Roach v. Union Pacific Railroad

2014 IL App (1st) 132015, 19 N.E.3d 61

• Court: Appellate Court of Illinois
• Decided: September 5, 2014
• Docket: 1-13-2015
• Status: Unpublished

Opinion

2014 IL App (1st) 132015 No.1-13-2015 Opinion filed September 5, 2014

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

PRISCILLA ROACH, Special Administrator ) Appeal from the of the Estate of Clarence Roach, Deceased, ) Circuit Court of ) Cook County. Plaintiff-Appellee, ) ) No. 08 L 5401 v. ) ) UNION PACIFIC RAILROAD, ) The Honorable ) Irwin J. Solganick, Defendant-Appellant. ) Judge Presiding.

______________________________________________________________________________

JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Justices Rochford and Reyes concurred in the judgment and opinion.

OPINION

¶1 This suit was brought by plaintiff Priscilla Roach, the wife of decedent Clarence

Roach, as the special administrator of his estate, against his former employer, defendant

Union Pacific Railroad. The suit alleges that Clarence's death was the result of injuries that

he sustained while working at a Union Pacific rail yard, and it brings survival and wrongful

death claims.

¶2 On February 7, 2013, a jury returned a verdict in favor of plaintiff, awarding her a

total of $1,589,000 in damages. Defendant filed a posttrial motion for a new trial or, in the

alternative, for an order reducing the jury's award of $180,000 for lost earnings to No. 1-13-2015

$63,561.67. Plaintiff also filed a posttrial motion for costs. On March 23, 2013, the trial

court denied defendant's motion and granted plaintiff's motion in part, awarding her

$2,906.01 in costs which defendant does not challenge on appeal.

¶3 On this appeal, defendant states in its brief: "The facts of the decedent's underlying

injury are not at issue for purposes of this appeal. This appeal rather concerns the conduct of

the trial."

¶4 On appeal, defendant claims: (1) that the trial court abused its discretion by barring

defendant from asking plaintiff about the fact that she and her husband lived in separate

residences; (2) that the trial court abused its discretion by permitting the family physician to

offer an opinion about the decedent's cause of death; and (3) that the trial court erred by not

remitting a portion of the jury's award for "lost earnings" because the award exceeded the

amount stipulated to by the parties as the earnings that the decedent lost between his accident

and his return to work.

¶5 BACKGROUND

¶6 The following facts are not in dispute on this appeal.

¶7 The decedent, Clarence Roach, was a Union Pacific carman who worked at Union

Pacific's California Avenue Coach Yard, located on the west side of Chicago, Illinois,

earning approximately $60,000 per year. The California Avenue Coach Yard serves as an

area for Union Pacific to inspect, repair and maintain commuter railcars. On February 1,

2008, while working at the California Avenue Coach Yard, the decedent was struck by a

train performing a "shoving" movement, which involves switching rail cars onto certain

commuter trains based on their maintenance schedules. As a result, the decedent sustained

several injuries, including a degloving injury to his right leg. He was treated by several

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physicians, including Dr. John Sullivan, a trauma surgeon; Dr. Simon Lee, an orthopedic

surgeon; Dr. John Polley, a plastic surgeon; and Dr. Manzoor Shah, an internist and the

decedent's family physician, whose opinion was the subject of a motion in limine at issue on

this appeal. A little over a year later, on March 9, 2009, the decedent returned to work.

¶8 On May 16, 2008, after the accident but before returning to work, the decedent filed a

single-count complaint against Union Pacific alleging a negligence claim for damages under

the Federal Employers Liability Act (45 U.S.C. § 51 et seq. (2006)). In March 2010, while

this case was still pending, the decedent suffered a stroke and subsequently died on May 15,

2010, at the age of 57. After his death, plaintiff amended the complaint to allege that her

husband's death was the result of the 2008 accident and to assert survival and wrongful death

claims.

¶9 Prior to trial, the parties brought two motions in limine which are at issue on this

appeal. First, plaintiff moved to bar questions concerning the fact that plaintiff and the

decedent lived in separate residences. Although Union Pacific acknowledged that plaintiff

and the decedent had frequent contact after the accident, it opposed the motion on the ground

that this fact was relevant to the basis of plaintiff's knowledge about the decedent's pain,

suffering and loss of function. The trial court granted the motion, stating in a written order

that defendant was barred from making "any reference to the marital status and living

arrangements of the Plaintiff and decedent." In addition, defendant moved to bar the

testimony of family physician, Dr. Shah, particularly regarding the decedent's cause of death,

which was denied.

¶ 10 Since neither the nature of the decedent's underlying injuries nor the amount of

damages, except for the stipulation of lost earnings, is at issue on this appeal, we only

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summarize the evidence at trial. At trial, plaintiff testified regarding the decedent's pain and

suffering and called a number of occurrence and medical witnesses, including Dr. Shah,

whose evidence deposition was read into the record; Dr. Sullivan, the decedent's trauma

surgeon; Dr. Simon Lee, the decedent's orthopedic surgeon; and Dr. Polley, the decedent's

plastic surgeon, whose video deposition was played to the jury.

¶ 11 Defendant Union Pacific also called several witnesses, including Dr. Joseph Hartman,

a board-certified internist and cardiologist who was retained as an expert witness and who

opined that the decedent's workplace accident in 2008 was unrelated to his death in 2010.

¶ 12 In addition, the parties entered the following stipulation:

"STIPULATION REGARDING LOST WAGES

It is stipulated on behalf of the parties by their respective attorneys, for the

purposes of the trial of this case, and for no other purpose, as follows:

1. Clarence Roach was off of work from February 2, 2008[,] through March 9,

2009,

2. Clarence Roach's net lost wages from that time period total $63,561.67.

3. The amount of $63,561.67 may be admitted into evidence as the amount of

wages that Clarence Roach lost from February 2, 2008[,] through March 9, 2009."

¶ 13 On February 7, 2013, the jury returned a verdict for plaintiff and completed the

following jury verdict form as follows:

"We, the jury find for the Estate of Clarence Roach, deceased, and against the

Union Pacific Railroad.

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We further find the following:

First: We find that the total amount of damages suffered by the Estate of

Clarence Roach, deceased is $ 2,270,000, itemized as follows:

Loss of money, benefits, goods and services $ 50,000

Disfigurement experienced by Clarence Roach $ 380,000

Disability/Loss of a Normal Life experienced by Clarence Roach $ 845,000

Pain and Suffering experienced by Clarence Roach $ 815,000

Loss of Earnings experienced by Clarence Roach $ 180,000

Second: Assuming that 100% represents the total combined negligence of all

persons whose negligence proximately caused the death and injury to Clarence

Roach, we find the percentage of negligence attributable to each as follows:

a. Clarence Roach 30%

b. Union Pacific 70%

Third: After reducing the plaintiff's total damages from paragraph 'First' by the

percentage of negligence if any, of Clarence Roach from line (a) in paragraph

'Second,' we award the Estate of Clarence Roach recoverable damages in the amount

of $ 1,589,000."

¶ 14 As already stated, defendant's posttrial motion for a new trial and, in the alternative, for

remittitur was denied, and plaintiff's posttrial motion for costs was granted in part, resulting

in an award for costs of $2,906.01 which is not at issue on this appeal. After the trial court's

ruling on the posttrial motions on May 23, 2013, defendant filed a notice of appeal on June

19, 2013, and this appeal followed.

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¶ 15 ANALYSIS

¶ 16 On appeal, defendant claims: (1) that the trial court abused its discretion by barring

defendant from asking plaintiff about the fact that she and her husband lived in separate

residences; (2) that the trial court abused its discretion by permitting the family physician to

offer an opinion about the decedent's cause of death; and (3) that the trial court erred by not

remitting a portion of the jury's award for "lost earnings" because the award exceeded the

amount stipulated to by the parties as the earnings that the decedent lost between the accident

and his return to work. For the reasons that follow, we affirm.

¶ 17 I. Separate Residences

¶ 18 Defendant claims that the trial court's order barring it from asking about plaintiff's

and the decedent's separate residences "essentially" barred it from cross-examining plaintiff

about her knowledge of the decedent's pain and suffering.

¶ 19 As both parties acknowledge, our standard of review on this issue is highly

deferential to the trial court. Questions concerning the admission of evidence at trial are left

to the sound discretion of the trial court, and we will not reverse the trial court absent an

abuse of that discretion. Matthews v. Avalon Petroleum Co., 375 Ill. App. 3d 1, 9 (2007)

(citing Brax v. Kennedy, 363 Ill. App. 3d 343, 355 (2005)). This same deferential standard

also applies to a trial court's decision on a motion in limine. Maggi v. RAS Development,

Inc., 2011 IL App (1st) 091955, ¶ 61.

¶ 20 An abuse of discretion occurs only when the trial court's ruling is arbitrary, fanciful,

unreasonable, or when no reasonable person would adopt the trial court's view. People v.

Cerda, 2014 IL App (1st) 120484, ¶ 183; Matthews, 375 Ill. App. 3d at 9 (citing Brax, 363

Ill. App. 3d at 355). In determining whether there has been an abuse of discretion, the

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appellate court does not substitute its own judgment for that of the trial court, or even

determine whether the trial court exercised its discretion wisely. Maggi, 2011 IL App (1st)

091955, ¶ 61.

¶ 21 Defendant concedes in its brief to this court that plaintiff had "frequent contact" with

the decedent. Plaintiff testified that she and the decedent had been married for 27 years and

that she saw her husband almost every day after the accident. In addition, she and the

decedent went out to eat every week or weekend; she was present for most of the house calls

made to the decedent by doctors and nurses; she observed the decedent's headaches during

family dinners; and she would frequently act as his chauffeur. Plaintiff testified that the

decedent was "traumatized" and in regular pain after the accident, that his personality

changed for the worse, and that he was depressed.

¶ 22 The trial court's written order barred "any reference to the marital status and living

arrangements of the Plaintiff and decedent." However, it did not bar questions about the

frequency of her observations, to which plaintiff testified.

¶ 23 Courts retain broad discretion in making evidentiary rulings and may properly

exclude evidence of limited probative value. Holston v. Sisters of the Third Order of St.

Francis, 165 Ill. 2d 150, 176-77 (1995) (the trial judge did not abuse his discretion by

granting plaintiffs' motion to bar any reference to the fact that the plaintiff husband and the

decedent had informally separated, although the plaintiff had a claim for loss of consortium,1

because "[t]he trial judge was in the best position to evaluate the relevance of the evidence"

and the defendant failed to persuade the judge that the separation had "any significant or

lasting impact on the marriage"). We find no abuse of discretion here.

1 In the case at bar, plaintiff presented no claim for loss of consortium. 7 No. 1-13-2015

¶ 24 II. Family Physician's Opinion About Cause of Death

¶ 25 Defendant also claims that the trial court erred by permitting Dr. Shah, the decedent's

family physician, to offer an opinion about the decedent's cause of death.

¶ 26 A. No Waiver

¶ 27 As a preliminary matter, plaintiff claims that this issue is waived for our review.

¶ 28 A denial of a motion in limine does not preserve an objection to disputed evidence

later introduced at trial. Drakeford v. University of Chicago Hospitals, 2013 IL App (1st)

111366, ¶ 38 (citing Brown v. Baker, 284 Ill. App. 3d 401, 406 (1996)). When a motion in

limine is denied, a contemporaneous objection to the evidence at the time it is offered is

required to preserve the issue for review. Drakeford, 2013 IL App (1st) 111366, ¶ 38 (citing

Brown, 284 Ill. App. 3d at 406). Absent the requisite objection, the right to raise the issue on

appeal is waived. Drakeford, 2013 IL App (1st) 111366, ¶ 38 (citing Illinois State Toll

Highway Authority v. Heritage Standard Bank & Trust Co., 163 Ill. 2d 498, 502 (1994)).

¶ 29 In the case at bar, defendant filed two motions in limine seeking to bar Dr. Shah's

testimony at trial, which were denied. At trial, plaintiff read into the record Dr. Shah's

evidence deposition. On the morning of the day that Dr. Shah's evidence deposition was

going to be read into the record, defendant's attorney renewed his objection to this testimony,

stating:

"DEFENSE COUNSEL: *** Finally, one more thing, your Honor, because I

believe the evidence deposition of Dr. Shah is going to be read this morning, I just

want to restate and preserve our objection to Dr. Shah's testimony in its entirety

which we've discussed in the motions in limine and as pursuant to Rule 213.

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THE COURT: The Court's ruling stands. Your objections are made. They are in

the record to preserve the issue.

DEFENSE COUNSEL: Thank you, your Honor."

¶ 30 Dr. Shah's evidence deposition was then read into the record that afternoon, and

defendant did not repeat its objection immediately prior to the reading. Plaintiff thus claims

that defendant waived this issue for our review by failing to repeat in the afternoon what it

had stated in the morning. Although an objection is required both contemporaneously and

during trial, plaintiff fails to cite any case law to support the proposition that the same day is

not sufficiently contemporaneous.

¶ 31 Faced with a similar issue, the appellate court previously observed:

"[T]he plaintiff cites no authority that suggests that once an objection to an evidence

deposition is ruled upon by the trial court the objecting party must object again when

the testimony is read to the jury in order to preserve the objection for appellate

review. We are convinced that no such authority exists, as such an absurd rule would

frustrate the very reason why evidence deposition objections are ruled upon by the

trial court in advance of trial." Soto v. Gaytan, 313 Ill. App. 3d 137, 140-41 (2000).

¶ 32 Therefore, we find that this issue is not waived for our review.

¶ 33 B. Rule 213

¶ 34 Defendant claims that the trial court erred in allowing Dr. Shah to testify about the

decedent's cause of death because plaintiff violated the disclosure requirements in Illinois

Supreme Court Rule 213 (eff. Jan. 1, 2007) with respect to his testimony.

¶ 35 Illinois Supreme Court Rule 213(f) (eff. Jan. 1, 2007) provides "[u]pon written

interrogatory, a party must furnish the identities and addresses of witnesses who will testify

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at trial" and must provide certain information. The required information varies depending on

whether a witness is: (1) a lay witness; (2) an independent expert witness; or (3) a controlled

expert witness. Ill. S. Ct. R. 213(f) (eff. Jan. 1, 2007). Section (f) of Supreme Court Rule

213 has a separate subsection for each type of witness.

¶ 36 Dr. Shah was obviously not a lay witness, which the rule defines as "a person giving

only fact or lay opinion testimony," and neither party argues that he was. Ill. S. Ct. R.

213(f)(1) (eff. Jan. 1, 2007). Similarly, Dr. Shah, who was the decedent's treating physician,

was not a controlled expert witness, which the rule defines as "a person giving expert

testimony who is the party, the party's current employee, or the party's retained expert." Ill.

S. Ct. R. 213(f)(3) (eff. Jan. 1, 2007). Although defendant argues that Dr. Shah was a

controlled expert witness, defendant readily concedes that "[a] treating physician is

considered a Rule 213(f)(2) independent expert witness." Cetera v. DiFilippo, 404 Ill. App.

3d 20, 39 (2010) (" ' "Independent expert witnesses' include persons such as *** a doctor

who gives expert testimony based on the doctor's treatment of the plaintiff's injuries." ' ".

(quoting Ill. S. Ct. R. 213(f), Committee Comments (adopted Mar. 28, 2002))). Nonetheless,

defendant argues Dr. Shah was "converted" into a controlled expert witness when plaintiff

sent him articles and medical records. What defendant overlooks is that the word in the rule

is "retained," and defendant does not argue that plaintiff ever retained Dr. Shah as an expert

for litigation. Cf. Wakeford v. Rodehouse Restaurants of Missouri, Inc., 154 Ill. 2d 543, 547

(1992) (interpreting the word "retained" in the former Illinois Supreme Court Rule 220 (eff.

Oct. 1, 1984), which previously governed disclosure of expert testimony, our supreme court

held that treating physicians are not "retained" and thus the rule did not apply to them). Thus,

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for purposes of Rule 213 and according to established case law, Dr. Shah, as plaintiff's

treating physician, was an independent expert witness.

¶ 37 The rule provides that: "For each independent expert witness, the party must identify

the subjects on which the witness will testify and the opinions the party expects to elicit." Ill.

S. Ct. R. 213(f)(2) (eff. Jan. 1, 2007). The rule further provides, with respect to this type of

witness, that: "An answer is sufficient if it gives reasonable notice of the testimony, taking

into account the limitations on the party's knowledge of the facts known by and opinions held

by the witness." Ill. S. Ct. R. 213(f)(2) (eff. Jan. 1, 2007).

¶ 38 Although a party has a continuing duty to supplement or amend any prior

interrogatory answer when new information becomes known to that party (Ill. S. Ct. R. 213(i)

(eff. Jan. 1, 2007)), "[i]nformation disclosed in a discovery deposition need not be later

specifically identified in a Rule 213(f) answer" (Ill. S. Ct. R. 213(g) (eff. Jan. 1, 2007)).

¶ 39 "[U]pon objection at trial, the burden is on the proponent of the witness to prove the

information was provided in a Rule 213(f) answer or in the discovery deposition." Ill. S. Ct.

R. 213(g) (eff. Jan. 1, 2007).

¶ 40 Whether a party has satisfied its burden to prove that its answer or the discovery

deposition provided reasonable notice is a question within the sound discretion of the trial

court, and the trial court's ruling will not be disturbed absent an abuse of that discretion.

Sullivan v. Edward Hospital, 209 Ill. 2d 100, 109 (2004); Prairie v. Snow Valley Health

Resources, Inc., 324 Ill. App. 3d 568, 576 (2001) (a trial court's decision about whether an

expert's opinion was adequately disclosed will be reversed "only if no reasonable person

would agree with the decision"). The purpose of Rule 213 is to avoid surprise. Sullivan, 209

Ill. 2d at 109-10.

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¶ 41 The question for us is whether the trial court abused its discretion in finding that

plaintiff satisfied its burden in showing that its answer or discovery deposition provided

reasonable notice of Dr. Shah's testimony, "taking into account the limitations on the party's

knowledge of the facts known by and opinions held by the witness." Ill. S. Ct. R. 213(f)(2)

(eff. Jan. 1, 2007).

¶ 42 At his discovery deposition, Dr. Shah testified extensively. Dr. Shah treated decedent

from 1999 to 2009. Prior to the incident decedent was in general excellent health but was

being followed for mild hypertension. The hypertension was well managed with medication.

Relevant to defendant's arguments, Dr. Shah testified decedent's blood pressure increased

significantly after the train collision. He stated that both trauma and pain can intensify high

blood pressure problems. Dr. Shah testified that the decedent's increased blood pressure

problems that he experienced after the train collision could be a cause of his stroke. He also

testified to a reasonable degree of medical certainty that the decedent's increase in blood

pressure after the train collision could have been related to multiple factors, including the

"preexisting blood pressure and the trauma increasing his blood pressure and increasing his

illness." Additionally, Dr. Shah testified that he had an opinion, to a reasonable degree of

medical certainty, that the decedent's increased blood pressure after the train collision was a

contributing factor or cause of the decedent's stroke "to some degree." Then, during cross-

examination at the discovery deposition, the railroad's counsel questioned Dr. Shah as to the

basis of his opinions as to the connections between the trauma and the spike in blood

pressure and decedent's stroke. Defense counsel also asked Dr. Shah if the decedent's stroke

could be entirely unrelated to his hypertension. Dr. Shah answered that while older people

do develop strokes and strokes come on people suddenly, "looking at this [decedent] with

12 No. 1-13-2015

severe hypertension, probably severe hypertension was the cause of this." Further, the

railroad's counsel described Dr. Shah's opinion as "that the high blood pressure was a

contributing cause to his death," and Dr. Shah agreed. We conclude that the discovery

deposition gave defendant sufficient notice that Dr. Shah believed decedent's hypertension

was aggravated by the trauma and led to his stroke and death.

¶ 43 Later, at Dr. Shah's evidence deposition, he testified that the decedent's injuries from

the train collision "contributed to his hypertension which probably caused his stroke" and he

"strongly believed" that if the decedent had not sustained the leg injury he would still be

alive.

¶ 44 We cannot find that the difference between "to some degree" and "probably" is

enough to hold that the trial court abused its discretion in ruling that the former testimony

provided reasonable notice of the latter testimony. Prairie, 324 Ill. App. 3d at 577 ("a

witness is not required to use the exact words previously used in a discovery deposition").

The word "some" can mean "being a considerable number or quantity," while "probably"

means "most likely." The American Heritage Dictionary of the English Language,

http://ahdictionary.com/word/search/some (last visited July 16, 2014). The difference

between these words is not enough to trigger an abuse of discretion. It was also not enough

to trigger any surprise on the part of the railroad's counsel who immediately described the

doctor's opinion at the discovery deposition as "that the high blood pressure was a

contributing cause to his death." As a result, no disclosure violation occurred.

¶ 45 C. Adequate Foundation

¶ 46 Defendant also claims that plaintiff failed to lay a sufficient foundation for Dr. Shah's

opinion concerning the cause of the decedent's death.

13 No. 1-13-2015

¶ 47 1. Foundation for Medical Expert

¶ 48 Our supreme court has articulated in several prior decisions " 'the requirements

necessary to demonstrate an expert physician's qualifications and competency to testify.' "

Sullivan v. Edward Hospital, 209 Ill. 2d 100, 112 (2004) (quoting Jones v. O'Young, 154 Ill.

2d 39, 43 (1992), citing Purtill v. Hess, 111 Ill. 2d 229, 242-43 (1986)). These are

" 'foundational requirements and form a threshhold determination.' " McWilliams v. Dettore,

387 Ill. App. 3d 833, 843 (2009) (quoting Alm v. Loyola University Medical Center, 373 Ill.

App. 3d 1, 5 (2007), citing Sullivan, 209 Ill. 2d at 115).

¶ 49 " 'First, the physician must be a licensed member of the school of medicine about

which he [or she] proposes to testify." Sullivan, 209 Ill. 2d at 112 (quoting Jones, 154 Ill. 2d

at 43, citing Purtill, 111 Ill. 2d at 242-43). Second, the expert witness must show that he or

she is familiar with the methods, procedures, and treatments ordinarily observed by other

similarly situated physicians. Sullivan, 209 Ill. 2d at 112 (quoting Jones, 154 Ill. 2d at 43,

citing Purtill, 111 Ill. 2d at 242-43); see also McWilliams, 387 Ill. App. 3d at 843 (discussing

Sullivan).

¶ 50 With respect to the phrase "school of medicine" in the first requirement, our supreme

court has stated that the "various schools of medicine" include medicine, surgery, physical

therapy, nursing, pharmacy, dental surgery, podiatry and optometry. (Internal quotation

marks omitted.) Sullivan, 209 Ill. 2d at 113. The supreme court explained that the

foundational requirement of being licensed in a particular school derives from the fact that

various state statutes "provide for different training" for each school. (Internal quotation

marks omitted.) Sullivan, 209 Ill. 2d at 113. However, " '[w]hether the expert is qualified to

testify is not dependent on whether he is a member of the same specialty or subspecialty ***

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but, rather, whether the allegations *** concern matters within his [or her] knowledge and

observation.' " (Emphasis in original.) Sullivan, 209 Ill. 2d at 114 (quoting Jones, 154 Ill. 2d

at 43).

¶ 51 Whether the two foundational requirements have been met is a legal question, which

we review de novo. Williams, 387 Ill. App. 3d at 844.

¶ 52 Once the two foundational requirements are met, the trial court then has the discretion

to determine whether a physician is "competent" to state his or her opinion regarding the

medical issue. Sullivan, 209 Ill. 2d at 113.

¶ 53 Although defendant uses the term "foundation" and claims that a de novo standard of

review applies, defendant does not appear to be challenging Dr. Shah on either of the two

foundational requirements. Defendant does not claim either that Dr. Shah is not a medically

licensed physician or that he is not familiar with the methods, procedures, and treatments

ordinarily observed by other similarly situated physicians who treat hypertension. Sullivan,

209 Ill. 2d at 112. In fact, Dr. Shah has practiced medicine since 1978 and is board certified

in both internal medicine and pulmonary medicine. Rather, defendant argues that Dr. Shah

was not competent to state an opinion about the cause of the decedent's death because he did

not treat the decedent during the approximately 17 months before the decedent's death.

¶ 54 To determine whether a medical expert is qualified to give an opinion, courts employ

a "three-step analysis: the two foundational requirements of licensure and familiarity, and

the discretionary requirement of competency." Sullivan, 209 Ill. 2d at 115; McWilliams, 387

Ill. App. 3d at 843. See also Gil v. Foster, 157 Ill. 2d 304, 317 (1993) (the trial court abused

its discretion in limiting a doctor's testimony because he testified that he relied on the

statements of specialists in his regular practice).

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¶ 55 In this third step, in which courts act as "the gatekeeper" allowing through only

reliable and relevant evidence for consideration by the jury, courts employ "a totality of the

circumstances" approach. Soto, 313 Ill. App. 3d at 147; see also Verbance v. Altman, 324 Ill.

App. 3d 494, 502 (2001) ("Our supreme court has expressed approval of Soto's gatekeeping

approach." (citing Decker v. Libell, 193 Ill. 2d 250, 254 (2000))). When a party challenges

the reliability of a treating physician's opinion about the permanency or prognosis of a

condition based on the lack of a recent examination, courts will consider a number of factors,

including the length of time since the last examination, the length of time the patient was in

treatment with the treating physician, and the nature of the patient's injuries or conditions.

Decker, 193 Ill. 2d at 254 (discussing factors and applying an abuse-of-discretion standard);2

Soto, 313 Ill. App. 3d at 147 (discussing factors), 142 ("reject[ing] as unsound any supposed

distinction between 'permanency' and 'prognosis' "), 148 (applying an abuse-of-discretion

standard). There is no "five-part test" regarding particular factors or "a bright-line rule"

about the number of months elapsed; rather, the decision is left up to the sound discretion of

the trial judge based on the totality of the circumstances. Soto, 313 Ill. App. 3d at 147 (this

"list" of factors "does not constitute a five-part test"), 145-46 (there is no "bright-line rule"

considering "solely" the number of months elapsed since "the last exam"). See also

Verbance, 324 Ill. App. 3d at 503 ("A trial judge must have considerable leeway in deciding

*** how to go about determining whether a particular [medical] expert's testimony is

reliable.").

2 In Decker, our supreme court cited with approval four appellate court cases on this issue which we discuss and apply in the section below: Soto, 313 Ill. App. 3d at 145-48; Knight v. Lord, 271 Ill. App. 3d 581, 587 (1995); Marchese v. Vincelette, 261 Ill. App. 3d 520, 526-27 (1994); and Courtney v. Allied Filter Engineering, Inc., 181 Ill. App. 3d 222, 231 (1989). 16 No. 1-13-2015

¶ 56 Thus, in the case at bar, we will review only for an abuse of discretion the trial court's

ruling that the 17-month lapse did not render Dr. Shah incompetent to testify about cause of

death.

¶ 57 2. Seventeen-Month Lapse of Time

¶ 58 Defendant argues that, since Dr. Shah lacked knowledge of the decedent's condition

immediately prior to the decedent's death, his opinion about the cause of death was

unreliable.

¶ 59 Defendant also argues that Dr. Shah lacked "any particularized medical knowledge

regarding the decedent's cause of death." However, this argument is a tautology. If one

accepts Dr. Shah's testimony that the increase in severity of decedent's hypertension, or

abnormally high blood pressure, after the trauma was a contributing cause to the decedent's

death, then Dr. Shah did have particularized medical knowledge about this condition for

which he had treated the decedent for 10 years. This argument makes sense only if one first

assumes that Dr. Shah is incorrect and that the increase in decedent's hypertension was not a

contributing cause. Thus, defendant's primary challenge to Dr. Shah's competency is the 17-

month lapse in treatment.

¶ 60 Defendant argues that the "speculative" nature of Dr. Shah's testimony is shown by

the change in his opinion. However, as we already discussed above, any change was not

significant enough to affect even the disclosure requirements. At Dr. Shah's discovery

deposition, he testified that he had an opinion, to a reasonable degree of medical certainty,

that the decedent's increased blood pressure after the train accident was a contributing factor

or cause of the decedent's stroke "to some degree." Then, during cross-examination at the

discovery deposition, the railroad's counsel acknowledged that Dr. Shah's opinion was "that

17 No. 1-13-2015

the high blood pressure was a contributing cause to his death." Later, at Dr. Shah's evidence

deposition, he testified that the accident "contributed to his hypertension which probably

caused his stroke." As we observed above, we cannot find that the trial court abused its

discretion based on this difference in word choice. Prairie, 324 Ill. App. 3d at 577 ("a

witness is not required to use the exact words previously used in a discovery deposition").

¶ 61 We turn now to defendant's primary argument regarding Dr. Shah's reliability, which

is that the trial court abused its discretion in allowing him to testify despite a 17-month lapse

in treatment.

¶ 62 In support, defendant cites Phelps v. Chicago Transit Authority, 224 Ill. App. 3d 229,

232 (1991), where this court held that the plaintiff did not violate the disclosure requirements

of former Illinois Supreme Court Rule 220 (eff. Oct. 1, 1984) by not disclosing the fact that

his treating physician examined him on the day of trial. This case has little to no bearing on

the issue before us. Defendant also cites Knight v. Lord, 271 Ill. App. 3d 581, 621 (1995),

where the appellate court held that the trial court did not abuse its discretion in barring a

doctor's opinion where there was a 28-month gap. This case is readily distinguishable

because, first, the gap in Knight was almost a year longer than in the case at bar and, second,

the abuse-of-discretion standard supported barring the doctor's opinion in Knight, while in

our case it has just the opposite effect. Thus, neither case is persuasive.

¶ 63 First, we observe that no abuse of discretion was found in cases where the gap was

similar or even longer. Decker, 193 Ill. 2d at 255 (the trial court did not abuse its discretion

in admitting a treating chiropractor's testimony where he had treated plaintiff for 4 months,

and 14 months had elapsed between the last treatment and the chiropractor's evidence

deposition); Thurmond v. Monroe, 235 Ill. App. 3d 281, 291 (1992) (a treating physician's

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opinion about the permanency of the plaintiff's condition was not barred despite a gap of

several years between the time of the doctor's examination and the time of trial); Courtney v.

Allied Filter Engineering, Inc., 181 Ill. App. 3d 222, 231 (1989) (although the treating

physician's "prognosis" was "formed over four years ago," his testimony was admissible

where the doctor had treated plaintiff for two years and after three surgeries and extensive

rehabilitation).

¶ 64 Second, in the case at bar, the 17-month gap must be balanced against the fact that

Dr. Shah had treated plaintiff for 10 years. Marchese v. Vincelette, 261 Ill. App. 3d 520, 526

(1994) (the trial court did not abuse its discretion in allowing a treating physician's testimony

about the permanency of plaintiff's condition although he had not examined her for 15

months prior to trial "because the opinion was reached after a course of treatment which

extended over a period of years"); Cf. Soto, 313 Ill. App. 3d at 139, 148 (the trial court

abused its discretion in admitting a treating chiropractor's opinion about the permanency of

plaintiff's low-back pain where the chiropractor last saw her 30 months prior to trial and he

had treated her for only 6 months).

¶ 65 In the case at bar, Dr. Shah was the decedent's primary physician for 10 years,

treating the decedent for hypertension from 1999 to 2009, and treating him for this condition

both before and after the accident which occurred on February 1, 2008. The challenged

opinion concerned this hypertension, the accident's exacerbation of it, and its probable effect.

See Verbance, 324 Ill. App. 3d at 501, 505 (the trial court did not abuse its discretion by

permitting a treating physician to discuss the proximate cause of plaintiff's condition, even

though he did not treat him at the time that the condition arose). As a result of the length of

Dr. Shah's treatment and the nature of his opinion, his testimony was admissible. Therefore,

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the gap in treatment went to the weight to be given his testimony by the jury. Decker, 193

Ill. 2d at 253-54.

¶ 66 III. Remittitur

¶ 67 Lastly, defendant argues that the trial court erred by not remitting a portion of the

jury's award for "lost earnings" where the award exceeded the amount stipulated to by the

parties as the earnings that the decedent lost between his accident and his return to work.

¶ 68 Remittitur has long been recognized as a part of Illinois law and application of this

doctrine has been a "traditional and inherent" power of the courts that is exercised, when

appropriate, to correct excessive jury verdicts. Lebron v. Gottlieb Memorial Hospital, 237

Ill. 2d 217, 234 (2010) (citing Best v. Taylor Machine Works, 179 Ill. 2d 367, 412 (1997)). Its

application presents a question of law for the court, and thus we review it de novo. Lebron,

237 Ill. 2d at 234 (citing Best, 179 Ill. 2d at 411-12). De novo consideration means that we

perform the same analysis a trial judge would perform. Khan v. BDO Seidman, LLP, 408 Ill.

App. 3d 564, 578 (2011).

¶ 69 Where a jury verdict falls outside the range of fair and reasonable compensation or

results from passion or prejudice, or if it is so large that it shocks the judicial conscience,

then a court has a duty to correct it by ordering a remittitur of a portion of the damages, with

the plaintiff's consent. Lebron, 237 Ill. 2d at 234; Best, 179 Ill. 2d at 412-13. If the plaintiff

does not consent, then the court has a duty to order a new trial. Lebron, 237 Ill. 2d at 234;

Best, 179 Ill. 2d at 413.

¶ 70 In addition, Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994) provides a

reviewing court with the power to grant any relief, including entry of a remittitur. The

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appellate court may modify the trial court's order to reflect the proper amount of damages.

Soto, 313 Ill. App. 3d at 148; Paulson v. County of De Kalb, 268 Ill. App. 3d 78, 83 (1994).

¶ 71 However, a damages award will not be subject to remittitur if it falls within the

flexible range of conclusions which can reasonably be supported by the facts, because the

assessment of damages is primarily an issue of fact for jury determination. Best, 179 Ill. 2d

at 412; Holston, 165 Ill. 2d at 174-75 (our supreme court refused to reduce as excessive a

$7.3 million verdict in a wrongful death and survival case where the jury's verdict "could"

have been based on reasonable inferences from the evidence).

¶ 72 Refusing to disturb a $6.8 million wrongful death award, this court observed:

"Reviewing courts rarely disturb jury awards. For good reason. We are in no better position

to judge the appropriate amount of a verdict than are the 12 people who see and hear the

arguments and the evidence." Barry v. Owens-Corning Fiberglas Corp., 282 Ill. App. 3d

199, 207 (1996) (cited with approval by our supreme court in Best, 179 Ill. 2d at 412).

¶ 73 In the case at bar, defendant forthrightly admits that "the award may be the result of

confusion because there was some testimony from plaintiff that if the decedent had not died

after his return to work, he would have worked several more years until his retirement at age

60." The decedent died at age 57 which meant that, if he had not died, he would have had 3

more years until retirement; and he earned approximately $60,000 per year. Three times

$60,000 is $180,000, which is exactly what the jury awarded.

¶ 74 However, defendant argues that "[i]f the jury meant to award plaintiff for the amount

of wages the decedent would have earned had he lived, it should have done so on the verdict

form line relating to plaintiff's wrongful death claim, not the line addressing the survival

claim."

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¶ 75 In other words, defendant argues that the jury should have put this award on the line

entitled "[l]oss of money, benefits and goods and services," rather than on the line entitled

"[l]oss of earnings experienced by Clarence Roach."

¶ 76 In Barry, we addressed a claim that the jury was given an inaccurate verdict form

allowing it to provide individual awards to each survivor in a wrongful death action, and that

remittitur was required as a result; and we rejected it. Barry, 282 Ill. App. 3d at 205. In

Barry, we concluded that the jury should not have received a verdict form with separate

award lines for each survivor; nonetheless, we declined to reduce the award, stating: "We do

not, of course, know how the jury determined the amounts it placed on the separate lines.

We have no reason to conclude that the use of separate lines somehow inflated the total

wrongful death award." Barry, 282 Ill. App. 3d at 205. Similarly, in the case at bar, we have

no reason to conclude that the jury's allegedly mistaken use of one line as opposed to another

line thereby inflated the total award, and thus we decline to reduce the overall award.

¶ 77 CONCLUSION

¶ 78 For the foregoing reasons, we conclude: (1) that the trial court did not abuse its

discretion by barring defendant from asking plaintiff about the fact that she and her husband

lived in separate residences; (2) that the trial court did not abuse its discretion by permitting

the family physician to offer an opinion about the decedent's cause of death; and (3) that the

trial court did not err by not remitting a portion of the jury's award for "lost earnings" where

the award exceeded the amount stipulated to by the parties as the earnings that the decedent

lost between his accident and his return to work.

¶ 79 Affirmed.