surgeons who treated severe obesity did not

need to be aware of Wernicke’s as a complication of bariatric surgery. However, Rossi

acknowledged an article written in 1988 by Doctor Edward Mason, who Rossi agreed was an

authority in the field of bariatric surgery, provided the following, which the Estate read for

Rossi: “For a patient who reports vomiting, a distinction must be made between episodic

improper eating and uncontrolled starvation. Three types of starvation injury are described: ***

[one of which is] Wernicke-Korsakoff syndrome. *** Surgeons who treat severe obesity should

be aware of these complications.”

¶ 49 The Estate asked Rossi whether “as of October 11th of 2007, a history of

uncontrollable vomiting is an early warning sign that opens a window of opportunity for

prevention of Wernicke’s encephalopathy.” Rossi replied, “That early on, I would say, no, it

doesn’t happen within the first two days of surgery.”

¶ 50 The Estate again read from the article, which stated the following: “For obesity

surgeons, a history of uncontrollable vomiting is the early warning sign that opens a window of

opportunity for prevention [of Wernicke’s].” Rossi agreed that “[i]f it’s uncontrolled, correct,”

but countered, “[H]e never had an indication of uncontrolled vomiting in [Cindy’s] case.”

¶ 51 d. Dr. Constantine Frantzides

¶ 52 The Estate called Dr. Constantine Frantzides as an expert witness, who testified

that he was a “general surgeon, as well as a laparoscopic surgeon or minimally invasive surgery

surgeon.” Frantzides opined that Rossi was “negligent to the fact that the patient postoperatively

- 11 - had symptoms and signs of nausea and vomiting, and [Rossi] didn’t take the steps necessary to

avoid deficiencies.”

¶ 53 The Estate asked Frantzides what the standard of care was in 2007 for the

treatment of a patient like Cindy who was experiencing “persistent nausea and vomiting starting

six weeks after gastric bypass surgery.” Frantzides responded as follow:

“[T]he patient should have been seen, and tests should have been done for

the vitamins. It is important, and it has been established even in 2007 that patients

after gastric bypass can have vitamin deficiencies. And even if you give them

vitamins by mouth, that’s not enough because if they have nausea or vomiting,

they won’t take the amounts that they are required so they don’t have deficiencies.

And it was known that thiamine deficiency was the most horrible thing that can

happen to a patient after a gastric bypass.”

¶ 54 When asked whether the “standard of care in 2007 for a bariatric surgeon [was] to

know that thiamine deficiency was a risk in gastric bypass patients with prolonged nausea and

vomiting,” Frantzides responded, “Absolutely.”

¶ 55 Frantzides further testified that the standard of care generally was to

(1) investigate and treat nausea and vomiting and (2) prevent vitamin deficiencies while those

steps were being taken. Vomiting contributed to vitamin deficiencies, and it was important to

know “the side effects and the consequences of thiamine deficiency. That’s [a] very important

thing because the patient may be compliant and take the vitamin; but then if he or she throws up,

it’s gone.”

¶ 56 On cross-examination, Frantzides testified that he had never authored any articles

on thiamine or Wernicke’s in a post-bariatric patient or treated it in his own practice. He further

- 12 - acknowledged that (1) “as of 2007 there were no protocols that dictated how a post-bariatric

patient was to be managed” and (2) in his deposition he said that vomiting, by itself, was not

evidence of a thiamine deficiency, clarifying, “That’s why testing has to be done.”

¶ 57 Frantzides further testified he did not read the article that Tyman found but knew

that it was written in 2005 and found it on the internet. Rossi’s counsel inquired into the contents

of the article, but the Estate objected on the grounds that it was not declared authoritative; the

trial court sustained the objection. Frantzides testified that all physicians would have had access

in 2007 to PubMed, a medical literature database, so they could find information related to the

illness.

¶ 58 On redirect examination, Frantzides testified that Rossi had the responsibility to

“follow the patient closely, evaluate the status of the patient by blood testing,

okay, the vitamins, the complete metabolic panel, the [complete blood count], the

differential, all these kind of things are important for this kind of patients, that

they have this kind of chronic situation ***, that they are having nausea and

vomiting, and they cannot take enough nutrition.”

¶ 59 e. Carolyn Overstreet

¶ 60 Carolyn testified that Tyman had sent her an email with the article about

Wernicke’s attached. After Carolyn received the article, she took it to OSF Rockford and handed

it to one of the nurses who was caring for Cindy. The nurse appeared shocked after reading the

article.

¶ 61 f. The Discussion with the Trial Court Regarding the Article

¶ 62 Following a recess and outside the presence of the jury, the parties discussed with

the trial court the presentation of witness testimony for the next day. Regarding the testimony of

- 13 - Carolyn, Rossi asked that he be permitted to cross-examine Carolyn regarding the article that

Tyman found. Specifically, Rossi wanted Carolyn to acknowledge that the article stated that

nutritional deficiencies were not one of the common consequences or complications of bariatric

surgery. The trial court observed that “[the Estate] has made a big deal about this article, like it’s

some sort of a smoking gun,” and added, “the manner in which [the Estate] has presented this

article and the way it’s been done has given an implication that it would be unfair not to allow

some fashion of rebuttal from [the] defense.” However, the trial court did not at that time make

its ruling regarding the issue.

¶ 63 The following day, outside the presence of the jury, the trial court raised the issue

of lay testimony and concluded that the testimony about the article did not serve any legitimate

purpose, likening the implication of the article to a GEICO Insurance television commercial—

namely, “so easy a cave man could do it.” The court continued, “There certainly was an

implication that it’s so easy to find the article, a preschool teacher could find it.”

¶ 64 In an attempt to cure the perceived impropriety, the trial court told the parties it

would instruct the jury “to disregard the testimony presented by Sandy Tyman and Carolyn

Overstreet about any research conducted, article found, or what was done with or observed

regarding the article, because that testimony is not evidence.”

¶ 65 Rossi moved for a mistrial, which the trial court denied.

¶ 66 The trial court later instructed the jury to disregard testimony about the article,

admonishing the jury as follows:

“When instructed to disregard testimony or when instructed that testimony

has been stricken, it is your duty to follow my instructions. It would be unfair to

the parties and a violation of your oath to not follow my instructions.

- 14 - At this time, in keeping with that, I’m instructing you to disregard all

testimony presented by Sandy Tyman and Carolyn Overstreet about any research

conducted, article found, or what was done with or observed regarding the article.

That testimony is not evidence.”

¶ 67 g. Dr. Keith Millikan

¶ 68 Dr. Keith Millikan, Rossi’s expert, testified that he was a “general academic

surgeon” at Rush University in Chicago. Millikan testified that there is not necessarily any

protocol or mandate governing the standard of care for handling postoperative bariatric patients.

However, Millikan testified that the standard of care did not require Rossi to order thiamine

testing or supplementation in response to Cindy’s complaints of nausea and vomiting on October

31, 2007.

¶ 69 Millikan asserted that thiamine testing is not warranted when no other symptoms

are present and the patient exhibits only nausea. Millikan testified that such testing by Rossi was

especially not warranted when nutritionists and dieticians had no indication that vitamins were

not being absorbed. A reasonably competent bariatric surgeon would take into account input

from nutritionists. Regarding interacting with OSF Rockford physicians, “[t]he best [Rossi]

could do would be to speak to them and answer any questions that they had.”

¶ 70 On cross-examination, Millikan testified that he had attended multiple surgical

conferences between 1990 and 2010 and thiamine deficiency was never mentioned at those

conferences as a possible nutritional deficiency. However, when the Estate confronted Millikan

with his deposition testimony that Wernicke’s was discussed as a vitamin B12 complication,

Millikan testified that he “misspoke” in the deposition because it was not a B12 complication.

Millikan acknowledged that in the deposition he stated Wernicke’s was not linked to thiamine

- 15 - deficiency until 2010. Millikan maintained that Wernicke’s had causes other than thiamine

deficiency, such as alcoholism. However, he did not know how alcoholism caused Wernicke’s,

stating he would have to ask a neurologist about the mechanism.

¶ 71 When asked multiple times whether thiamine was appropriate to administer for

alcoholics to prevent Wernicke’s, Millikin answered repeatedly that he would have to consult a

neurologist or dietician. When asked whether he knew at that moment that thiamine deficiency

was discovered to be the cause Wernicke’s in the 1930’s, he stated, “Oh, I do know that.”

¶ 72 Millikan testified that bariatric surgeons should know the content of presentations

that their patients are required to attend before surgery. The Estate then showed Millikan the

PowerPoint slides that (1) Cindy viewed as part of her preparation for bariatric surgery and

(2) Rossi had approved should be shown to his patients prior to bariatric surgery. The Estate

asked Millikan, based on the slides, whether Rossi should have known that thiamine deficiency

was a risk that could result from bariatric surgery. Millikan replied, “Yes.” However, when asked

whether vomiting and neurological symptoms would suggest Wernicke’s, Millikan said he had

no opinion.

¶ 73 When the Estate asked Millikan if he “agree[d] that the standard of care in 2007

required a bariatric surgeon to be aware that Wernicke’s encephalopathy was a risk of bariatric

surgery,” Millikan responded, “Not necessarily.” The Estate then impeached Millikan with his

deposition testimony in which he agreed that “[i]t was the standard of care in 2007 for a bariatric

surgeon to be aware that Wernicke’s encephalopathy was a risk of bariatric surgery.”

¶ 74 3. The Disfigurement Evidence

¶ 75 As evidence of Cindy’s disfigurement, the Estate presented, among other things,

(1) Cindy’s medical records, (2) a video depicting Cindy’s comatose state, and (3) testimony

- 16 - from Dr. Paul Wang, who was Cindy’s physician at the long-term care facility in Rock Island in

which Cindy received care while in her coma. In May 2008, Wang observed “contractures” and

“decorticate posturing” during an examination. Wang explained that contractures are a tightening

of the muscles, tendons, and tissues that causes the joints to shorten and become very stiff and

difficult to move. He described decorticate posturing as abnormal posturing in which the person

is stiff with the arms pulled up and flexed, fists clenched, legs extended or held out straight, and

muscles contracted, rigid and tight.

¶ 76 Wang testified that the contractures and the decorticate posturing were caused by

Cindy’s brain injury and that they were permanent conditions. In addition to being described by

Wang and documented in the medical records, Cindy’s contractures and decorticate posturing

were shown to the jury as part of a “day in the life” video that was admitted into evidence.

¶ 77 4. The Evidence of Loss of Society

¶ 78 As an initial matter, we note that Tony did not testify at trial. Instead, evidence of

Tony’s loss of society was presented by members of his family, including his grandmother, aunt,

and Dr. Louis Kraus, a psychiatrist.

¶ 79 The family generally testified about their impressions that Cindy had enjoyed a

loving relationship with her son. Tony would spend time with Cindy, including camping, fishing,

playing T-ball, bike riding, visiting amusement parks, trick-or-treating, and attending church.

Prior to Cindy’s death, Tony never acted aggressively towards anyone and was doing well in

school. However, once Cindy went into a coma, his behavior became worse, and he seemed to

lose interest in school. The year after Cindy died, Tony was admitted for 10 days to Streamwood

Behavioral Health for suicidal thoughts and self-mutilation.

- 17 - ¶ 80 At the time of the trial, Tony was 22 years old and spent most of his time in his

basement bedroom of his grandparents’ home. The family testified that Tony did not have a job,

friends, or a driver’s license and did not join the family for Christmas or holiday parties.

¶ 81 Kraus testified he was an expert in child, adolescent, and forensic psychiatry.

Kraus explained that Tony had been diagnosed with several mental health disorders before 2007.

School and therapy records showed that Tony had suffered from attention-deficit/hyperactivity

disorder (ADHD) since first grade. Kraus agreed with the diagnosis and testified that Tony

continued to experience ADHD after his mother’s surgery and death. In addition to ADHD,

Kraus testified that Tony was diagnosed with two other mental health disorders before Cindy’s

surgery in 2007—namely, oppositional defiant disorder and adjustment disorder with depression.

Further, medical records from before 2007 documented that Tony exhibited anger, an irritable

mood, and violent acts such as hitting, kicking, or yelling, for which Tony received behavior

management training.

¶ 82 Kraus testified that he examined Tony twice—once when Tony was 17 and the

other time when he was 20, which was 5 years after Cindy’s death. Kraus concluded that Cindy’s

death had a significant impact on Tony.

¶ 83 C. The Jury Instructions and Verdict

¶ 84 1. Jury Instruction Discussion

¶ 85 After the close of evidence, relevant to this appeal, the trial court discussed with

the parties jury instructions relating to disfigurement. The following exchange occurred:

“THE COURT: Given. Plaintiff’s 17, IPI 31.10. Including 30.04,

30.04.01, 30.05 and 30.06. I’m not sure [about] the disfigurement part.

- 18 - [ROSSI’S COUNSEL]: So, we would also object, based on the evidence,

to the pain and suffering component and also the disfigurement component.

THE COURT: Well, disfigurement, for sure. There is no evidence of

[THE ESTATE’S COUNSEL]: Judge, we respectfully suggest that the

video demonstrates profound disfigurement. The posture, the arms and the hands

pulled up to the chin, the facial distortions, the tongue, the damage done to this

woman’s body. You saw the decubitus ulcer that existed for seven years. That is

THE COURT: I don’t believe that is what is intended by disfigurement.”

¶ 86 In support of its argument that disfigurement instructions should be given to the

jury, the Estate then referred the trial court to Holston v. Sisters of the Third Order of St. Francis,

165 Ill. 2d 150, 650 N.E.2d 985 (1995), and explained that “in Holston, the court defines

disfigurement as mean[ing] to make less complete, perfect or beautiful in appearance or

character.” Rossi replied that disfigurement required conscious awareness of the victim’s

physical state and no evidence was presented during the trial that would support a finding that

Cindy consciously knew she was disfigured. The court responded that it would research the issue

overnight.

¶ 87 The next day, the trial court told the parties it had concluded that evidence of

awareness was required for it to tender a disfigurement instruction, explaining, in part,

“Historically, as I indicated and I quoted just one case, but I could have quoted dozens and

dozens of cases where disfigurement was a line item in questions and evidence—questions were

asked, and evidence presented about the consequences to the individual for the personal injury or

- 19 - disfigurement.” The court also recognized that pain and suffering required evidence of

consciousness, and it did not believe that Cindy’s disfigurement was of the type for which a

disfigurement instruction was intended. Ultimately, the court determined that the Estate could

still ask the jury to consider the disfigurement “as part of the loss of normal life.”

¶ 88 2. The Jury’s Verdict

¶ 89 In September 2021, the jury returned a verdict in favor of the Estate, finding that

Rossi had acted negligently. The jury awarded damages totaling $7,745,400, as follows:

(1) $910,000 for lost wages; (2) $2,335,400 for medical expenses; (3) $2 million for loss of

normal life; (4) $0 for pain and suffering; (5) $2.5 million for grief, sorrow, and mental

suffering; and (6) $0 for loss of society.

¶ 90 D. The Posttrial Proceedings

¶ 91 1. The Motion for Prejudgment Interest

¶ 92 In October 2021, the Estate moved to include prejudgment interest in the

judgment order filed September 2021, pursuant to section 2-1303(c) of the Code (735 ILCS

5/2-1303(c) (West Supp. 2021)). Rossi objected, arguing, among other things, that section 2-

1303 of the Code was unconstitutional. In December 2021, the trial court issued its written order,

granting the Estate’s motion for prejudgment interest and denying Rossi’s constitutional

challenge to the prejudgment interest statute.

¶ 93 2. The Motion for Setoff and Reduction of Judgment

¶ 94 In January 2022, Rossi moved for a setoff of $4.9 million to account for prior

settlements, as well as a reduction of the remaining award pursuant to section 2-1205 of the Code

to account for any collateral payments to the Estate. After a $4.9 million reduction for the

settlements, the remaining jury verdict was $2,845,400. Because the relevant medical bills for

- 20 - which medical providers sought no recoupment—namely, $1,662,414.38—was more than half of

the remaining verdict, Rossi asserted the proper reduction pursuant to section 2-1205 was

$1,422,700. The Estate objected to a portion of this reduction as reflecting amounts “written off”

by medical providers, arguing that those sums were not subject to reduction under section

2-1205. We note that the amount shown to have been paid by Cindy’s insurance company was

$296,069.17.

¶ 95 The trial court granted Rossi’s motion, noting that it was bound by the Second

District’s precedent in Perkey v. Portes-Jarol, 2013 IL App (2d) 120470, 1 N.E.3d 5, which the

trial court determined allowed for written-off medical expenses to be included in reduction

calculations.

¶ 96 3. Rossi’s Motion for New Trial

¶ 97 Later in January 2022, Rossi moved for a new trial, arguing he was denied a fair

trial because he was substantially prejudiced by the introduction of the testimony regarding the

article. Rossi asserted that the testimony suggested that the standard of care required Rossi to be

aware of the article.

¶ 98 The trial court denied the motion, concluding, in part, as follows:

“[Rossi] acknowledge[s] that the court did instruct the jury, ultimately, to

disregard the testimony presented by the sister and mother about any research

conducted or what was done with or observed regarding the article because that

testimony is not evidence. The jury acknowledged its understanding of the court’s

instruction. *** Additionally, the jury was instructed with IPI 105.1 that it must

rely on expert opinion testimony in determining the standard of care. Both

- 21 - attorneys in closing arguments discussed the standard of care and the expert

testimony regarding the standard of care.

***

In addition, the references by the sister and mother’s testimony were made

on three different days without contemporaneous objection by defendants. ***

The issues were not raised in voir dire, opening statements or closing arguments.

*** [Rossi] did give testimony regarding the sister finding an article and sending

it to her mother. He acknowledged the article was in publication and available

prior to October 11, 2007. The parties stipulated to medical records and without

objection the entry by Dr. Gary Rifkin was read to the jury. ***

In assessing the record as a whole, the testimony from Sandy Tyman, the

sister[,] and Carolyn Overstreet, the mother, was not unduly prejudicial,

particularly in light of the instructions and admonition from the court.”

¶ 99 4. The Estate’s Motion for New Trial

¶ 100 In January 2022, the Estate moved for a new trial on damages alone, arguing that

(1) the jury should have been instructed as to disfigurement and (2) the jury’s failure to award

damages for Tony’s loss of society was not supported by the evidence. In June 2022, the trial

court denied the Estate’s motion in a written order.

¶ 101 Regarding disfigurement, the trial court found that a disfigurement instruction

required evidence of awareness based on caselaw stemming from Chicago City Ry. Co. v. Smith,

226 Ill. 178, 80 N.E. 716 (1907). The court wrote the following:

- 22 - “Other cases where disfigurement is discussed are ones where the plaintiff

was impacted in some fashion by the injury. Despite the fact in these cases the

term ‘awareness’ has not been used, the language utilized by the courts and the

manner of description in the cases thus far have all addressed what the marring,

i.e., disfigurement, has meant to the plaintiff him or herself. As the defendants

point out, it is that testimony which is essential so the jury has facts to base an

award upon.”

The court concluded that the Estate had been free to argue that Cindy’s appearance reflected her

loss of normal life.

¶ 102 Regarding loss of society, the trial court wrote as follows:

“Notably, Tony Fry himself never appeared in court and never offered any

testimony at all. There was a good amount of evidence presented that Tony had

intellectual, emotional[,] and behavioral issues as early as his preschool years. ***

In the time period of 2003 to 2005, it was reported Tony sometimes acted

violently; that he hit, kicked[,] and hurt his mother. *** Dr. Krause testified to

ongoing struggles by Tony as an adult. Family members testified to all the things

that his mother did for Tony and offered pictures of them at holidays and

birthdays. As the court recalls, the majority of the family testimony pertained to

efforts by mother Cynthia Overstreet towards Tony and trying to help him as a

single parent. Naturally[,] no one could testify from Tony’s perspective.

*** The jury in this matter heard mainly subjective observations from

family members as to their impressions of the loss of society they thought Tony

- 23 - Fry had suffered. The jury was free to assess those impressions and thoughts and

accept them wholly, partly[,] or not at all. There is no suggestion the jury failed to

follow the instructions given them regarding loss of society or otherwise acted out

of passion or prejudice.

*** The jury heard the evidence and judged it as well as the credibility of

the witnesses and ultimately made their decision. The jury could have reasonably

concluded that no evidence of what the loss meant to Tony personally was ever

offered since he never testified. That decision is not against the manifest weight of

the evidence on this topic.”

¶ 103 These appeals followed.

¶ 104 II. ANALYSIS

¶ 105 The Estate appeals, arguing that (1) the trial court erred by denying a

disfigurement instruction, (2) the jury’s failure to award damages for loss of society was against

the manifest weight of the evidence, and (3) the court erred by reducing the judgment under

section 2-1205 of the Code. Because we agree only with the Estate’s third argument, we

(1) affirm the trial court’s decisions regarding the disfigurement instruction and the jury’s

decision not to award damages for Tony’s loss of society and (2) reverse the trial court’s decision

to reduce the judgment pursuant to section 2-1205 of the Code regarding written-off medical

expenses.

¶ 106 Rossi also appeals, arguing that (1) he was unfairly prejudiced by the admission

of what he claims was lay testimony regarding the standard of care and (2) the award of

- 24 - prejudgment interest should be vacated as unconstitutional. We disagree with both of Rossi’s

arguments.

¶ 107 A. The Estate’s Claims

¶ 108 1. Disfigurement Instruction

¶ 109 The Estate argues that the trial court erred by failing to instruct the jury on

disfigurement because (1) awareness is not an element of disfigurement and (2) the Estate

otherwise presented sufficient evidence of disfigurement. We disagree.

¶ 110 a. The Applicable Law and the Standard of Review

¶ 111 In Illinois, the jury in a negligence case may be instructed for disfigurement as a

separate element of compensable damages. Holston, 165 Ill. 2d at 175; Simon v. Kaplan, 321 Ill.

App. 203, 52 N.E.2d 832 (1944). The supreme court has defined the term “disfigure” as “ ‘to

make less complete, perfect, or beautiful in appearance or character.’ ” Holston, 165 Ill. 2d at

175 (quoting Webster’s Third New International Dictionary 649 (1986)).

¶ 112 Whether to provide a particular pattern jury instruction lies within the sound

discretion of the trial court. Bailey v. Mercy Hospital & Medical Center, 2021 IL 126748, ¶¶ 41-

42, 186 N.E.3d 366. However, whether a plaintiff can recover damages for disfigurement in the

absence of the plaintiff’s awareness of her disfigurement presents a question of law that we

review de novo. See Illinois State Toll Highway Authority v. South Barrington Office Center,

2016 IL App (1st) 150960, ¶ 32, 58 N.E.3d 703 (the general rule in civil cases is that legal issues

are reviewed de novo).

¶ 113 b. The Relevant Background

¶ 114 The record generally shows that in December 2007, Cindy entered into a

“persistent vegetative state,” and she was not capable of experiencing conscious pain and

- 25 - suffering. In May 2008, Cindy began to exhibit decorticate posturing—that is “significant

rigidity and spasticity of her upper extremities”—which adversely affected her physical

appearance. The parties do not dispute that Cindy was unaware of her disfigurement; instead, the

parties dispute whether evidence of awareness was a requirement for the jury to receive a

disfigurement instruction.

¶ 115 c. This Case

¶ 116 The Estate argues that awareness is not an element of disfigurement because

(1) the Illinois Supreme Court impliedly rejected that requirement in Holston, 165 Ill. 2d at 175,

(2) no case holds that awareness is a requirement for disfigurement, (3) Illinois case law shows

that the purpose of disfigurement damages is to compensate for the fact of disfigurement, instead

of its impact on the victim (citing Simon, 321 Ill. App. 203, and Fitzgerald v. Davis, 237 Ill. App.

488, 492 (1925)), (4) any holding otherwise would be contrary to the premise of tort law in

Illinois, and (5) the Illinois Pattern Jury Instruction, Civil, for disfigurement does not contain any

reference to awareness as an element. We are unpersuaded.

¶ 117 Initially, we note that no party has cited, nor have we found, any authority from

any jurisdiction holding that damages for disfigurement can be awarded to a victim who was

never consciously aware of her disfigurement. In that regard, we further note that some evidence

was presented that the decorticate posturing that Cindy suffered as a result of the coma is a

frequent occurrence in victims in Cindy’s condition. Yet, we are not aware of any case awarding

disfigurement damages for a comatose victim.

¶ 118 Holston is the only case the Estate cites in support of its claim that the jury should

have been given an instruction on disfigurement, despite Cindy’s being comatose. However,

Holston did not address the awareness requirement for disfigurement. Moreover, both Simon,

- 26 - 321 Ill. App. at 211, and Fitzgerald, 237 Ill. App. at 492, involved victims who were aware of

their disfigurement. And in neither of those cases was the purpose of disfigurement damages

discussed.

¶ 119 In Holston, the Illinois Supreme Court reviewed, among other issues, the

propriety of a jury award for disability and disfigurement when those injuries occurred nearly

simultaneously with the victim’s losing consciousness and lapsing into a coma. Holston, 165 Ill.

2d at 174-75. The supreme court briefly touched upon the issue of disfigurement, stating simply

(1) “there was evidence in the record that Holston suffered both disability and disfigurement as a

result of the undetected cardiac tamponade” and (2) “the trial court did not err in permitting the

jury to consider Holston’s disability and disfigurement in making its award of damages.” Id. at

175.

¶ 120 Importantly, at no point in Holston did the court state—or even imply—that

awareness was not a requirement for a jury to award damages for disfigurement. Indeed, the

supreme court concluded that for “similar reasons” to its discussion regarding pain and suffering,

the disability and disfigurement award was not erroneous. Id. Given the supreme court’s pain and

suffering discussion, which focused on the evidence related to the time before the victim lapsed

into unconsciousness, the court’s writing “for similar reasons” means that it was relying on the

same pre-coma evidence for its disability and disfigurement discussion as it considered for pain

and suffering. Accordingly, the court’s holding merely reflected the sufficiency of the evidence

and not the evidentiary requirements for a disfigurement instruction.

¶ 121 We also note that the Estate conceded in its written motion for a new trial that

Holston did not address the issue of awareness.

- 27 - ¶ 122 We reiterate that we are aware of no case that has ever approved of awarding

disfigurement damages to a comatose victim, and we decline to be the first court to so hold.

¶ 123 In support of our conclusion, we note that compensating irreversible coma victims

for disfiguring injuries presents unique circumstances because unlike the conscious victim—who

may one day face ridicule, diminished future employment opportunities, altered relationships,

and the pain and costs of corrective plastic surgery—the victim who becomes disfigured only

after losing consciousness, and later dies without ever regaining consciousness, suffers no similar

injuries. In that way, disfigurement is like pain and suffering, requiring the plaintiff to present

evidence showing the victim was aware of the disfigurement in order to recover for

disfigurement. See Clarke v. Medley Moving & Storage, Inc., 381 Ill. App. 3d 82, 89, 885

N.E.2d 396 (2008) (“The plaintiff must present evidence that the injured party was conscious in

order to recover for his pain and suffering.”). The trial court here summarized this reasoning

well, writing, “In a coma situation such as this, there is no impact upon the plaintiff of the

changes resulting from being in a coma and essentially brain dead.”

¶ 124 We emphasize that cases involving an irreversibly comatose victim, like this case,

are different in kind from cases involving other potential victims of disfigurement. That is to say,

an irreversibly comatose person who becomes disfigured while comatose and never regains

consciousness before death was never and could never be apprised by any of his or her human

senses—such as sight, touch, or hearing—of his or her disfiguring injury.

¶ 125 Nonetheless, as in the present case, the irreversibly comatose victim—or her

estate—is not without recompense for her inability to enjoy life’s pleasures; because no future

harm can befall her greater than that which she has already experienced, damages for loss of

normal life subsume disfigurement damages for the comatose victim, allowing her to recover

- 28 - fully. After all, such a victim has inarguably experienced essentially complete loss of normal life

when she is rendered incapable of interacting with the world around her. See Illinois Pattern Jury

Instructions, Civil, No. 30.04.02 (2011) (hereinafter IPI Civil (2011)) (“When I use the

expression ‘loss of a normal life’, I mean the temporary or permanent diminished ability to enjoy

life. This includes a person’s inability to pursue the pleasurable aspects of life.”).

¶ 126 Accordingly, we conclude that the trial court did not err by declining to instruct

the jury on disfigurement under the facts of this case.

¶ 127 2. Loss of Society

¶ 128 Next, the Estate argues that (1) the jury’s award of zero damages for Tony’s loss

of society is against the manifest weight of the evidence and (2) the trial court erred by

sustaining it. In particular, the Estate contends (1) direct testimony from Tony was not necessary

for the jury to award damages for loss of society, (2) the Estate provided sufficient evidence of

loss of society, and (3) there is a presumption of substantial loss. The Estate also contends that

the court was incorrect as a matter of law when it denied the Estate’s motion for a new trial

because, the Estate claims, the court believed it could have rejected the loss of society claim

because Tony did not testify or explain his perspective. We disagree.

¶ 129 a. The Applicable Law and the Standard of Review

¶ 130 When deciding a motion for a new trial, trial courts, after weighing the evidence,

must grant the motion if the verdict is contrary to the manifest weight of the evidence. Bland v.

Q-West, Inc., 2023 IL App (2d) 210683, ¶ 10. “A verdict is considered to be against the manifest

weight of the evidence only when the opposite result is clearly evident or where the jury’s

findings are unreasonable, arbitrary, and not based upon any of the evidence.” Id. Appellate

- 29 - courts review a trial court’s decision to grant or deny a motion for new trial for abuse of

discretion. Id.

¶ 131 The Wrongful Death Act provides that “the jury may give such damages as they

shall deem a fair and just compensation with reference to the pecuniary injuries resulting from

such death, including damages for grief, sorrow, and mental suffering, to the surviving spouse

and next of kin of such deceased person.” 740 ILCS 180/2(a) (West 2020). Those damages are

premised upon a rebuttable presumption that the surviving spouse and next of kin would have

had a reasonable expectation of benefits from the continuation of the life of the deceased. Watson

v. South Shore Nursing & Rehabilitation Center, LLC, 2012 IL App (1st) 103730, ¶ 36, 965

N.E.2d 1200.

¶ 132 b. This Case

¶ 133 The Estate contends that the trial court denied the Estate’s motion for a new trial

regarding the loss of society claim solely because Tony did not testify. The Estate claims that

this denial, in effect, amounts to the trial court’s imposing a per se requirement that the victim

must testify in order to secure damages for loss of society. However, the Estate mischaracterizes

(1) the effect that the presumption of loss of society has on wrongful death proceedings, (2) the

trial court’s written order denying the Estate’s motion for a new trial, and (3) the strength of the

Estate’s evidence.

¶ 134 Although the Estate correctly asserts that the presumption of pecuniary injury, on

its own, is sufficient to sustain a verdict awarding substantial damages (Hall v. Gillins, 13 Ill. 2d

26, 31 (1958)), that presumption does not require the jury to award damages. See 740 ILCS

180/2(a) (West 2020) (“[T]he jury may give such damages as they shall deem a fair and just

compensation ***.” (Emphasis added.)); see also Flynn v. Vancil, 41 Ill. 2d 236, 240, 242

- 30 - N.E.2d 237 (1968) (“Implicit in the right to weigh the presumption is the right to give it no

weight at all.”). Like all rebuttable presumptions, the presumption of loss merely establishes a

prima facie case for loss of society; the presumption itself is not evidence. Cimino v. Sublette,

2015 IL App (1st) 133373, ¶ 104, 31 N.E.3d 846; Flynn, 41 Ill. 2d at 239-40.

¶ 135 Although factually dissimilar to the present case, we find Flynn instructive. In

Flynn, the jury found the defendant liable for negligence but did not award damages for the death

of an infant suffering from an incurable congenital physical defect. Flynn, 41 Ill. 2d at 237.

Because the parties did not dispute either the infant’s condition or the defendant’s liability, the

only question before the supreme court was “whether the presumption of substantial pecuniary

loss to lineal kindred in wrongful-death cases is rebuttable so as to warrant a jury verdict finding

liability but awarding no damages.” Id.

¶ 136 Ultimately, the court concluded that the uncontroverted evidence of the infant’s

poor health could have reasonably allowed the jury to find the presumption rebutted. Id. at

238-39. The court reasoned that the jury had the discretion to determine “the quantum of

evidence necessary to rebut the presumption” and emphasized that the presumption does not

operate to place a “burden on defendant of excluding every possibility of pecuniary loss.” Id. at

239, 241. Instead, the court noted that “[t]he farthest reaches of the law require only that the

presumption be [(1)] considered if there is no evidence on the issue, or [(2)] if there is evidence,

that the presumption be weighed by the jury with such evidence.” Id. at 241.

¶ 137 In other words, the supreme court determined that the jury is to consider the

totality of the evidence to determine damages for a plaintiff’s loss of society. In Flynn, the mere

fact that the infant had poor health was sufficient to sustain the jury’s verdict awarding no

- 31 - damages under the Wrongful Death Act because that fact was likely seen by the jury as

inconsistent with an actual pecuniary loss.

¶ 138 Similarly, in this case, just because Rossi did not present his own expert

testimony regarding Tony’s loss of society does not mean the jury was required to ignore the

evidence it had already heard—namely, as the trial court put it, that “Tony had intellectual,

emotional, and behavioral issues as early as his preschool years” and “[c]learly those issues were

present well before his mother’s surgery.”

¶ 139 Further, the trial court did not attribute the jury’s lack of a damage award to Tony

for loss of society only to the absence of Tony’s testimony. Indeed, the court noted in its written

order denying the Estate’s posttrial motion that the jury had been presented (1) “a good amount

of evidence” that Tony had intellectual, emotional, and behavioral issues prior to Cindy’s

becoming comatose, (2) testimony that Tony’s difficulties would have continued regardless of

Cindy’s surgery and death, and (3) “subjective observations from family members as to their

impressions of the loss of society they thought Tony *** had suffered.”

¶ 140 The trial court also wrote that the Estate’s psychiatric expert, Dr. Krause, testified

that “[i]n the time period of 2003 to 2005, it was reported Tony sometimes acted violently; that

he hit, kicked, and hurt his mother,” and “these difficulties might have been ongoing regardless

of his mother’s surgery and later death.”

¶ 141 Moreover, we agree with the trial court’s conclusion that, “[u]ltimately, giving the

jury’s verdict substantial deference and in light of the fact that a rebuttable presumption is not

itself evidence, looking at this record as a whole, this court is unable to conclude that the jury

failed to consider a proven element of damages.”

¶ 142 We deem the trial court’s analysis appropriate.

- 32 - ¶ 143 Likewise, the record provides no indication that the jury’s failure to award

damages for loss of society was against the manifest weight of the evidence. See Camelot, Inc. v.

Burke Burns & Pinelli, Ltd., 2021 IL App (2d) 200208, ¶ 64, 184 N.E.3d 384 (“The credibility of

the witnesses is for the trier of fact to determine. *** [T]he trier of fact[ ] is in a superior position

to this court to weigh the witnesses’ credibility, weigh the evidence, and determine the

preponderance thereof.”). And even if the jury did take into consideration Tony’s failure to

testify at trial regarding his loss of society claim, no rule of law prevented the jury, as trier of

fact, from doing so.

¶ 144 We note that we are not the first court to affirm a damage award of $0 in damages

to the child of a decedent for loss of society. See Chrysler v. Darnall, 238 Ill. App. 3d 673, 680,

606 N.E.2d 553 (1992) (“Regarding plaintiff’s argument that decedent’s daughter *** was

wrongly denied pecuniary damages, we similarly find no error.”). We further note that, unlike

this case, the daughter in Chrysler testified at trial about her relationship with her father. Id. at

678.

¶ 145 Accordingly, we conclude that (1) on this record, the jury’s award of $0 for loss

of society was not unreasonable or arbitrary and (2) as a result, the trial court did not abuse its

discretion by denying the Estate’s motion for a new trial.

¶ 146 3. Reducing the Judgment

¶ 147 Last, the Estate argues that (1) Rossi did not “allege or prove the source or origin

of the $1,422,700 they sought in reduction” and (2) the trial court erred by applying Second

District precedent from Perkey, 2013 IL App (2d) 120470, to conclude that a judgment may be

reduced by the amount of medical bills that the medical providers had written-off, pursuant to

section 2-1205 of the Code; instead, the Estate contends that the Fourth District case of Miller v.

- 33 - Sarah Bush Lincoln Health Center, 2016 IL App (4th) 150728, 56 N.E.3d 599, should be applied

to the facts of this case. Miller held that under section 2-1205 of the Code, a defendant is not

entitled to, and the trial court may not order, a reduction of the judgment based on write-offs. We

agree with the Estate that the written-off medical bills should not have been used to reduce the

jury’s verdict.

¶ 148 a. The Applicable Law and the Standard of Review

¶ 149 Section 2-1205 of the Code provides as follows:

“Reduction in amount of recovery. An amount equal to the sum of (i) 50% of the

benefits provided for lost wages or private or governmental disability income

programs, *** and (ii) 100% of the benefits provided for medical charges,

hospital charges, or nursing or caretaking charges, which have been paid, or

which have become payable to the injured person by any other person,

corporation, insurance company or fund in relation to a particular injury, shall be

deducted from any judgment in an action to recover for that injury based on an

allegation of negligence *** on the part of a licensed hospital or physician;

provided, however, that:

(1) Application is made within 30 days to reduce the judgment;

(2) Such reduction shall not apply to the extent that there is a right of

recoupment through subrogation, trust agreement, lien, or otherwise;

(3) The reduction shall not reduce the judgment by more than 50% of the

total amount of the judgment entered on the verdict;

(4) The damages awarded shall be increased by the amount of any

insurance premiums or the direct costs paid by the plaintiff for such benefits in the

- 34 - 2 years prior to plaintiff’s injury or death or to be paid by the plaintiff in the

future for such benefits; and

(5) There shall be no reduction for charges paid for medical expenses

which were directly attributable to the adjudged negligent acts or omissions of the

defendants found liable.” 735 ILCS 5/2-1205 (West 2020).

¶ 150 In 2013, the Second District issued an opinion analyzing, among other issues, the

meaning of the phrase in subsection (2) that “ ‘[s]uch reduction shall not apply to the extent that

there is a right of recoupment through subrogation, trust agreement, lien, or otherwise.’ ”

(Emphasis omitted.) Perkey, 2013 IL App (2d) 120470, ¶ 110 (quoting 735 ILCS 5/2-1205(2)

(West 2010)). The plaintiffs in that case argued that if a right to recoupment existed, then the

statute barred any request for reduction. Id. The Second District disagreed, concluding that the

statute merely “limits the reduction by only the extent of, or amount of, the right to recoupment.”

Id. ¶ 112. Ultimately, the Second District reversed the trial court’s denial of the motion to reduce

judgment, allowing reduction of the judgment based on paid or payable medical expenses that

lacked a right of recoupment. Id. ¶¶ 120-23.

¶ 151 In 2016, this court also analyzed the language of section 2-1205 of the Code,

addressing whether that section allowed for a reduction of judgment based on written-off

medical expenses. Miller, 2016 IL App (4th) 150728, ¶ 17. This court concluded that “[b]ecause

the plain language of section 2-1205 *** does not allow for a defendant to reduce a judgment by

an amount that was neither paid to medical providers nor payable to the plaintiff, the trial court

erred in reducing the judgment in this case.” Id. ¶ 21. In so holding, this court noted that

although Perkey allowed the judgment in that case to be reduced by the amount of written off

- 35 - medical expenses, the Second District did not actually analyze that issue because different

arguments were made in that case. Id.

¶ 152 Because this case involves a question of statutory interpretation, we apply a

de novo standard of review. Id. ¶ 8.

¶ 153 b. This Case

¶ 154 We adhere to what this court wrote in Miller and conclude that the trial court

erred by reducing the jury’s verdict by the written-off medical bills.

¶ 155 Further, we are not persuaded by Rossi’s policy arguments that we should revisit

this court’s decision in Miller. We reiterate that the plain language of section 2-1205 does not

allow for a reduction in judgment based on written-off medical expenses. Id. ¶ 21.

¶ 156 Accordingly, we (1) conclude that the trial court erred when it reduced the

judgment by $1,126,630.83 for written-off medical expenses, (2) reverse the court’s order

granting that reduction, and (3) remand with directions to the trial court to reduce the judgment

by only $296,069.17—namely, the amounts paid by Cindy’s insurance company.

¶ 157 B. Rossi’s Claims on Cross-Appeal

¶ 158 1. Lay Testimony Regarding the Standard of Care

¶ 159 In his cross-appeal, Rossi first argues that he was unfairly prejudiced by the jury’s

hearing what Rossi calls lay witness testimony regarding (1) the article Tyman found about

Wernicke’s being a risk of bariatric surgery and (2) how Carolyn gave the article to hospital staff

at OSF Rockford. Rossi asserts that this testimony was tantamount to a medical opinion and

influenced the jury’s understanding of the standard of care. Specifically, Rossi contends that

Tyman’s testifying that she found an article that discussed Cindy’s then-undiagnosed condition,

using an internet search engine, amounted to testimony that a reasonably competent surgeon

- 36 - would or should have been aware of that same article, which deeply prejudiced Rossi. We

disagree. Because we conclude that Rossi was not prejudiced by Tyman’s testimony, we need

not determine the propriety of the introduction of the article into evidence.

¶ 160 a. The Applicable Law and the Standard of Review

¶ 161 Trial courts have discretion to decide whether evidence is relevant and admissible,

and such decisions are reviewed for an abuse of that discretion. Peach v. McGovern, 2019 IL

123156, ¶ 25, 129 N.E.3d 1249. An abuse of discretion occurs only when no reasonable person

would take the position adopted by the trial court. Id. “Erroneous evidentiary rulings are only a

basis for reversal if the error was substantially prejudicial and affected the outcome of trial.”

(Internal quotation marks omitted.) Jefferson v. Mercy Hospital & Medical Center, 2018 IL App

(1st) 162219, ¶ 39, 97 N.E.3d 173. Erroneously admitted evidence that is cumulative and does

not otherwise prejudice the objecting party is harmless. Id. The party seeking reversal has the

burden of showing prejudice. Blockmon v. McClellan, 2019 IL App (1st) 180420, ¶ 47, 143

N.E.3d 279.

¶ 162 b. This Case

¶ 163 As an initial matter, we thank the trial court for its detailed written order denying

the Estate’s and Rossi’s motions for a new trial. In the court’s order, it concluded that Tyman’s

testimony did not prejudice Rossi. Although we found the trial court’s order very helpful in

understanding this issue, we note that we are not convinced the trial court’s allowing Tyman to

testify regarding the name of the article she found and how she found it was, in fact, error, which

is what the trial court ultimately decided after all of the evidence at trial had been presented.

¶ 164 Rossi argues that Tyman’s lay testimony was used to establish the applicable

standard of care, but that assertion requires an inference that Tyman’s testimony actually

- 37 - pertained to the standard of care. Importantly, at no point did Tyman ever mention (1) the

standard of care, (2) what a doctor should have done, or (3) what information the article

contained. Instead, she merely testified that she had found an article that appeared to relate to the

symptoms Cindy was suffering and delivered it to her parents, who then delivered it to Cindy’s

treatment providers. We note that those treatment providers ultimately appear to have used the

article in an effort to treat Cindy, as shown not only by Rifkin’s progress note, but also by

Rossi’s testimony regarding Rifkin’s note.

¶ 165 Testimony regarding the subject of Tyman’s locating the article was presented

four times during the Estate’s case-in-chief: (1) when Tyman testified, (2) when Rossi testified

as an adverse witness, (3) when Carolyn (Cindy’s and Tyman’s mother) testified, and (4) when

Frantzides (the Estate’s expert witness) testified. Rossi’s counsel made no objection when Rossi

and Carolyn testified about this subject. When Tyman began to testify about it, Rossi’s counsel

said only, “Judge, I’d just renew my objection.” The trial court responded, “Overruled. Go

ahead.” Because Rossi’s counsel did not state with specificity the objection he was renewing, we

are left to infer he meant his objection to the article as specified in his pretrial motion in limine,

which the court denied.

¶ 166 Frantzides’ testimony about this subject came about when Rossi’s counsel

cross-examined him. Rossi’s counsel showed Frantzides the article and asked the following

question: “[T]his is the article that Cynthia Overstreet’s sister found. Do you recall reading about

that in your work on this case? Yes?”

¶ 167 Frantzides responded, “No, I don’t remember that, but I know that she did a

search of the internet, and she found it.”

- 38 - ¶ 168 Illinois Rule of Evidence 103(b)(3) (eff. Oct. 15, 2015) provides that “[i]n civil

trials, even if the court rules before or at trial on the record concerning the admission of

evidence, a contemporaneous trial objection *** must be made to preserve a claim of error for

appeal.” Moreover, just six months before the trial in this case, this court wrote the following in a

medical malpractice case about a party’s failure to object when the trial court denied that party’s

pretrial motion in limine to bar evidence: “[A] contemporaneous objection to the evidence at the

time it is offered is required to preserve the issue for review.” (Internal quotation marks omitted.)

Arkebauer v. Springfield Clinic, 2021 IL App (4th) 190697, ¶ 61.

¶ 169 Rule 103(b)(3) and Arkebauer make clear that in order for Rossi to preserve his

claim that the trial court erred by denying his motion in limine to bar testimony regarding Tyman

and the article, Rossi needed to object anew at trial whenever that subject arose. However, Rossi

failed to do so.

¶ 170 Indeed, Rossi’s counsel made no objection at trial to the testimony of Rossi and

Carolyn when they testified about that subject. Not only did he fail to object to the testimony of

Frantzides about that subject, he elicited it.

¶ 171 Assuming for the sake of argument that Rossi’s counsel’s abrupt and ambiguous

statement before Tyman testified about the article—namely, “Judge, I’d just renew my

objection”—was sufficient, absent any context or further explanation, to preserve Rossi’s claim

of error regarding Tyman’s testimony, Rossi’s counsel clearly failed to preserve the argument

first made in the motion in limine regarding Tyman and the article when he failed to additionally

object at trial to testimony about that subject given by Rossi, Carolyn, and Frantzides.

¶ 172 Nonetheless, even if the above testimony were improper, we conclude that it was

not unduly prejudicial because (1) the evidence was merely cumulative of properly admitted

- 39 - evidence, which was heard over several days, (2) the jury was reminded multiple times, both by

the trial court and the parties in closing argument, what constituted proper standard of care

testimony, and (3) the court cured any impropriety by admonishing the jury not to consider

Tyman’s testimony regarding the article.

¶ 173 Rossi testified Tyman found the article and sent it to her mother. He also

acknowledged that the article was in publication and available prior to October 2007. The note

written by Rifkin, which stated Cindy’s “[f]amily found articles of gastric bypass with postop

vomiting, leading to Wernicke’s encephalopathy *** I was unaware of the association with

bypass gastrectomy. Have started thiamine,” was read to the jury without objection. Further, both

parties’ experts testified that Wernicke’s was a known risk of bariatric surgery at the time

Cindy’s surgery was performed. Accordingly, Tyman’s testimony was merely cumulative of

what had already been properly introduced into the record. See Greaney v. Industrial Comm’n,

358 Ill. App. 3d 1002, 1013, 832 N.E.2d 331 (2005) (“When erroneously admitted evidence is

cumulative and does not otherwise prejudice the objecting party, error in its admission is

harmless.”).

¶ 174 In addition, we reiterate that the jury was told multiple times what constitutes

standard of care evidence and was given curative instructions for the jurors to disregard any

testimony about the article. The trial court admonished the jury not to consider Tyman’s

testimony and gave Illinois Pattern Jury Instructions, Civil, No. 105.01 (approved Apr. 2020),

instructing the jury that it must rely on only expert opinion testimony in determining the standard

of care. In his closing argument, Rossi emphasized that only expert testimony from Frantzides,

Millikin, and Rossi could establish the standard of care, concluding, “Your discussion of what

was or was not required begins and ends with those three.” The Estate, in its closing argument,

- 40 - also reminded the jury to decide the standard of care based on the expert testimony—specifically

Frantzide’s and Millikan’s.

¶ 175 Because we presume that jurors follow the instructions of the trial court (People v.

Nixon, 2016 IL App (2d) 130514, ¶ 44, 53 N.E.3d 301) and Tyman’s testimony was merely

cumulative of other, properly admitted evidence about the article, we conclude that Rossi was

not prejudiced by her testimony. Accordingly, the trial court properly denied his motion for new

trial.

¶ 176 2. Prejudgment Interest

¶ 177 Rossi argues that the prejudgment interest statute (735 ILCS 5/2-1303(c) (West

Supp. 2021)) is unconstitutional because it (1) interferes with the fundamental right to a trial by

jury and the jury’s determination of damages, (2) violates due process by providing for double

recovery and interfering with vested rights, (3) constitutes impermissible special legislation

under the Illinois Constitution and violates equal protection, and (4) was passed in violation of

the three-readings rule. We disagree and affirm.

¶ 178 a. The Applicable Law

¶ 179 i. The Statutory Language at Issue

¶ 180 Rossi challenges the constitutionality of the prejudgment interest statute, which is

contained in paragraph (c) of section 2-1303 of the Code. See id. The legislature added

paragraph (c) to section 1303 in 2021 and declared that it would become effective on July 1,

2021. Pub. Act 102-6, § 5 (eff. July 1, 2021) (adding 735 ILCS 5/2-1303(c)). Paragraph (c)

provides, in relevant part, the following:

“(c) In all actions brought to recover damages for personal injury or

wrongful death resulting from or occasioned by the conduct of any other person

- 41 - or entity, whether by negligence, willful and wanton misconduct, intentional

conduct, or strict liability of the other person or entity, the plaintiff shall recover

prejudgment interest on all damages, except punitive damages, sanctions,

statutory attorney’s fees, and statutory costs, set forth in the judgment.

Prejudgment interest shall begin to accrue on the date the action is filed. If the

plaintiff voluntarily dismisses the action and refiles, the accrual of prejudgment

interest shall be tolled from the date the action is voluntarily dismissed to the date

the action is refiled. In entering judgment for the plaintiff in the action, the court

shall add to the amount of the judgment interest calculated at the rate of 6% per

annum on the amount of the judgment, minus punitive damages, sanctions,

statutory attorney’s fees, and statutory costs. If the judgment is greater than the

amount of the highest written settlement offer made by the defendant within 12

months after the later of the effective date of this amendatory Act of the 102nd

General Assembly or the filing of the action and not accepted by the plaintiff

within 90 days after the date of the offer or rejected by the plaintiff, interest added

to the amount of judgment shall be an amount equal to interest calculated at the

rate of 6% per annum on the difference between the amount of the judgment,

minus punitive damages, sanctions, statutory attorney’s fees, and statutory costs,

and the amount of the highest written settlement offer. If the judgment is equal to

or less than the amount of the highest written settlement offer made by the

defendant within 12 months after the later of the effective date of this amendatory

Act of the 102nd General Assembly or the filing of the action and not accepted by

the plaintiff within 90 days after the date of the offer or rejected by the plaintiff,

- 42 - no prejudgment interest shall be added to the amount of the judgment. For the

purposes of this subsection, withdrawal of a settlement offer by defendant shall

not be considered a rejection of the offer by the plaintiff. Notwithstanding any

other provision of this subsection, prejudgment interest shall accrue for no longer

than 5 years.

For any personal injury or wrongful death occurring before the effective

date of this amendatory Act of the 102nd General Assembly, the prejudgment

interest shall begin to accrue on the later of the date the action is filed or the

effective date of this amendatory Act of the 102nd General Assembly.” 735 ILCS

5/2-1303(c) (West Supp. 2021).

¶ 181 ii. The Standard of Review

¶ 182 “The constitutionality of a statute is a question of law that is reviewed de novo.”

Walker v. Chasteen, 2021 IL 126086, ¶ 30, 183 N.E.3d 153. “Statutes carry a strong presumption

of constitutionality, and this court will construe a statute to preserve its constitutionality if

reasonably possible. [Citation.] The party challenging the constitutionality of a statute bears the

burden of establishing the statute’s invalidity.” Id.

¶ 183 iii. The Constitutionality of Statutes

¶ 184 “When a statute is challenged as unconstitutional under substantive due process or

equal protection, our analysis is essentially the same.” Schultz v. Lakewood Electric Corp., 362

Ill. App. 3d 716, 720, 841 N.E.2d 37, 42 (2005). Similarly, challenges to statutes under the

special legislation clause are generally evaluated under the same standards that are applicable to

an equal protection challenge. Piccioli v. Board of Trustees of the Teachers’ Retirement System,

- 43 - 2019 IL 122905, ¶ 20, 137 N.E.3d 745. When a fundamental right is not at issue, courts apply

the rational basis test. Id. “Under [the rational basis] test, we ask whether the statutory

classification is rationally related to a legitimate state interest.” Id. “If there is any conceivable

basis for finding a rational relationship, the law will be upheld.” (Internal quotation marks

omitted.) Id.

¶ 185 Before continuing, we note that Rossi and his amici, the Illinois Health and

Hospital Association (IHHA), raise numerous objections to the prejudgment interest statute,

based on the “poor fit” between the statute’s ends and its means of achieving those ends. Among

other things, they assert that (1) the statute will not lead to more settlements, faster case

resolution, and less crowded dockets, (2) health care costs and malpractice premiums will greatly

increase, and (3) health care providers will stop providing services or will be dissuaded from

becoming nurses, doctors, and technicians in the first place. However, Rossi and IHHA’s parade

of horribles, even if true, is a matter calling for legislative, not judicial, judgment.

¶ 186 “[T]he fact that a law might be ill-conceived does not, in itself, create a

constitutional problem for us to fix ***.” Moline School District No. 40 Board of Education v.

Quinn, 2016 IL 119704, ¶ 28, 54 N.E.3d 825. “The judgments made by the legislature in crafting

a statute are not subject to courtroom fact-finding and may be based on rational speculation

unsupported by evidence or empirical data.” Big Sky Excavating, Inc. v. Illinois Bell Telephone

Co., 217 Ill. 2d 221, 240, 840 N.E.2d 1174, 1185-86 (2005). Accordingly, “[w]hether a statute is

wise or whether it is the best means to achieve the desired result are matters left to the

legislature, not the courts.” Id.

- 44 - ¶ 187 Rossi’s policy arguments are of no concern to this court; the only question for us

to decide is whether the prejudgment interest statute violates the Illinois Constitution. We

conclude that it does not.

¶ 188 b. The Right to Trial by Jury

¶ 189 Rossi first argues that the prejudgment interest statute violates his constitutional

right to a trial by jury as “heretofore enjoyed” under the Illinois Constitution. Ill. Const. 1970,

art. I, § 13. Rossi argues that the statute (1) deters defendants from exercising the right to a jury

trial, (2) interferes with the jury’s role in determining whether to award damages and the amount

of those damages, and (3) violates the separation of powers. We disagree.

¶ 190 To begin, the statute does not mention or involve a jury. The statute instructs the

trial court (1) when prejudgment interest is available, (2) how to calculate the time period for

which interest accrued, and (3) the amount of the judgment to which interest applies. The jury

simply does not enter the equation.

¶ 191 All parties agree that prejudgment interest in Illinois is not available at common

law and may be recovered only as provided by statute. “ ‘[I]t is well settled that interest is not

recoverable absent a statute or agreement providing for it.’ ” Tri-G, Inc. v. Burke, Bosselman &

Weaver, 222 Ill. 2d 218, 257, 856 N.E.2d 389, 412 (2006) (quoting City of Springfield v. Allphin,

82 Ill. 2d 571, 576, 413 N.E.2d 394, 396 (1980)); see id. at 256 (“A judgment is the judicial act

of the court. In contrast, the right to judgment interest, apart from contract, ‘does not emanate

from the controversy, or from the judgment, or from anything of a judicial nature. *** The

recovery of interest in this State, not contracted for, finds its only authority in the statute. It is

purely statutory.’ Blakeslee’s Storage Warehouses, Inc. v. City of Chicago, 369 Ill. 480,

482-83[, 17 N.E.2d 1] (1938).”). The prejudgment interest statute cannot interfere with the right

- 45 - heretofore enjoyed to have a jury determine damages. The jury has never been involved in

calculating or awarding prejudgment interest, and the prejudgment interest statute does not

interfere with the right to a jury trial in any respect.

¶ 192 Further, when the Illinois Supreme Court has upheld as constitutional other

sections of the Code despite arguments that those sections impede the right to jury trial, the court

expressly noted that those sections were “no greater impediment to the jury-trial right than a

statute setting a predetermined interest rate for judgments.” Bernier v. Burris, 113 Ill. 2d 219,

237, 497 N.E.2d 763, 772 (1986).

¶ 193 And courts in our sister states have similarly concluded that their prejudgment

interest statutes (1) were constitutional and (2) did not interfere with the right to a jury trial. See

Oden v. Schwartz, 71 A.3d 438, 456-57 (R.I. 2013) (concluding that prejudgment interest statute

was rationally related to legitimate state interest and did not affect right to trial by jury because

prejudgment interest was not “damages”); Galayda v. Lake Hospital Systems, Inc., 71 Ohio St.

3d 421, 428, 1994-Ohio-64, 644 N.E.2d 298, 302-03 (rejecting arguments identical to Rossi’s

and holding that prejudgment interest statute “does not violate the fundamental constitutional

right to trial by jury”). We agree with the reasoning of these cases and conclude they offer

further support for the Illinois Supreme Court’s conclusion in Bernier.

¶ 194 Rossi also claims that the prejudgment interest statute interferes with the jury’s

role as fact finder, specifically, as it relates to the issue of determining the amount of damages.

Rossi asserts that because the jury is instructed to determine the “duration” of the injury, the jury

is necessarily permitted to and does compensate plaintiffs for the lack of access to damages for

the duration of the lawsuit. See IPI Civil (2011) No. 30.01. We disagree.

- 46 - ¶ 195 Juries are presumed to follow instructions (Allen v. Sarah Bush Lincoln Health

Center, 2021 IL App (4th) 200360, ¶ 192, 185 N.E.3d 518), and no Illinois pattern jury

instruction even hints that a jury may compensate a plaintiff for the time value of money during

litigation. See Tri-G, Inc., 222 Ill. 2d at 252 (explaining that juries award damages based solely

on the instructions given by the trial court and may not award unauthorized damages). Nor has

Rossi pointed to any cases involving expert testimony or closing arguments on the subject of

prejudgment interest, which would lend some support for the alleged practice.

¶ 196 Rossi does not cite any cases holding that prejudgment interest constitutes

“damages” under Illinois law or that a jury is permitted to award prejudgment interest as

“damages” in tort cases. The Illinois Supreme Court has clearly stated that “assessment of

interest [upon a jury’s damages award between the verdict and the trial court’s entry of formal

judgment] is neither a penalty nor a bonus, but instead a preservation of the economic value of an

award from diminution caused by delay.” Illinois State Toll Highway Authority v. Heritage

Standard Bank & Trust Co., 157 Ill. 2d 282, 301, 626 N.E.2d 213, 223 (1993). The purpose of

section 2-1303 is to “preserve[ ] the value of the liquidated obligation by compensating the

judgment creditor for delays in payment.” Id. at 295. Accordingly, Rossi’s characterization of

judgment interest as “damages” is incorrect.

¶ 197 Because prejudgment interest “is neither a penalty nor a bonus, but instead a

preservation of the economic value of an award” (id. at 301), the statute does not interfere with

the jury’s determination of damages. Because damages are the province of the jury and

prejudgment interest—not being damages—is the province of the legislature, the statute does not

violate separate of powers principles. Tri-G, Inc., 222 Ill. 2d at 256 (“[T]he right to judgment

- 47 - interest, apart from contract, ‘does not emanate from the controversy, or from the judgment, or

from anything of a judicial nature.’ *** [Citation.]”).

¶ 198 c. Rossi’s Due Process Arguments

¶ 199 Rossi also argues the prejudgment interest statute is unconstitutional and violates

due process because it (1) applies retroactively to increase damages and destroy a complete

defense, (2) permits a double recovery because juries already include the time value of money

when assessing past damages, and (3) penalizes defendants for a plaintiff’s delays.

¶ 200 At the outset, because we have already concluded that the prejudgment interest

statute (1) does not constitute “damages” and (2) does not affect the right to a trial by jury, we

need not address those arguments again. We further note that the Illinois Appellate Court has

rejected arguments similar to those raised by Rossi and IHHA here, challenging the

constitutionality of postjudgment interest, and we agree with those holdings. See Mikolajczyk v.

Ford Motor Co., 374 Ill. App. 3d 646, 677-78 (2007), rev’d on other grounds, 231 Ill. 2d 516

(2008); Schultz, 362 Ill. App. 3d 716.

¶ 201 i. Unconstitutionally Retroactive

¶ 202 Rossi argues that because the common law did not permit the recovery of

prejudgment interest when the injury occurred and the lawsuit was filed in this case, he had a

vested right against the imposition of prejudgment interest, and the statute violates that right.

¶ 203 We disagree. “[N]o person has a vested interest in any rule of law, entitling him to

insist that it shall remain unchanged for his benefit.” (Internal quotation marks omitted.) Wingert

v. Hradisky, 2019 IL 123201, ¶ 33, 131 N.E.3d 535. “No constitutional right is violated by

changing a remedy available at common law. [Citation.] A vested right must be based upon more

than an expectation of the continuance of existing law ***.” Trexler v. Chrysler Corp., 104 Ill.

- 48 - 2d 26, 30, 470 N.E.2d 300, 302 (1984). In General Motors Corp. v. Pappas, 242 Ill. 2d 163, 187,

950 N.E.2d 1136, 1150 (2011), the Illinois Supreme Court noted, “It has long been held that the

legislature may increase, decrease or eliminate a statutory interest rate as long as it does not

interfere with rights which have already accrued and vested under a previous statutory rate.”

Because (1) prejudgment interest was not previously authorized by statute and (2) the jury had

not entered a verdict (under the common law rule of no prejudgment interest) prior to the

effective date of the prejudgment interest statute, Rossi did not have a vested right against being

charged prejudgment interest.

¶ 204 However, even assuming Rossi did have a vested right against the imposition of

prejudgment interest, the statute does not apply retroactively to violate that right. The plain text

of the statute demonstrates that it applies only prospectively: “For any personal injury or

wrongful death occurring before the effective date of this amendatory Act ***, the prejudgment

interest shall begin to accrue on the later of the date the action is filed or the effective date of this

amendatory Act ***.” 735 ILCS 5/2-1303(c) (West Supp. 2021).

¶ 205 Here, the Estate filed its complaint in 2012. Under the plain text of the statute, the

Estate could only recover prejudgment interest beginning on the effective date of the statute, July

1, 2021, to the date of the judgment on September 29, 2021, a period of three months. Because

the statute provides for prejudgment interest only in the years after its enactment, it does not

apply retroactively to Rossi.

¶ 206 Because prejudgment interest “is neither a penalty nor a bonus, but instead a

preservation of the economic value of an award” (Illinois State Toll Highway Authority, 157 Ill.

2d at 301), the statute does not (1) impose new costs on past behavior or (2) increase a damage

award.

- 49 - ¶ 207 ii. Double Recovery

¶ 208 For the reasons we explained earlier (supra ¶¶ 187-90), the prejudgment interest

statute does not affect the amount of a plaintiff’s recovery of damages, and Rossi provides no

relevant authority to support his assertion that juries in this state are, in fact, compensating

personal injury and wrongful death plaintiffs for the time value of monetary damages.

Accordingly, we conclude the statute does not permit multiple recoveries for the same injury.

¶ 209 Alternatively, defendants argue that juries are already awarding prejudgment

interest to personal injury plaintiffs. However, based again on our prior analysis (supra

¶¶ 187-90), we reject Rossi’s contention that somehow, despite well-settled law, juries regularly

award personal injury and wrongful death plaintiffs prejudgment interest.

¶ 210 iii. The Problem of Plaintiff’s Delay

¶ 211 Rossi next claims that the prejudgment interest statute “arbitrarily penalizes even

the most diligent defendant for any delay—regardless of whether the defendant is to blame for it,

and even if the delay is the plaintiff’s fault.” As an initial matter, we note again that the supreme

court has held that judgment interest is not a “penalty.” Illinois State Toll Highway Authority,

157 Ill. 2d at 301. Delay attribution is irrelevant; the interest calculation is the same regardless.

¶ 212 To the extent the statute is concerned with delay, the legislature seems to have

reached a determination regarding how to balance the issue by placing several limits on the

amount of prejudgment interest a plaintiff can receive. Given these limitations, we conclude that

the prejudgment interest statute reflects a legislative determination of the balance between

incentivizing both parties to settle and preventing either party from profiting by delay.

- 50 - ¶ 213 d. Special Legislation and Equal Protection

¶ 214 Next, Rossi argues that the prejudgment interest statute violates the Illinois

Constitution’s prohibition against special legislation. See Ill. Const. 1970, art. IV, § 13.

Specifically, Rossi contends that the statute impermissibly singles out personal injury and

wrongful death plaintiffs for a benefit unavailable to any other tort victim without a rational basis

to do so. We disagree.

¶ 215 i. The Applicable Law

¶ 216 “The special legislation clause prohibits the General Assembly from conferring a

special benefit or privilege upon one person or group and excluding others that are similarly

situated.” Crusius v. Illinois Gaming Board, 216 Ill. 2d 315, 325, 837 N.E.2d 88, 95 (2005).

Reviewing courts apply a two-part test to determine whether a law constitutes special legislation.

Piccioli, 2019 IL 122905, ¶ 18. “First, we must decide whether the statutory classification at

issue discriminates in favor of a select group and against a similarly situated group. Second, if

the classification does so discriminate, we must determine whether the classification is

arbitrary.” Id.

¶ 217 ii. This Case

¶ 218 Here, there is no question that the statute confers a benefit on a select group of

people—namely, personal injury and wrongful death plaintiffs that receive a favorable judgment.

Accordingly, we move to the second step of the analysis—namely, whether there is a rational

basis for the classification. Id. ¶ 20.

¶ 219 Rossi relies upon Allen v. Woodfield Chevrolet, Inc., 208 Ill. 2d 12, 802 N.E.2d

752 (2003), to support his position, but we conclude that case is distinguishable. In Allen, the

Illinois Supreme Court concluded that the amendments to the Consumer Fraud Act arbitrarily

- 51 - benefitted car dealers when sued under the Act, who were no different than any other consumer

fraud defendant. Id. at 29-33. Here, by contrast, the prejudgment interest statute is based on the

type of harm suffered by the plaintiff and not based on the type of person responsible for that

harm. Personal injury and wrongful death plaintiffs suffer unique challenges after they are

injured and while they seek compensation. They have often suffered life altering, catastrophic

damages for which prompt resolution is necessary to avoid great financial hardship in addition to

the injuries themselves. Their bodily integrity has been violated by the wrongful conduct in a

way that victims of property or reputational torts do not suffer. These special characteristics

constitute an entirely reasonable basis on which the legislature could decide to permit

prejudgment interest to this class of plaintiffs.

¶ 220 e. The Three-Readings Rule

¶ 221 Finally, Rossi and his amici, IHHA, argue that this court should declare the

prejudgment interest statute unconstitutional because it was passed in violation of the

three-readings rule of the Illinois Constitution. See Ill. Const. 1970, art. IV, § 8(d). That

requirement is set forth in section 8(d), which provides as follows:

“(d) A bill shall be read by title on three different days in each house. A

bill and each amendment thereto shall be reproduced and placed on the desk of

each member before final passage.

The Speaker of the House of Representatives and the President of the

Senate shall sign each bill that passes both houses to certify that the procedural

requirements for passage have been met.” Id.

- 52 - ¶ 222 Defendants acknowledge that the Illinois Supreme Court has adopted the

“enrolled bill doctrine,” which provides that the certification by the President of the Senate and

the Speaker of the House that constitutional procedures were complied with to pass the

legislation at issue (1) provides conclusive evidence of compliance and (2) is not subject to

judicial review. Friends of the Parks v. Chicago Park District, 203 Ill. 2d 312, 328-29, 786

N.E.2d 161, 171 (2003). Nonetheless, defendants point to the supreme court’s (1) repeated

expressions of frustration at the legislature’s failure to follow the three-readings rule,

demonstrating the legislature’s inability to police itself, and (2) threats to reexamine whether the

enrolled bill doctrine should be employed in the future if the legislature continues to flout the

constitution. Defendants contend that day has come, and this court should strike down the

prejudgment interest statute because its enactment was in violation of the three-readings rule.

¶ 223 The Estate and its amici, the Illinois Trial Lawyers Association (ITLA), ask this

court to follow the law of Illinois as stated by the supreme court. They remind us that (1) we are

constitutionally bound by Illinois Supreme Court precedent and (2) the matter of continued

adherence to the enrolled bill doctrine is for that court alone to decide. Mindful of the limits of

this court’s authority, we agree with the Estate and ITLA that we must follow the supreme

court’s decisions declaring the enrolled bill doctrine to be the law of Illinois. Accordingly, this

court cannot declare the prejudgment interest statute unconstitutional, even though it was passed

in violation of the three-readings rule.

¶ 224 Despite this conclusion, we wish to express our concern over the legislature’s

continued blatant flouting of constitutional provisions ratified by the people of the State of

Illinois in 1970 when they voted to adopt the new constitution. We first discuss how the

prejudgment interest statute was enacted.

- 53 - ¶ 225 i. The Enactment of the Prejudgment Interest Statute

¶ 226 Senate Bill 0072, which ultimately became the prejudgment interest statute, was

initially titled “An Act concerning civil law.” 102d Ill. Gen. Assem., Senate Bill 0072, 2021

Sess. In the Senate, that bill was described as “[c]reat[ing] the Electronic Wills and Remote

Witnesses Act.” Bill Status of SB0072, Ill. Gen. Assembly, https://ilga.gov/legislation/

BillStatus.asp?GAID=16&GA=102&DocNum=72&DocTypeID=SB&SessionID=110&LegID=

128357&SpecSess=&Session= (last visited June 28, 2023) [https://perma.cc/7MSB-D6RS]. On

its third reading in the Senate, on March 10, 2021, the transcript provides “Senate Bill 72.

(Secretary reads title of bill) 3rd Reading of the bill.” 102d Ill. Gen. Assem., Senate Proceedings,

March 10, 2021, at 10 (statements of Secretary Anderson). The Senate then passed Senate Bill

72.

¶ 227 After its first reading in the House, SB0072 was amended on March 17, 2021, by

“[r]eplac[ing] everything after the enacting clause” with text concerning the award of

prejudgment interest. Bill Status of SB0072, Ill. Gen. Assembly, https://ilga.gov/legislation/

BillStatus.asp?GAID=16&GA=102&DocNum=72&DocTypeID=SB&SessionID=110&LegID=

128357&SpecSess=&Session= (last visited June 28, 2023) [https://perma.cc/7MSB-D6RS]. The

bill received a second reading in the House on that same day and was further amended into its

present form on March 18, 2021. At its third reading, also on March 18, the bill was read by title

as “Senate Bill 72, a Bill for an Act concerning civil law. Third Reading of this Senate Bill.”

102d Ill. Gen. Assem., House Proceedings, March 18, 2021, at 96 (statements of Clerk Hollman).

After debate, the House passed the bill, the roll call of which describes the bill as follows:

“SENATE BILL 72 PROBATE-ELECTRONIC WILLS.” Senate Bill 72 then returned to the

Senate.

- 54 - ¶ 228 Despite the House’s completely transforming the bill, the Senate concurred in the

House amendments one week after the third reading in the House. The only Senate action

regarding now-transformed Senate Bill 72, which no longer had anything to do with electronic

wills or remote witnesses, was to vote on March 25, 2021, to concur with the House amendments

to that bill. Senate Bill 72, as amended by the House, was never read three times in the Senate.

¶ 229 ITLA insists that Senate Bill 72, the bill that would become the prejudgment

interest statute, was read by its title, which ITLA claims was “SB0072,” in each house three

times. However, the Illinois Supreme Court has made clear that the title of a bill is an important

consideration in determining a bill’s scope. See People v. Burdunice, 211 Ill. 2d 264, 268, 811

N.E.2d 678, 681 (2004); People v. Cervantes, 189 Ill. 2d 80, 85-86, 723 N.E.2d 265, 268 (1999);

People v. Reedy, 186 Ill. 2d 1, 9-12, 708 N.E.2d 1114, 1118-19 (1999); Johnson v. Edgar, 176

Ill. 2d 499, 516-18, 680 N.E.2d 1372, 1381-82 (1997). Those cases clearly identify the “title” of

a bill to be that portion that states, “an Act concerning ___” and not the bill’s numerical

designation. See Burdunice, 211 Ill. 2d at 268; Cervantes, 189 Ill. 2d at 85; Reedy, 186 Ill. 2d at

9; Johnson, 176 Ill. 2d at 516. ITLA’s claim that the legislature’s use of a mere numerical

denomination is sufficient makes a mockery of 1970 constitution’s requirement that the bill be

read by its title on three different days.

¶ 230 The supreme court has given plenty of guidance on what a sufficient title is; it is

hardly an onerous burden. Here, for example, in its roll call vote, the House set forth the title of

Senate Bill 0072 as “Probate-Electronic Wills,” which is a good example for title drafting. In this

very case, the legislature could have used the description it used on its own website for SB0072:

“CIV PRO-PREJUDGMENT INTEREST.” See Bill Status of SB0072, Ill. Gen. Assembly,

https://ilga.gov/legislation/BillStatus.asp?GAID=16&GA=102&DocNum=72&DocTypeID=

- 55 - SB&SessionID=110&LegID=128357&SpecSess=&Session= (last visited June 28, 2023)

[https://perma.cc/7MSB-D6RS].

¶ 231 We agree with the Fifth District’s observations in Accuracy Firearms, LLC v.

Pritzker, 2023 IL App (5th) 230035, ¶ 43, in which it wrote the following:

“The three-reading requirement ensures that the legislature is fully aware of the

contents of the bills upon which they will vote and allows the lawmakers to

debate the legislation. Equally relevant to the three-reading rule is the opportunity

for the public to view and read a bill prior to its passage, thereby allowing the

public an opportunity to communicate either their concern or support for proposed

legislation with their elected representatives and senators. Taken together, two

foundations of the bedrock of democracy are decimated by failing to require the

lawmakers to adhere to the constitutional principle.”

¶ 232 A bill’s being read by title on three different days in each house deliberately

slows down the legislative process so that legislators—and, more importantly, the general

public—have time to review the bill, discern and evaluate its contents, form an opinion, and

perhaps share that opinion with legislators and the public at large.

¶ 233 ii. The Problem With the Enrolled Bill Doctrine

¶ 234 In its brief, ITLA makes the following argument:

“Boldly trespassing upon the legislature’s constitutional authority to

regulate its own procedure would create chaos because every single statute passed

using the same procedure as Section 1303(c) would suddenly be ripe for

constitutional challenge. A small sampling of the statutes this court will suddenly

open to constitutional challenge include: SAFE-T Act (PA 101-0652) HB 3653,

- 56 - the Assault Weapons Ban (HB5471 of 102nd GA), the judicial restricting [sic]

statute (PA 102-0011) SB642, the Clean Energy Jobs Act (PA 1002-0662)

SB2408, Cannabis legislation (PA 101-0027) HB1438, the Video Gaming Act

(PA 96-0034) HB255, and the Asbestos Statute of Repose (PA 98-1131) SB2221.

Defendants’ invitation to set-off a legislative tsunami must be rejected.”

¶ 235 Perhaps unwittingly, ITLA essentially argues that all of these major pieces of

legislation apparently failed to comply with the Illinois Constitution. ITLA is basically saying

that the legislature is violating the three-readings rule so much that it would be chaos to make the

legislature accountable.

¶ 236 ITLA’s warnings about the judiciary “[b]oldly trespassing upon the legislature’s

constitutional authority to regulate its own procedure” smack of faux outrage about the notion

that the legislature could be made to follow the requirements of the Illinois Constitution. Yet, it

is hard to fault ITLA or the General Assembly for having such a dismissive attitude. After all,

the Illinois Supreme Court has long documented the legislature’s complete and utter disregard

for the requirements of the Illinois Constitution, but that court has done nothing in response. The

only logical conclusion is that the supreme court’s “reservation” of the right to revisit the

enrolled bill doctrine is nothing but bluster.

¶ 237 The Illinois Supreme Court last suggested some hypothetical line existed that the

legislature might cross in Friends of the Parks, 203 Ill. 2d at 329, when that court wrote the

following: “While separation of powers concerns militate in favor of the enrolled-bill doctrine

[citation], our responsibility to ensure obedience to the constitution remains an equally important

concern.” (Emphasis added.)

- 57 - ¶ 238 Justice Heiple, in his partial dissent in People v. Dunigan, 165 Ill. 2d 235, 256-58,

650 N.E.2d 1026, 1036-37 (1995), provided a concise and compelling explanation of why the

supreme court was legally wrong to interpret section 8(d) as adopting the enrolled-bill doctrine in

the first place.

“The interpretation of a constitutional provision depends, in the first

instance, on the plain meaning of its language. Next, it depends on the common

understanding of the citizens who, by ratifying the constitution, have given it life.

A court looks to the debates of the convention delegates only when a

constitutional provision is ambiguous. (Kalodimos v. Village of Morton

Grove[, 103 Ill. 2d 483, 492-93, 470 N.E.2d 266 (1984).]) There is no ambiguity

in the provision requiring the legislature to read a bill on three different days in

each house, the provision that a bill receive a majority vote in each house, or the

provision requiring the Speaker of the House and the President of the Senate to

sign each bill to certify that the procedural requirements for passage have been

met.

If it were deemed desirable to foreclose inquiries into the regularity of the

passage of bills, language similar to the enrolled-bill doctrine could have been

included within the constitution. There is no such language. Moreover, the Illinois

Constitution was adopted at a referendum. It did not become the law of the State

by either the discussions of the delegates or by their votes. The constitutional

convention merely submitted the document to the public for a vote. There is no

way that a voter could interpret the language of the constitution to mean that

procedural requirements for the passage of a bill could be overridden by the

- 58 - signatures of two State officers. In truth, the signatures of the officers are merely

prima facie evidence that the General Assembly has abided by the requirements

of the constitution. In other words, it raises a rebuttable presumption that the

requirements for passage have been met.

A literal adherence to this so-called enrolled-bill doctrine means that a bill

need never be read or presented in either house, need never receive a majority

vote, and need never even be voted on. Two people, the Speaker of the House and

the President of the Senate, need merely sign and certify a bill and, unless vetoed

by the Governor pursuant to article IV, section 9, the bill becomes ipso facto the

law of Illinois. Contrary to today’s ruling, I believe that the constitutional

requirements for the enactment of a bill should be followed and enforced. While

separation of powers is a valid doctrine and a presumption of legislative regularity

is its proper corollary, this court should reserve the right of review to ensure the

General Assembly’s compliance with constitutional mandates.” Id. at 257-58.

¶ 239 For the reasons discussed earlier, the delegates’ belief that self-policing would

occur was wholly mistaken.

¶ 240 In Accuracy Firearms, LLC, 2023 IL App (5th) 230035, ¶¶ 44-45, the Fifth

District recently wrote the following:

“To be sure, Illinois is not the only state that has faced or endured repeated

ethical lapses associated with gut and replace legislation. However, other states

have addressed this issue and demand compliance with the state constitutional

mandates. See Washington v. Department of Public Welfare of Pennsylvania, 188

A.3d 1135 (Pa. 2018); State ex rel. Ohio AFL-CIO v. Voinovich, 631 N.E.2d 582,

- 59 - 1994-Ohio-1 (Ohio 1994); Bevin v. Commonwealth ex rel. Beshear, 563 S.W.3d

74 (Ky. 2018); League of Women Voters of Honolulu v. State, 499 P.3d 382

(Haw. 2021).

Our lawmakers take an oath of office to ‘ “support the constitution of the

United States, and the constitution of the state of Illinois.” ’ 25 ILCS 5/2 (West

2020); Ill. Const. 1970, art. XIII, § 3. The same is required for the circuit court

judiciary (705 ILCS 35/2 (West 2020)), as well as the appellate and supreme

courts and certain members of the executive branch. Ill. Const. 1970, art. XIII,

§ 3. Allowing lawmakers to continue to ignore constitutional mandates under the

enrolled-bill doctrine, knowing full well the constitutional requirements were not

met, belittles the language of the oaths, ignores the need for transparency in

government, and undermines the language of this state’s constitution.”

¶ 241 We wholeheartedly agree with the Fifth District’s assessment. This court is

disheartened that we are compelled to reject Rossi’s challenge out of hand when the violation

appears so blatant. This court is placed in a strange position when it is constitutionally required

to turn a blind eye to a grave constitutional violation by a co-equal branch of government.

¶ 242 III. CONCLUSION

¶ 243 For the reasons stated, we affirm in part, reverse in part, and remand with

directions.

¶ 244 Affirmed in part, reversed in part, and remanded with directions.

- 60 - First Midwest Bank v. Rossi, 2023 IL App (4th) 220643

Decision Under Review: Appeal from the Circuit Court of Winnebago County, No. 12-L- 58; the Hon. Donna R. Honzel, Judge, presiding.

Attorneys Patrick M. Flaherty, of Kinnally Flaherty Krentz Loran Hodge & for Masur PC, of Aurora, and Bruce R. Pfaff, of Pfaff, Gill & Ports, Appellant: Ltd., of Chicago, for appellant.

Attorneys Scott L. Howie and Jeffrey E. Eippert, of Donohue Brown for Mathewson & Smyth LLC, and Robert Marc Chemers, of Pretzel Appellee: & Stouffer Chtrd., both of Chicago, and Matthew B. Smith and J. Matthew Thompson, of Quinn, Johnston, Henderson, Pretorius & Cerulo, of Peoria, for appellees.

Amicus Curiae: Hugh C. Griffin, of Hall Prangle & Schoonveld, LLC, of Chicago, for amicus curiae Illinois Health and Hospital Association.

Amicus Curiae: Nicholas Nepustil, of Benjamin & Shapiro, Ltd., of Chicago, for amicus curiae Illinois Trial Lawyers Association.

- 61 -