SIXTH DIVISION December 1, 2006
No. 1-04-1079
MATTHEW SHAHEEN, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) ) ADVANTAGE MOVING AND STORAGE, INC., and ) WILLIAM T. URBAN, ) Honorable ) Martin S. Agran, Defendants-Appellants. ) Judge Presiding
JUSTICE McNULTY delivered the opinion of the court:
A moving van struck Matthew Shaheen as he crossed a street.
Shaheen sued the van's owner and its driver. A jury found all
parties negligent and assessed damages. The trial court entered
judgment in favor of Shaheen on the verdict, with the award
reduced due to the finding of contributory negligence.
On appeal defendants argue that the trial court should have
entered judgment in their favor notwithstanding the verdict or
the court should have reduced the damages awarded. Defendants
also argue that the court committed several errors warranting a
new trial. We publish this as an opinion to discuss defendants'
argument that the court should not have permitted plaintiff to
rehabilitate his doctor with evidence that the attorney for
defendants had consulted with that doctor in other cases. Other
issues include the propriety of jury instructions and the
sanctions imposed for a discovery violation, the admissibility of
expert testimony projecting plaintiff's potential earnings, and 1-04-1079
improper remarks in closing argument. We find no grounds for
disturbing the judgment.
BACKGROUND
Around 8 p.m. on October 27, 2000, Shaheen and his friend
Eric Johnston walked north on the west side of Wabash Avenue in
Chicago. William Urban, working for Advantage Moving & Storage,
drove west on Huron Street in the lane closer to the north side
of the street, coming to a stop sign at Wabash Avenue. The van
hit Shaheen near the intersection. A moment before impact
Johnston yelled to Shaheen and Urban's passenger yelled to Urban,
but both warnings came too late. The impact fractured bones in
Shaheen's leg, pelvis and back.
Shaheen returned to work about seven weeks after the
accident. He reduced his schedule to six hours a day, on his
doctor's advice. In 1999, the year before the accident, Shaheen
earned $56,682 from his work as an attorney. For 2001 Shaheen
reported earnings, mostly from the same employer, of just under
$60,000.
In December 2000 Shaheen sued Advantage and Urban for
negligence. Defendants took the deposition of Dr. Samuel Chmell,
one of plaintiff's treating physicians, in November 2002. At
that point Dr. Chmell had not seen plaintiff since September
2001. Dr. Chmell testified that he had no opinion "as to whether
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[plaintiff] will require or not require surgery for what is his
now healed *** fracture" of the hip joint. Dr. Chmell added that
he had recommended further tests, including a CAT scan of the
pelvis and back, but as of the deposition, he had no additional
data, and no indication plaintiff had undergone the recommended
tests.
According to Dr. Chmell, the hip fracture increased the risk
plaintiff would develop arthritis at that joint. Dr. Chmell
agreed that "any other opinions regarding arthritis would be
speculative unless [he] had more information." He testified that
the accident permanently injured plaintiff's back. In Dr.
Chmell's opinion plaintiff would continue to experience pain and
stiffness in his back, and he would continue to have difficulty
walking. The back problems would require regular medical
treatment.
On July 17, 2003, plaintiff served on defendants amended
answers to defendants' interrogatories concerning the testimony
plaintiff expected to elicit at trial. Plaintiff said that Dr.
Chmell would testify concerning the permanence of the injuries
and the need for future medical care, including the possible need
for surgery. Plaintiff added that Dr. Chmell's testimony would
accord with his deposition, along with "his medical records, the
medical records of other medical providers, radiological films
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and his report dated June 28, 2003." Defendants obtained Dr.
Chmell's complete medical reports a few weeks later. The records
showed that Dr. Chmell examined plaintiff in May 2003.
Defendants sought no further discovery concerning the May
examination.
The parties took Dr. Chmell's evidence deposition, for use
at trial, on September 16, 2003, two months after plaintiff
amended his answers to interrogatories. Dr. Chmell described his
examinations of plaintiff just as he described them in the
discovery deposition. Plaintiff's attorney showed Dr. Chmell a
CAT scan of plaintiff's pelvis. Defendants objected that
plaintiff failed to disclose any opinions related to the CAT
scan. Dr. Chmell interpreted the CAT scan.
Defendants objected to all testimony related to the May
examination. Dr. Chmell testified that in that examination he
found plaintiff still suffering from low back pain and leg pain,
especially when he attempted repair work on the apartment
buildings he managed. In Dr. Chmell's opinion the accident in
2000 caused the continuing difficulties. Dr. Chmell testified
about the permanent injuries and the likely degeneration of
plaintiff's back. He believed that the hip might degenerate so
far as to need surgery. Defendants objected that the testimony
concerning hip surgery conflicted with testimony from the
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discovery deposition.
On cross-examination Dr. Chmell admitted that he earned
about 10% of his income from evaluating patients in preparation
for trials. He intended to bill plaintiff's attorneys for his
time spent on the case.
Plaintiff's attorneys on redirect asked Dr. Chmell further
questions about his forensic work:
"Q. *** [H]ave you had occasion in the past to be
retained by the defense firm, by the attorneys within
the defense firm in this case?
A. Yes.
* * *
Q. Is the amount that you charge, Dr. Chmell, the
$500 an hour the same amount that you charged the
defense firm in this case when you gave your discovery
deposition?
A. Yes."
Before trial defendants sought rulings on the objections
raised at the evidence deposition. The trial court struck the
testimony related to the CAT scan and all allusions to the
possibility of hip surgery. In regard to the testimony about the
May examination, the court asked defense counsel:
"THE COURT: *** And then you subpoenaed all the
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[medical] records. When did you receive those records?
MR. HAYNES [Defense counsel]: Probably within ***
two to three weeks after we did it.
THE COURT: So what did you do between that time
and today's date *** -- did you go into court and ask
to either have it barred or supplement the record?
MR. HAYNES: We didn't ***. I mean, how many
times do we have to keep doing this?"
The court considered defendants' diligence and surprise,
plaintiff's good faith, and the prejudicial effect of the
testimony. The court said:
"[T]rial was set for September 16, so it's not like
this was filed and you got a couple of days till
trial's going.
*** I mean, you sat on it ***. *** [Y]ou could
have at that time gone in and asked that this testimony
be barred and *** that the discovery date be enforced
or that would have given you sufficient time in order
to *** take supplementary discovery ***.
*** [I]t's not really a surprise because it's two
months ago that this occurred ***. *** [T]here was
plenty of time to act ***.
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*** [Y]ou had an opportunity to address this long
before today's date, and *** going over the factors, I
don't think they weigh in your favor. As such, this
particular motion will be denied."
The court also overruled the objection to Dr. Chmell's
testimony that he worked for defendants' attorneys in other
cases.
At trial plaintiff's psychiatrist testified that plaintiff
suffered from post-concussive syndrome. The psychiatrist
explained that in the accident plaintiff suffered a traumatic
brain injury that caused him ongoing anxiety, headaches, nausea
and fatigue. Plaintiff had difficulty with memory and
concentration, and he did not fall asleep easily. The
psychiatrist treated plaintiff's symptoms with several
medications. In the psychiatrist's opinion the post-concussive
syndrome would continue to affect plaintiff permanently.
Plaintiff's psychologist confirmed that plaintiff had
suffered a mild traumatic brain injury that caused "reduced
mental sharpness, less ability to focus attention and sustain
attention, reduced ability to keep track of many things at one
time, [and] reduced speed of problem solving." Plaintiff also
stopped bicycling and canoeing due to the pain.
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Several of plaintiff's friends testified about changes in
his personality following the accident. He became insecure,
inflexible and anxious, getting flustered easily. He changed
from an engaging, outgoing person to a reticent, quiet person who
no longer attempted much intelligent conversation.
An accountant who wrote articles on estimating work life
expectancy testified that before the accident plaintiff had a
work life expectancy of 27.7 years. The current disabilities
reduced plaintiff's work life expectancy to 24.2 years.
Dr. Anthony Gamboa, a vocational counselor, testified that
he assessed plaintiff's work disability. Dr. Gamboa relied on
plaintiff's age, education, work history and earnings history,
along with his interview of plaintiff, to reach the conclusion
that plaintiff suffered from a nonsevere work disability that
reduced his organizational skills, memory, and problem-solving
ability, while leaving plaintiff more fatigued. Using government
data for the broad spectrum of nonsevere work disabilities, he
estimated that the disability reduced plaintiff's earning
capacity such that if he had no disability he could earn 31% more
than his current income. Dr. Gamboa used the 31% figure and
plaintiff's projected work life to estimate plaintiff's lifetime
loss from diminished earning capacity as $885,300. The
statistics Dr. Gamboa used did not distinguish earnings reduction
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by occupation, so he did not use any data peculiar to plaintiff's
education and occupation as an attorney.
Plaintiff and Johnston testified that plaintiff crossed
Huron at Wabash in the crosswalk. Nothing blocked Urban's view
of plaintiff. Neither plaintiff nor Johnston heard a horn sound.
The van knocked plaintiff 15 feet through the air. Plaintiff
tried to get up but found he could not move. Before the accident
plaintiff enjoyed bicycling, walking and other outdoor
activities.
Urban testified that when his passenger yelled, he saw
plaintiff walking in the street between parked cars. After the
impact Urban watched plaintiff get up and walk 15 feet back
toward the intersection before lying down in the street.
An expert testified for the defense that plaintiff did not
suffer from any permanent disability. Another expert testified
that no physical condition explained the pain plaintiff claimed
he continued to feel. The expert found no connection between the
accident and plaintiff's present complaints.
In closing plaintiff attacked Urban's testimony that he saw
plaintiff step into the street midblock, coming from between
parked cars and crossing another lane of traffic before the van
hit him.
"I think *** he never saw him. I have no doubt in my
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mind that if he had seen him, that Mr. Urban would have
done whatever he could to avoid doing this."
The court sustained defendants' objection to what the attorney
believed Urban would do. The court sustained another objection
to plaintiff's comment that "the same kind of defense was used"
in a different case.
One treating physician did not testify. Defendants argued
that plaintiff presented Dr. Chmell rather than the other
physician because Dr. Chmell's opinions better supported
plaintiff's case. Plaintiff answered in rebuttal:
"[I]f [the other treating physician] had something
different to say, with all of the resources that are
being brought in this case, don't you think they would
have brought him in to say it[?]"
Again, the court sustained defendants' prompt objection.
Plaintiff's counsel later discussed the defense strategy:
"Now, [defense counsel] keeps talking about Mr. Urban.
There's two defendants in this case, his employer.
[Defense counsel] told you that [Urban] was working at
the time. So why does he keep doing that? *** He's
trying to make you have undue sympathy. ***
*** Why isn't he talking about -- we don't even
know -- it's different people all the time who [sit]
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here on behalf of Advantage."
The court sustained defendants' prompt objection and instructed
the jury to disregard the comment.
Plaintiff's counsel discussed the possibility jurors might
not sympathize with his client:
"[Y]ou might think, *** [']I don't like the things that
Matt likes.['] *** You might think[, ']I hate
fraternities.['] Well, you have to walk that journey
with Matt if you're going to do justice in this case."
Again, the court sustained a prompt objection and instructed the
jury to disregard the remark.
Finally, plaintiff's counsel commented, "We did not choose
in this case to hire expert witnesses to come in here and put ***
the facts in the light most favorable to Matt." The court
overruled defendants' objection. Plaintiff's counsel then
clarified that he preferred to use only treating physicians for
testimony about plaintiff's injuries.
Over defendants' objection the court instructed the jury:
"Every driver of a vehicle shall exercise due care to
avoid colliding with any pedestrian upon any roadway
and shall give warning by sounding horn when necessary.
The plaintiff claims *** that the defendants were
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negligent in [that they] *** failed to sound proper
warning to prevent an accident ***.
If you decide for the plaintiff on the question of
liability, you must then fix the amount of money which
will reasonably and fairly compensate him for *** loss
of a normal life experienced and reasonably certain to
be experienced in the future as a result of the
injuries."
The jury found both plaintiff and Urban negligent, with
plaintiff contributing 20% of the negligence that caused the
accident. The jury found that the accident caused plaintiff
$955,000 in total damages, which the jury itemized as $140,000
for pain and suffering, $500,000 for loss of a normal life,
$200,000 for diminished earning capacity, and $115,000 for past
and future medical expenses.
In a posttrial motion defendants sought judgment
notwithstanding the verdict, a new trial, or a reduction in the
damages assessed. The court denied most relief but reduced the
jury's assessment of medical expenses from $115,000 to
$46,281.75. The court entered judgment on the verdict, assessing
total damages of $886,281.75, and awarding plaintiff a judgment
for $709,025.40 (=.8 x $886,281.75). Defendants now appeal.
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ANALYSIS
Defendants argue first that the court should have granted
them a judgment notwithstanding the verdict. That is, defendants
argue that the evidence, viewed in the light most favorable to
the verdict, so overwhelmingly favors defendants that no contrary
verdict could ever stand. Pedrick v. Peoria & Eastern R.R. Co.,
37 Ill. 2d 494, 510 (1967).
The parties agree that plaintiff walked across the parking
lane on the south side of Huron and the lane next to it before
the van struck him in the lane of travel nearer the north side of
the street. Both Urban's passenger and Johnston saw the peril
and tried to shout warnings before plaintiff and Urban saw each
other. Plaintiff presented evidence that he crossed within the
crosswalk, while Urban testified that he saw plaintiff walking
between parked cars. The jury reasonably concluded that both
plaintiff and Urban acted negligently, as each should have seen
the other in time to avoid the collision. The jury found Urban,
the driver who apparently accelerated without looking in front of
the moving van, four times as negligent as plaintiff, the
pedestrian who remained in the crosswalk. The evidence as a
whole does not favor defendants. We see no basis for disturbing
the jury's assessment of the negligence of the parties. See
Costello v. Chicago Transit Authority, 40 Ill. App. 3d 461
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(1976).
Defendants contend that the trial court did not impose a
sufficiently severe sanction on plaintiffs for inadequate
disclosure of Dr. Chmell's opinions. We defer to the trial
court's judgment concerning sanctions for discovery violations.
We will reverse the court's imposition of sanctions only if the
court abused its discretion. Coleman v. Abella, 322 Ill. App. 3d
792, 799 (2001).
The court excluded Dr. Chmell's testimony from the evidence
deposition interpreting the CAT scan and alluding to the
possibility that plaintiff might need hip surgery. However, the
court permitted some other testimony about the examination Dr.
Chmell performed in May 2003, some months after the discovery
deposition. Defendants learned of the May examination about six
weeks before the evidence deposition and more than two months
before trial. Defendants did not attempt to learn further about
the conclusions Dr. Chmell reached in the most recent
examination, either by supplemental interrogatories or by
deposition.
To determine the appropriate sanction for a discovery
violation, the court should consider:
"(1) surprise to the adverse party; (2) the prejudicial
effect of the witness' testimony; (3) the nature of the
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witness' testimony; (4) the diligence of the adverse
party; (5) whether the objection to the testimony was
timely; and (6) the good faith of the party calling the
witness." Coleman, 322 Ill. App. 3d at 799.
Here, the court carefully weighed the appropriate factors
and allowed only some of the opinions updated by the most recent
examination. We agree with the court's assessment of defendants'
diligence and surprise. We cannot say that the trial court
abused its discretion in balancing the factors and fashioning a
lesser sanction than defendants sought for discovery errors. See
McGovern v. Kaneshiro, 337 Ill. App. 3d 24, 37-38 (2003). We
note that the prognosis opinions Dr. Chmell gave at the discovery
deposition may not have been admissible at trial, because he
based those opinions on examinations performed some years before
trial. See Marchese v. Vincelette, 261 Ill. App. 3d 520, 525
(1994).
The trial court also permitted Dr. Chmell to testify that
defendants' attorneys had hired him to work for them as an expert
in another case. We review the court's decision on the propriety
of redirect examination for abuse of discretion. See People v.
Johnston, 267 Ill. App. 3d 526, 538 (1994).
Courts generally permit a party to show possible bias with
evidence that the proponents of an expert paid for his testimony.
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Niewold v. Fry, 306 Ill. App. 3d 735, 743 (1999). Similarly,
courts generally admit evidence that an expert earns a
significant income from testifying, that he usually testifies for
one side (Trower v. Jones, 121 Ill. 2d 211, 217-19 (1988)), and
that he testified for the same attorney in other cases (Sears v.
Rutishauser, 102 Ill. 2d 402, 409 (1984)). When one party
attacks the credibility of an expert with such evidence of bias,
the party presenting the witness has the right to rehabilitate
the expert with evidence showing that the expert exercises
independent judgment. Lagoni v. Holiday Inn Midway, 262 Ill.
App. 3d 1020, 1031. Evidence that the opposing party's attorney
has also used the witness as an expert tends to bolster the
credibility of the expert. See Chapman v. Hubbard Woods Motors,
Inc., 351 Ill. App. 3d 99, 111 (2004) (evidence opposing party
originally hired expert has probative value); Fenlon v. Thayer,
127 N.H. 702, 708-09, 506 A.2d 319, 323 (1986) ("the fact that a
party's adversary first contacted the expert is material to the
weight and credibility of that expert's testimony, and we think
the jury should have the opportunity to consider this fact").
Here, defendants attacked Dr. Chmell's credibility with
evidence concerning his fee and the portion of his income earned
from expert testimony. We find that the trial court did not
abuse its discretion by permitting plaintiff to respond with
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evidence that defendants' attorney also hired Dr. Chmell to
testify in other cases.
Next, defendants contend that the trial court abused its
discretion by permitting Dr. Gamboa to testify to his estimate of
the value of plaintiff's lost earning capacity. Dr. Gamboa, a
vocational counselor, testified that he based his estimate of
diminished earning capacity on an interview with plaintiff and
data concerning plaintiff's earnings, age and education, in
conjunction with government statistics. Defendants do not
dispute Dr. Gamboa's qualifications and they do not disagree with
his use of all the data he used to support his estimate of
diminished earning capacity.
Defendants argue that Dr. Gamboa should have given more
weight to the fact that plaintiff earned more in 2001, the year
following the accident, than he earned in the last year before
the accident. Dr. Gamboa relied on government statistics that
did not distinguish differences in the extent of partial
disabilities and the effect of the disabilities in different
occupations. The data only distinguished nonsevere work
disabilities from severe work disabilities.
Dr. Gamboa provided an adequate foundation for his opinion
with his credentials and his use of data typically used by
persons in his profession. See Becht v. Palac, 317 Ill. App. 3d
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1026, 1034 (2000). Defendants' arguments go to the weight and
credibility of Dr. Gamboa's testimony, not to its admissibility.
See Snelson v. Kamm, 204 Ill. 2d 1, 26-27 (2003); LaSalle
National Bank v. Malik, 302 Ill. App. 3d 236, 243 (1999). We
cannot say that the trial court abused its discretion by
admitting Dr. Gamboa's testimony into evidence.
We note that defendants used the gain in actual earnings
effectively to impeach Dr. Gamboa. The jury found that plaintiff
showed that he would lose $200,000 in earnings, and that amount
is less than one-fourth of Dr. Gamboa's estimate of lost
earnings. An accountant estimated that plaintiff's disability
would reduce his work life expectancy from 27.7 years to 24.2
years. At plaintiff's 2001 earnings of nearly $60,000 per year,
3.5 years of diminished work life will cost plaintiff about
$200,000 in lost earnings. Even if the jury completely rejected
Dr. Gamboa's testimony, the evidence supports the assessment of
$200,000 in lost earnings. See Stringham v. United Parcel
Service, Inc., 181 Ill. App. 3d 312, 317 (1989) (uses change in
expected work life to estimate lost earnings).
Defendants next contend that plaintiff's improper comments
in closing argument deprived defendants of a fair trial. For all
but one of the remarks, the trial court sustained defendants'
objections and gave defendants all of the relief they requested
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by instructing the jurors to disregard the improper comments. We
usually regard this relief as sufficient to cure prejudice from
improper remarks. Magna Trust Co. v. Illinois Central R.R. Co.,
313 Ill. App. 3d 375, 395 (2000).
Here, plaintiff's counsel injected his personal beliefs into
the argument when he said he believed that Urban would have tried
to avoid plaintiff if he had seen him between parked cars, two
lanes away from the point of contact. The irrelevant remark that
"the same kind of defense was used" in another case had no
support in the evidence. To protect his client against possible
prejudice against fraternity members counsel told the jurors they
needed to "walk that journey with Matt" for purposes of this
case. Counsel commented on defendant's failure to call a
treating physician, in response to defendants' argument that
plaintiff chose to call only the treating physicians who best
supported plaintiff's case. And counsel remarked on the number
of different representatives who had appeared at trial on behalf
of Advantage. We find that none of the arguments so severely
prejudiced defendants that the trial court could not effectively
ameliorate the damage with the simple instruction to disregard
the improper comment.
The court permitted plaintiff's counsel to contrast his use
of treating physicians, including Dr. Chmell and plaintiff's
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psychiatrist, with defendants' use of nontreating experts. The
comment emphasized the separate payment solely for the testimony
of defendants' experts as part of showing a possibility of bias.
The comment appears to explore permissible impeachment of
experts. See Sears, 102 Ill. 2d at 408; Niewold, 306 Ill. App.
3d at 743. The trial court did not abuse its discretion by
permitting the comment.
The trial court can best evaluate the effect of improper
comments and the efficacy of instructions to disregard. Magna
Trust, 313 Ill. App. 3d at 395. Nothing in the record shows that
the trial court here assessed incorrectly the prejudicial effect
of the closing argument. Considering the cumulative impact of
the improper comments, we still find no grounds for disturbing
the trial court's judgment.
Finally, defendants object that no evidence warranted two of
the instructions the trial court gave. The trial court has
discretion to decide which instructions to give the jury, and we
will not reverse the court's judgment unless it abused its
discretion and seriously prejudiced a party's right to a fair
trial. Frank v. Edward Hines Lumber Co., 327 Ill. App. 3d 113,
119 (2001). The court should instruct the jury on a party's
theory, if any evidence supports the theory. McShane v. Chicago
Investment Corp., 235 Ill. App. 3d 860, 876 (1992).
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Here, plaintiff and Johnston testified that they heard no
horn before impact. An ordinance requires all drivers to sound
their horns to warn pedestrians of possible collisions. Johnston
and Urban's passenger each saw the approaching collision and
shouted warnings before impact. The evidence can support the
conclusion that if Urban had looked ahead as he entered the
intersection, he would have seen plaintiff in time to honk a
warning, possibly avoiding the collision. The trial court did
not abuse its discretion by instructing the jury on plaintiff's
theory that Urban negligently failed to sound his horn.
Plaintiff's friends and his psychologist testified that
plaintiff changed a great deal following the accident. He became
reticent, anxious and insecure, and he appeared to derive less
enjoyment from everyday social interactions. He also engaged in
much less physical activity after the accident. The trial court
did not abuse its discretion by instructing the jury on loss of a
normal life as an element of plaintiff's damages. See Smith v.
City of Evanston, 260 Ill. App. 3d 925, 938 (1994). Furthermore,
we cannot say that the size of the verdict shocks the conscience
or that it shows that the jury must have acted out of prejudice
or passion. See Richardson v. Chapman, 175 Ill. 2d 98, 113
(1997).
Defendants tried to show the bias of plaintiff's physician
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with evidence that the doctor earns a significant portion of his
income from expert testimony and he charges a substantial fee for
his testimony in court. We hold that the trial court did not
abuse its discretion by permitting plaintiff to rehabilitate his
witness with evidence that, in other cases, the witness also
consulted with the law firm that represented defendants in this
case. The evidence amply supports the finding that defendants
acted negligently and contributed to the causation of the damages
plaintiff suffered. The court did not abuse its discretion by
limiting the sanction against plaintiff to elimination of only a
part of his physician's testimony, especially because defendants
did not act with diligence when they received medical records
that disclosed a recent examination that updated the physician's
opinions. The court did not abuse its discretion by permitting a
vocational rehabilitation expert testify to his estimate of
plaintiff's lost earning capacity, by sustaining most of
defendants' objections to plaintiff's closing argument, or by
instructing the jury on the duty to sound a horn and plaintiff's
loss of a normal life as an aspect of damages. Accordingly, we
affirm the judgment of the trial court.
Affirmed.
FITZGERALD SMITH, P.J., and JOSEPH GORDON, J., concur.
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