Sharbono v. Hilborn

2014 IL App (3d) 120597

Opinion

2014 IL App (3d) 120597

Opinion filed January 21, 2014 Modified upon denial of rehearing June 11, 2014 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2014

_____________________________________________________________________________

LEE ANN SHARBONO, ) Appeal from the Circuit Court ) of the 13th Judicial Circuit Plaintiff-Appellant, ) La Salle County, Illinois ) v. ) Appeal No. 3-12-0597 ) Circuit No. 06-L-199 ) MARK HILBORN, M.D., ) Honorable ) Joseph P. Hettel, Defendant-Appellee. ) Judge, Presiding.

_____________________________________________________________________________

JUSTICE CARTER delivered the judgment of the court, with opinion. Justices McDade and Schmidt concurred in the judgment and opinion. Justice Schmidt also dissented upon denial of rehearing, with opinion. _____________________________________________________________________________

OPINION

¶1 Plaintiff, Lee Ann Sharbono, filed an action for medical negligence against defendant,

Dr. Mark Hilborn, a board-certified radiologist, alleging that defendant had failed to timely

diagnose her breast cancer. After a trial, the jury found for defendant and against plaintiff.

Plaintiff filed posttrial motions for judgment notwithstanding the verdict, for new trial, and for

rehearing, all of which the trial court denied. Plaintiff appeals, arguing that the trial court erred in: (1) denying her posttrial motion for judgment notwithstanding the verdict or for new trial; (2)

allowing the defense to present a certain PowerPoint presentation as demonstrative evidence

during defendant's testimony at trial; (3) providing the jury with an erroneous instruction on

standard of care; and (4) instructing the jury on mitigation of damages. We agree with plaintiff's

second assertion and find that the error was reversible error. Therefore, we reverse the trial

court's judgment and remand this case for a new trial.

¶2 FACTS

¶3 In August 2006, plaintiff was diagnosed with breast cancer in her left breast, which had

spread to the nearby lymph nodes under her left arm. Plaintiff underwent extensive treatment,

including a modified radical mastectomy of her left breast, removal of several of the lymph

nodes in her left under arm area, and numerous rounds of chemotherapy and radiation. Although

plaintiff's cancer has been in remission now for several years, she still suffers from lymphedema

in her left arm as a result of the cancer surgery and from the constant fear that her cancer will

return.

¶4 The lawsuit in this case arose out of a diagnosis that was made by defendant in November

2004. Plaintiff, who was 39 years old at the time, initially went to see her primary care doctor,

Dr. Daisy Chacko, a family physician, because she was experiencing fatigue, weight gain, and

aches and pains. Dr. Chacko ordered a screening mammogram. Plaintiff had a previous

mammogram done in July 1998 when she was 32 years old and lived in Texas, and, although

plaintiff had what she described as hard ridges under her breasts, nothing abnormal was found in

the mammogram.

¶5 Defendant was the radiologist who interpreted the images from the tests of plaintiff's left

breast that were conducted in October and November 2004 (the November 2004 tests). In the

2 initial screening mammogram, defendant observed an abnormality or a lesion in plaintiff's left

breast that was not present in the 1998 mammogram and recommended that a diagnostic

mammogram be completed. The diagnostic mammogram also showed a lesion in plaintiff's left

breast, so an ultrasound was ordered. Following an evaluation of the ultrasound images,

defendant ultimately concluded that the lesion in plaintiff's left breast was benign. No biopsy

was ordered or recommended by defendant at that time.

¶6 In 2005, plaintiff went back to see Dr. Chacko, complaining of cramping in her left

breast. Dr. Chacko reassured plaintiff that the 2004 mammogram showed that everything was

fine and that there was nothing to worry about.

¶7 In May 2006, plaintiff returned to her family physician's office, complaining of cramping

in her left breast and pain in her shoulder, and requested that another mammogram be done. The

mammogram was not conducted, however, until August 2006, just prior to plaintiff's forty-first

birthday, because of a miscommunication between the hospital and the doctor's office.

¶8 Defendant interpreted the August 2006 mammogram and, after evaluating the images,

recommended that plaintiff obtain another ultrasound of her left breast. The ultrasound indicated

that the lesion in plaintiff's left breast was likely malignant, and a biopsy was ordered. All three

procedures—the mammogram, the ultrasound, and the biopsy—were done on the same day. The

biopsy confirmed that plaintiff had breast cancer.

¶9 In December 2007, plaintiff brought the instant action against defendant and the hospital

for which defendant provided services, alleging, primarily, a negligent failure to timely diagnose

her breast cancer. The hospital was later dismissed from the instant action based upon a

settlement with plaintiff. The complaint against defendant was amended several times over the

following four years, and the case eventually proceeded to a jury trial in November 2011.

3 ¶ 10 The evidence presented at the trial can be briefly summarized as follows. Plaintiff

testified about her symptoms and her history of medical tests and procedures leading up to the

cancer diagnosis, including the 1998 mammogram, the 2004 tests, and the 2006 tests; described

the treatment that she received after the diagnosis of cancer was made; and explained in detail

the lasting lymphedema and other complications that she experienced as a result of having to

undergo the level of cancer treatment that was required. As for the results of the November 2004

tests, plaintiff stated that she was personally told by defendant that "everything was fine" and

that "there was nothing there." In addition, according to plaintiff, she was not provided with any

specific follow-up recommendation by defendant, other than a form letter that she later received

from defendant's office or the hospital, which stated that her results did not show any suspicious

abnormalities and suggested that she start obtaining annual mammograms at the age of 40,

consistent with the recommendations of the American Cancer Society. Plaintiff indicated that

she complied with that recommendation by going to see her doctor to schedule a mammogram

when she was 40 years old. Plaintiff stated further that had she known that there was an

abnormality present in the images of her left breast, she would have gotten a second opinion.

¶ 11 Dr. Michael Foley, a physician who was board-certified in diagnostic radiology, nuclear

medicine, and interventional radiology, provided testimony for plaintiff on the standard of care

as an expert witness. After describing his background and experience to the jury, Dr. Foley

testified about the four evaluative characteristics that were used by radiologists in evaluating

images of breast lesions: margins, shadowing, axis of orientation, and internal echo consistency.

Dr. Foley also described for the jury the Breast Imaging Reporting and Database System (BI-

RADS), a system that was used by radiologists to classify breast images, and discussed the

follow-up treatment that was dictated by each particular classification. During his testimony, Dr.

4 Foley opined that defendant breached the standard of care in several respects as to defendant's

review of the 2004 images and defendant's diagnosis in 2004 that the lesion in plaintiff's left

breast was benign. Dr. Foley discussed at length the areas in which defendant breached the

standard of care and explained to the jury the reasons for his opinion in that regard.

¶ 12 Dr. Gillian Maclaine Newstead, a radiologist who specialized in breast imaging and who

was involved in plaintiff's cancer treatment, also testified as an expert witness for plaintiff. After

describing her education and experience to the jury, Dr. Newstead was asked about a certain

portion of the 2004 ultrasound images of plaintiff's left breast. Dr. Newstead stated that those

images showed abnormal breast tissue, a mass, or a lesion. In Dr. Newstead's opinion, the lesion

needed further evaluation, such as additional imaging or a biopsy, to determine whether it was

benign or cancerous. Dr. Newstead acknowledged in her testimony, however, that she did not

review all of the 2004 ultrasound images; that "abnormal" did not mean "malignant"; and that

she had no opinion as to whether defendant complied with the standard of care, whether plaintiff

had cancer in 2004, or whether a cancer diagnosis in 2004 would have changed plaintiff's

prognosis.

¶ 13 Dr. Mark Kelley, a board-certified surgeon who specialized in surgical oncology and who

was asked to review the records in this case, testified for plaintiff as an expert witness on the

issues of causation and damages. After describing his education and experience for the jury, Dr.

Kelley opined, based upon his review of the record, that: (1) plaintiff's lesion in the November

2004 ultrasound should have been classified as at least a BI-RADS 3 (probably benign), rather

than a BI-RADS 2 (benign); (2) plaintiff had cancer in 2004; (3) plaintiff did not have lymph

node involvement in 2004; (4) if plaintiff had been diagnosed with cancer in 2004, her treatment

would have been less extensive—plaintiff would have received a lumpectomy or partial

5 mastectomy, rather than a mastectomy, plaintiff would not have needed chemotherapy, plaintiff

would still have needed radiation therapy but would have had fewer side effects, plaintiff's

prognosis for survival would have been better, both at the time of diagnosis and at the time of

trial, and plaintiff would not have been likely to develop lymphedema; (5) a modified radical

mastectomy, and not a lumpectomy, was the most appropriate surgical treatment for plaintiff's

cancer in 2006, regardless of whether plaintiff had chemotherapy before or after the surgery; and

(6) plaintiff's prognosis for survival at the point of trial was 90% or greater, since plaintiff had

not had a recurrence of cancer within the first five years. Dr. Kelley explained the reasons for

his opinions to the jury. During his testimony, however, Dr. Kelley acknowledged that it was

possible that if plaintiff had obtained a follow-up mammogram within a year (by November

2005), as she was allegedly told to do by defendant, plaintiff might not have had lymph node

involvement at that time and that the lesion might still have been small enough for plaintiff to

have a lumpectomy, although chemotherapy would have been required under those

circumstances.

¶ 14 Defendant was called to give testimony as an adverse witness in plaintiff's case-in-chief

and, immediately thereafter, to provide testimony in his own case-in-chief.1 After describing his

background and experience to the jury, defendant testified about his evaluation of plaintiff's 2004

images and his diagnosis in 2004 that the lesion in plaintiff's left breast was benign. Defendant

ultimately opined that he did not breach the standard of care and explained to the jury the reasons

for his conclusion in that regard. As part of that explanation, defendant described to the jury the

four evaluative characteristics and how he interpreted those characteristics as to plaintiff's lesion.

Defendant stated that based upon his evaluation of plaintiff's 2004 images using the four

1 Defendant's testimony in his own case-in-chief was presented out of order by agreement of the parties.

6 evaluative characteristics, he classified plaintiff's breast lesion in 2004 as benign or as a BI-

RADS 2. According to defendant, with a BI-RADS 2 classification, there was a 98% chance that

the lesion was benign. Defendant stated further that after the November 2004 procedures, he

told plaintiff that the results were benign and specifically recommended to plaintiff that she

obtain a follow-up mammogram within a year, which was the appropriate level of follow-up

treatment for a BI-RADS 2 diagnosis. Defendant also reported his findings to plaintiff's primary

care doctor by letter and recommended in that letter that plaintiff obtain a follow-up

mammogram within a year. According to defendant, it was the responsibility of plaintiff's

primary care doctor to go over the findings and recommendations with plaintiff. Defendant

acknowledged, however, that a different letter was sent by his office or the hospital to plaintiff

personally and that the letter that was sent to plaintiff did not specifically state that plaintiff was

to obtain another mammogram within a year or indicate that there was still a possibility that the

plaintiff's breast lesion was cancer.

¶ 15 During defendant's direct testimony in his own case-in-chief, the defense sought to use as

demonstrative evidence a PowerPoint presentation that it had prepared. The evidence,

defendant's exhibit No. 18, consisted of several screens of drawings or images that were taken

from a learned treatise, along with copies of plaintiff's own images from the 2004 mammograms

and ultrasound and from the 2006 ultrasound. The name of the particular treatise that was used

was noted on the screen, allegedly for copyright purposes. Above the treatise images were

headings such as "benign appearing lesions," "benign cyst," and "infiltrating ductal carcinoma."2

The exhibit was allegedly being used by the defense to help the jury understand the complicated

2 The capitalization has been removed from the quoted headings for the convenience of the reader.

7 medical testimony that was being given by defendant as to the four characteristics used for

evaluation of breast lesions.

¶ 16 Plaintiff objected to the use of the demonstrative exhibit for various reasons and had

claimed earlier that the defense had not properly disclosed the exhibit as required by the supreme

court rules. The defense asserted that it had e-mailed the presentation to plaintiff at the start of

the trial as required by the trial court in its order regarding demonstrative exhibits. Plaintiff

maintained that he had never received the exhibit and was unaware of the exhibit until it was

being tendered during defendant's testimony in the presence of the jury. The trial court allowed

defendant to utilize exhibit No. 18 over plaintiff's objections and instructed the jury briefly that

during the presentation of the exhibit, the defense was going to be doing two things at once: (1)

trying to teach the jury about the types of breast lesion margins; and (2) transitioning from a

known carcinoma in this case to the case itself. When the testimony resumed, defendant went

through the drawings and images with the jury and explained to the jury what was significant

about each image relative to the four characteristics. During the questioning of defendant,

defense counsel was careful to point out when the images in the exhibit were those from the

treatise, rather than plaintiff's own images, and stressed numerous times in the context of the

questions that he was asking defendant that the treatise images were only being used for

demonstrative purposes.

¶ 17 Dr. Michael Racenstein, a board-certified radiologist and mammographer, testified for

the defense on the standard of care as an expert witness. After describing his qualifications and

experience for the jury, Dr. Racenstein explained the four evaluative characteristics and the BI-

RADS system. Dr. Racenstein opined that defendant did not breach the standard of care in this

case and explained the reasons for his opinion in that regard to the jury. During his testimony,

8 Dr. Racenstein acknowledged, however, that he would have classified plaintiff's lesion in 2004

as a BI-RADS 3 (probably benign), rather than a BI-RADS 2 (benign) lesion, but indicated that

the classification to be assigned on the BI-RADS scale was more of a personal preference, rather

than a strict rule.

¶ 18 Defendant's other expert witness, Dr. Bruce Kaden, who was board-certified in internal

medicine, medical oncology, and hematology, gave testimony on the issue of causation. After

describing his qualifications and experience to the jury, Dr. Kaden testified that at the time of

plaintiff's cancer diagnosis in 2006, a different treatment that plaintiff could have received was to

have chemotherapy first and a lumpectomy second, if necessary, after the size of the lesion had

decreased. With that treatment modality, according to Dr. Kaden, plaintiff could have avoided a

mastectomy. Dr. Kaden testified further that from his review of the case, he believed that

plaintiff had breast cancer and lymph node involvement in 2004 and that her treatment, therefore,

would have been similar, regardless of whether she was diagnosed in 2004 or 2006. Thus,

according to Dr. Kaden, even if plaintiff had been diagnosed with cancer in 2004, she still would

have undergone essentially the same treatment and she still would have developed lymphedema.

Dr. Kaden acknowledged, however, that there was nothing in the records that indicated that

plaintiff had lymph node involvement in 2004 and, that if there was no lymph node involvement

when the cancer was discovered, plaintiff would have had a much smaller risk of developing

lymphedema from the treatment modality that would have been required. Dr. Kaden also

acknowledged that a mastectomy was the treatment modality that was recommended by

plaintiff's treatment providers and that he did not disagree with that treatment recommendation or

believe that it was negligent. As for plaintiff's prognosis, Dr. Kaden opined that plaintiff was

9 completely cured of her cancer, that the cancer would not return, and that the cancer would not

have a negative impact on plaintiff's life expectancy.

¶ 19 After the evidence had concluded and the attorneys had made their closing arguments, the

trial court instructed the jury on the law. One of the instructions that the trial court gave the jury

was Illinois Pattern Jury Instructions, Civil, No. 105.01 (2005) (hereinafter, IPI Civil (2005) No.

105.01) on the standard of care in a professional-negligence case. That instruction had been

submitted by the defense. During the jury instruction conference, which had occurred earlier,

plaintiff's attorney had submitted to the trial court the 2006 version of IPI Civil No. 105.01

(hereinafter, IPI Civil (2006) No. 105.01) and had commented to the court that the instruction

would have to be modified to comply with the Illinois Supreme Court's decision in Studt v.

Sherman Health Systems, 2011 IL 108182, ¶ 46. The trial court rejected plaintiff's proposed

instruction and gave defendant's proposed instruction instead. The trial court also gave the jury

defendant's proposed mitigation of damages instruction (Illinois Pattern Jury Instructions, Civil,

No. 105.08 (2011) (hereinafter, IPI Civil (2011) No. 105.08)) over plaintiff's objection.

¶ 20 At the conclusion of deliberations, the jury returned a general verdict for defendant and

against plaintiff. Plaintiff filed posttrial motions for judgment notwithstanding the verdict, for a

new trial, and for rehearing, all of which the trial court denied. This appeal followed.

¶ 21 ANALYSIS

¶ 22 On appeal, plaintiff raises several issues. Although not necessarily in the order raised by

plaintiff, we will first address plaintiff's argument that the trial court erred in denying her

posttrial motion for judgment notwithstanding the verdict or for a new trial. Plaintiff asserts that

her motion should have been granted as to either one form of relief or the other because of the

10 strength of the evidence in her favor.3 In support of that assertion, plaintiff claims that: (1) both

defendant and his attorney admitted that defendant violated the standard of care, an admission

that was ignored by the jury at the trial and also by the trial court in ruling upon the posttrial

motions; (2) all of the experts in this case agreed that plaintiff had an asymmetrical density in her

left breast, that such a density could be evidence of cancer, and that a biopsy in 2004 would have

conclusively determined whether plaintiff had cancer in her left breast at that time; (3) an

asymmetrical density, such as the one plaintiff had been diagnosed with, should never have been

cleared as noncancerous or benign without a biopsy having been done; and (4) despite

defendant's conclusion to the contrary, the evidence in this case, including defendant's own

testimony, indicated that plaintiff's lesion was "probably benign" or BI-RADS 3, rather than

"benign" or BI-RADS 2, and that the appropriate recommendation, therefore, was for plaintiff to

return for more testing in six months, a recommendation that defendant, by his own admission

and the admission of his attorney, never made. Defendant disagrees with plaintiff's claims and

assertions, or the significance of those assertions, and contends that there was ample evidence to

support the jury's verdict. Thus, defendant argues that the trial court properly denied plaintiff's

posttrial motion for judgment notwithstanding the verdict or for a new trial.

¶ 23 A trial court's ruling on a motion for judgment notwithstanding the verdict is subject to a

de novo standard of review on appeal. Lawlor v. North American Corp. of Illinois, 2012 IL

112530, ¶ 37. A motion for judgment notwithstanding the verdict raises a question of law and

asserts that even when all of the evidence is considered in the light most favorable to the party 3 Plaintiff also asserts that her motion for a new trial should have been granted because of the cumulative

effect of certain procedural and evidentiary errors that were allegedly committed by the trial court during the trial of

this case and pertained to such matters as the admission of evidence and jury instructions. Those errors will be

specifically addressed later in this opinion.

11 opposing the motion, there is a total failure or lack of evidence to prove a necessary element of

the opposing party's case. Id. The burden on the party seeking a judgment notwithstanding the

verdict is a high one as the motion may be granted only under a very limited set of

circumstances—when all of the evidence, viewed in the light most favorable to the party

opposing the motion, so overwhelmingly favors the movant that no contrary verdict based on

that evidence could ever stand. See id.; Maple v. Gustafson, 151 Ill. 2d 445, 453 (1992). In

ruling upon a motion for judgment notwithstanding the verdict, the court does not weigh the

evidence or concern itself with the credibility of the witnesses and must consider the evidence,

and any reasonable inferences therefrom, in the light most favorable to the opposing party.

Maple, 151 Ill. 2d at 453. A court has no right to enter a judgment notwithstanding the verdict if

the evidence demonstrates a substantial factual dispute or if the outcome of the case depends

upon an assessment of credibility or a determination regarding conflicting evidence. Id. at 454.

¶ 24 In ruling upon a motion for new trial, on the other hand, the trial court will weigh the

evidence and will set aside the jury's verdict and order a new trial only if the verdict is against

the manifest weight of the evidence. Lawlor, 2012 IL 112530, ¶ 38. A verdict is against the

manifest weight of the evidence only if it is clear from the record that the jury should have

reached the opposite conclusion or if the jury's findings are unreasonable, arbitrary, and not

based upon any of the evidence presented. Id. On appeal, the trial court's ruling on a motion for

new trial will not be reversed unless the trial court committed an abuse of discretion in making

its ruling. Id. In determining whether an abuse of discretion has occurred, the reviewing court

should consider whether the jury's verdict was supported by the evidence and whether the losing

party was denied a fair trial. Maple, 151 Ill. 2d at 455-56.

12 ¶ 25 Having reviewed the evidence presented at the trial in the present case, we find that the

trial court properly denied plaintiff's posttrial motion for judgment notwithstanding the verdict or

for a new trial. Contrary to plaintiff's claim on appeal, we do not read this record as containing

any admissions by defendant or his attorneys that defendant breached the standard of care in

either his interpretation of plaintiff's 2004 images or in his 2004 diagnosis that the lesion in

plaintiff's left breast was benign. In fact, defendant and one of his expert witnesses both

specifically testified that defendant did not breach the standard of care. In addition, we find no

support in the record for plaintiff's claim that an asymmetrical density should never be ruled

benign without a biopsy having been done. No expert witness testified to that effect and, as with

the previous claim, defendant and one of his expert witnesses specifically testified that a biopsy

was not required in 2004 under the facts of this case and the applicable standard of care. Nor do

we agree with plaintiff's characterization of the testimony regarding the BI-RADS classification

of plaintiff's lesion. The testimony to which plaintiff refers appears to be a description in general

terms as to whether the observed characteristic was an indication of a benign lesion or a

malignant lesion and not a more specific description as to the appropriate BI-RADS

classification. Indeed, it was very clear from defendant's testimony that when it was time to put

all of the diagnostic information together and form a conclusion, defendant concluded, using his

expertise, that plaintiff's lesion was benign or BI-RADS 2. The fact that defendant's expert

witness, Dr. Racenstein, testified that he would have classified plaintiff's lesion in 2004 as a BI-

RADS 3 lesion does not alter our conclusion but, rather, was merely another piece of information

for the jury to consider.

¶ 26 Ultimately, this case involved a classic battle of expert witness testimony. The testimony

of plaintiff's expert witnesses supported plaintiff's side of the case and the testimony of defendant

13 and his expert witnesses supported defendant's side of the case. It was the jury's role to

determine whether each expert witness was credible and how much weight to give to each

expert's testimony. See Maple, 151 Ill. 2d at 452; Walski v. Tiesenga, 72 Ill. 2d 249, 260 (1978).

Under the circumstances present in the instant case, plaintiff's motion for judgment

notwithstanding the verdict or for a new trial was properly denied. See Lawlor, 2012 IL 112530,

¶ 37; Maple, 151 Ill. 2d at 455-56.

¶ 27 Next, we will address plaintiff's claim regarding defendant's use of the PowerPoint

presentation, defendant's exhibit No. 18. Relevant PowerPoint presentations are commonly

allowed in the trial courts, when the proper steps have been taken for their admission. Plaintiff

argues that the trial court committed reversible error by allowing the defense to present exhibit

No. 18 as demonstrative evidence during defendant's testimony at trial. Plaintiff asserts that the

use of the exhibit was improper because: (1) the necessary foundation for the ultrasound images

in the exhibit, which contained images from a learned treatise, was never established (although

there was no objection to the diagrams, plaintiff did object to the use of the ultrasound images

from the text); (2) such an exhibit could only be presented in cross-examination, not in direct

examination, as it was in the present case; (3) the exhibit was not timely disclosed to plaintiff as

required by the supreme court rules on discovery; and (4) the exhibit was not actually being used

by the defense as demonstrative evidence but, rather, was being used by the defense to try to

corroborate defendant's medical opinion that he correctly diagnosed plaintiff's lesion as benign

from plaintiff's imaging tests. Plaintiff asserts further that the erroneous admission of exhibit

No. 18 was highly prejudicial in this case and that it warrants a reversal of the trial court's

judgment on the jury verdict and a remand for new trial. Defendant disagrees with plaintiff's

various assertions and contends that the trial court properly exercised its discretion in ruling that

14 exhibit No. 18 was admissible as demonstrative evidence. In the alternative, defendant contends

that even if the trial court's ruling was incorrect, reversal in this case is not warranted because

plaintiff cannot show that the alleged error caused substantial prejudice that affected the outcome

of the trial. Defendant argues, therefore, that the trial court's judgment should be affirmed.

¶ 28 At trial, plaintiff objected to the treatise's ultrasound images in a sidebar and in a number

of other occasions. Plaintiff objected to the treatise's ultrasound images because there was no

information provided as to who made the diagnosis regarding the images, there was no

information as to what the images indicated, and there was no information or indication as to

what other images may have been shown with the images in question to allow the person who

made the diagnosis to conclude that the images represented cancerous or benign cells. At one

point in the trial, plaintiff renewed his objection to the ultrasound images, arguing that there was

no record as to from where the images came. The trial judge indicated that he would take the

objections as a standing objection, which he overruled. At another point in the trial, the trial

judge noted the objections and basically asked plaintiff's attorney not to object again. A party

who has objected, such as plaintiff in the instant case, is not required to repeat the same objection

each time the evidence in question is offered when the attitude of the trial court as to the

objection is clear. See Spyrka v. County of Cook, 366 Ill. App. 3d 156, 165 (2006). Contrary to

the arguments by defendant in the petition for rehearing, plaintiff did object to the ultrasound

images for a number of different reasons, including no record where the images came from,

which was an objection to the foundation for the evidence. Defendant in the petition for

rehearing made no argument regarding the lack of foundation testimony as to the treatise or as to

the ultrasound images from the treatise. It is also noted that the rules of forfeiture and waiver are

15 limitations on the parties and not on the court (see In re Madison H., 215 Ill. 2d 364, 371

(2005)).

¶ 29 A trial court's ruling on the admissibility of evidence, including demonstrative evidence,

will not be reversed on appeal absent an abuse of discretion. See In re Leona W., 228 Ill. 2d 439,

460 (2008); Schuler v. Mid-Central Cardiology, 313 Ill. App. 3d 326, 337 (2000). The threshold

for finding an abuse of discretion is a high one and will not be overcome unless it can be said

that the trial court's ruling was arbitrary, fanciful, or unreasonable, or that no reasonable person

would have taken the view adopted by the trial court. See Blum v. Koster, 235 Ill. 2d 21, 36

(2009); Leona W., 228 Ill. 2d at 460. If a trial court commits an abuse of discretion in the

admission of evidence, a new trial should be ordered only if the trial court's ruling appears to

have caused substantial prejudice affecting the outcome of the trial. See Leona W., 228 Ill. 2d at

460; Troyan v. Reyes, 367 Ill. App. 3d 729, 732-33 (2006).

¶ 30 Physical objects that are admitted into evidence or used at trial (physical evidence) fall

into one of two categories, real evidence or demonstrative evidence. Smith v. Ohio Oil Co., 10

Ill. App. 2d 67, 74 (1956); see Ill. R. Evid. 401 (eff. Jan. 1, 2011). A physical object that has a

direct part in the incident at issue such that it has probative value in and of itself is considered to

be real evidence. Smith, 10 Ill. App. 2d at 74-76; Michael H. Graham, Graham's Handbook of

Illinois Evidence § 401.2, at 159 (10th ed. 2010). On the other hand, a physical object that does

not have a direct part in the incident at issue and is only being used to help explain or illustrate to

the trier of fact the verbal testimony of a witness or other evidence is considered to be

demonstrative evidence. Id. Demonstrative evidence has no probative value in and of itself and

is merely admitted or used as a visual aid to the trier of fact. Id.; Cisarik v. Palos Community

Hospital, 144 Ill. 2d 339, 341-42 (1991). The great value of demonstrative evidence "lies in the

16 human factor of understanding better what is seen than what is heard." Smith, 10 Ill. App. 2d at

75. The use of demonstrative evidence, therefore, is looked upon favorably by the courts

because it allows the trier of fact to have the best possible understanding of the matters before it.

Id. at 75-76; Schuler, 313 Ill. App. 3d at 337. However, the same human factor that makes

demonstrative evidence valuable—that people learn and understand better what they see, rather

than what they hear—also makes it possible for parties to abuse the use of demonstrative

evidence by giving a dramatic effect or undue or misleading emphasis to some issue, at the

expense of others. Smith, 10 Ill. App. 2d at 76. Thus, in ruling upon the admissibility of

demonstrative evidence, the trial court must be ever watchful to prevent or eliminate that abuse.

See id. at 76-77.

¶ 31 The primary considerations in determining whether demonstrative evidence is admissible

or may be used at trial are relevancy and fairness. See Ill. R. Evid. 401, 402, 403 (eff. Jan. 1,

2011); Schuler, 313 Ill. App. 3d at 337; People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 283-84

(2003); Smith, 10 Ill. App. 2d at 74-77. As for relevancy, for demonstrative evidence to be

admissible, it must actually be used to illustrate or explain the verbal testimony of a witness as to

a matter that is relevant in the case in question. See id; Graham, supra § 401.3, at 160. With

regard to fairness, even if the relevancy test has been satisfied, demonstrative evidence may still

be excluded by the trial court if "its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative evidence." See Ill. R. Evid. 403 (eff.

Jan. 1, 2011); Sherman, 203 Ill. 2d at 284; Cisarik, 144 Ill. 2d at 342.

¶ 32 In addition to the above, before demonstrative evidence may be presented or admitted at

trial, a proper foundation for the use of the evidence must be established. See Sherman, 203 Ill.

17 2d at 283-84; Cisarik, 144 Ill. 2d at 342. If the demonstrative evidence that the proponent seeks

to admit is a filmed or photographed image, such as in the present case, to establish the necessary

foundation, the proponent must have a witness with personal knowledge of the filmed or

photographed object testify that the film or image is an accurate portrayal of what it purports to

show, unless, of course, the parties have made a stipulation to that effect. See id. Absent such a

foundation, the demonstrative evidence may not be presented or admitted at trial. See Sherman,

203 Ill. 2d at 283-85.

¶ 33 Having reviewed the record in the present case, we do not believe that defendant's exhibit

No. 18 was properly classified as demonstrative evidence. The use of the exhibit at trial went

well beyond merely trying to teach or educate the jury about the four evaluative characteristics

that radiologists use to evaluate breast lesions, a matter about which three of the expert witnesses

in this case testified. Rather, it appears from the record that the treatise images and diagrams

contained in exhibit No. 18 were used to help show the basis of defendant's own medical opinion

in this case and to support his diagnosis in 2004 that plaintiff's lesion was benign. Our opinion in

that regard is best illustrated by certain screens of the PowerPoint presentation which contained

main or side headings referencing the word, "benign," such as "benign appearing lesions,"

"benign shadowing," or "benign appearing echoes," and on the same screens showed images

from plaintiff's November 2004 tests. We see no reason why plaintiff's 2004 images were placed

under or to the side of such headings, other than to try to support, and show the basis for,

defendant's medical opinion that the 2004 images were correctly interpreted as benign.

¶ 34 In reaching that conclusion, we must note that even if defense exhibit No. 18 was

properly classified as demonstrative, we would still have to find that the use of the treatise

images from the exhibit was erroneous because defendant failed to present an adequate

18 foundation. See Sherman, 203 Ill. 2d at 283-84; Cisarik, 144 Ill. 2d at 342. At no time in this

case did defendant or any other witness testify from personal knowledge that the sample images

or diagrams contained in exhibit No. 18 from the treatise accurately portrayed the diagnostic

condition (benign or cancerous) that they purported to show. Thus, exhibit No. 18 could not be

properly admitted or used as a demonstrative exhibit under any circumstances. See id.

¶ 35 The use of an exhibit with an ultrasound image from a treatise to show the basis for an

expert's opinion is permissible under Wilson v. Clark, 84 Ill. 2d 186 (1981), and Illinois Rule of

Evidence 703 (eff. Jan. 1, 2011), if a proper foundation has been established and if there has

been proper disclosure.4 In this case, however, it was never established that the learned treatise,

from which the ultrasound images were taken, was a reliable authority as required under Wilson

v. Clark and Illinois Rule of Evidence 703. See Wilson, 84 Ill. 2d at 192-96 (an expert may

testify about facts or data upon which he or she has based his opinion if those facts or data are of

the type reasonably relied upon by experts in the particular field in forming opinions on the

subject, even if those facts or data are not admissible in evidence); Ill. R. Evid. 703 (eff. Jan. 1,

2011); Graham, supra § 703.1, at 677. Because a proper foundation was not established as

provided for in Wilson v. Clark, it was error for the trial court to allow the defense to use exhibit

No. 18 to show the bases of defendant's opinion that plaintiff's lesion was benign and not

cancerous in 2004. See id.

¶ 36 The defendant argues that the plaintiff cannot prevail in her appeal because it cannot be

shown that the evidence complained of affected the outcome of the trial (that the evidence was 4 Although plaintiff asserts that defendant could not properly bring out in direct examination the bases of

defendant's medical opinion, the rulings of our supreme court would seem to indicate to the contrary, albeit in cases

that did not involve the use of a learned treatise. See People v. Anderson, 113 Ill. 2d 1, 9-12 (1986); People v.

Pasch, 152 Ill. 2d 133, 176 (1992).

19 prejudicial). The defendant argues further in the petition for rehearing that the textbook images

serve "to provide a classic easily recognizable example of how the drawn images of a benign or

malignant tumor would appear on an ultrasound." However, without the proper foundation, the

use of the conclusory images in exhibit No. 18 to show the basis of defendant's medical opinion

was highly prejudicial in this case because it went right to the heart of the malpractice claim—

that defendant failed to correctly interpret plaintiff's 2004 breast lesion images as malignant—

and because it was not sufficiently disclosed in a timely manner as required under Illinois

Supreme Court Rule 213 (eff. Jan. 1, 2007) and Rule 214 (eff. Jan. 1, 1996). When our supreme

court adopted Federal Rules of Evidence 703 and 705 (Fed. R. Evid. 703, 705) in Wilson v.

Clark, which are now incorporated into Illinois Rules of Evidence 703 and 705 (eff. Jan. 1,

2011), the supreme court noted that the burden was on the adverse party to elicit in cross-

examination the facts underlying the expert's opinion. Wilson, 84 Ill. 2d at 194. The supreme

court noted further that doing so did not place an undue burden on the cross-examining party in

light of our state's extensive pretrial discovery procedure. Id. Nevertheless, with the burden

upon the adverse party during cross-examination to elicit facts underlying the expert's opinion, it

is a matter of fundamental fairness that the adverse party be given proper and timely disclosure

so that it may have the opportunity to prepare for cross-examination. The importance of that

requirement in cases such as this cannot be overemphasized. See Leonardi v. Loyola University

of Chicago, 168 Ill. 2d 83, 104 (1995) (cross-examination is the principal safeguard against

errant expert testimony); People v. Safford, 392 Ill. App. 3d 212, 224 (2009) (describing cross-

examination as the "truth seeking engine"); 5 John H. Wigmore, Evidence § 1367, at 32-33

(Chadbourn rev. ed. 1974) (stating that cross-examination is "beyond any doubt the greatest legal

20 engine ever invented for the discovery of truth" and recognizing "its efficacy as a fundamental

test of truth").

¶ 37 On a number of occasions in this case, defendant, testifying as an expert, utilized the

diagrams and images from the learned treatise and compared them to the plaintiff's images.

Defendant described the ultrasound images during his testimony in a conclusive manner, such as

a "biopsy-proven simple cyst" (exhibit No. 18-C), a "biopsy-proven one [carcinoma] from

another case" (exhibit No. 18-E)5, a "benign cyst" (exhibits No. 18-L and 18-P), a

"fibroadenoma" (exhibits No. 18-Q and 18-R), and a "biopsy-proven infiltrating ductal

carcinoma" (exhibit No. 18-U). Without timely disclosure, plaintiff was completely deprived of

her ability to effectively cross-examine defendant as to such matters as the extent of his reliance

on the treatise, whether the treatise was truly a reliable authority, whether the specific images

and diagrams in question were reliable, and whether it was reasonable for defendant to rely on

the treatise in this case. It might have been possible that vigorous adversarial cross-examination

in this case may have impeached the importance or reliability of the treatise, its author, or the

specific images and diagrams in question. However, it is not possible to know the extent of

cross-examination because the lack of timely disclosure in this case deprived plaintiff of the

opportunity to prepare for cross-examination and essentially deprived plaintiff of the right to

cross-examine the basis of defendant's medical opinion. Given these circumstances, reversal of

the trial court's judgment and remand for a new trial are required. See Leona W., 228 Ill. 2d at

460; Troyan, 367 Ill. App. 3d at 732-33.

5 The trial court noted as to exhibit 18-E that "we're transitioning from a known carcinoma in this case to

the case itself."

21 ¶ 38 Having determined that reversal of the trial court's judgment and remand for new trial is

warranted, we need only address the two remaining issues regarding jury instructions to the

extent necessary to prevent any possible error from re-occurring on retrial. In the first of those

issues, plaintiff argues that the trial court committed reversible, or, at the very least, prejudicial

error when it refused plaintiff's proposed instruction on the standard of care, which was based

upon IPI Civil (2006) No. 105.01, and which plaintiff intended to modify to comply with the

supreme court's ruling in Studt, after the matter had been argued before the court. The trial court

rejected plaintiff's proposed instruction and gave the defendant's tendered version of IPI Civil

No. 105.01, which was based upon the 2005 version of the instruction. We need not address the

merits of plaintiff's claim on this issue because IPI Civil No. 105.01 has since been modified to

comply with the supreme court's ruling in Studt. See IPI Civil (2012) No. 105.01, Comment;

Perkey v. Portes-Jarol, 2013 IL App (2d) 120470, ¶ 73. We presume that the newest version of

IPI Civil No. 105.01 will be given to the jury upon retrial.

¶ 39 As her second jury instruction issue on appeal, plaintiff argues that the trial court

committed reversible, or, at the very least, prejudicial error when it instructed the jury on

mitigation of damages (IPI Civil (2011) No. 105.08) over plaintiff's objection. Plaintiff asserts

that such an instruction was improper and unwarranted because it was not supported by sufficient

evidence in the record and that she was prejudiced by the improper instruction because it caused

the jury to focus its attention onto plaintiff's own conduct—an issue that was not relevant.

Defendant argues that the trial court's ruling on the mitigation of damages instruction was

supported by the evidence, was proper, and should be upheld. In the alternative, defendant

asserts that even if the trial court's decision to allow the instruction was erroneous, reversible

22 error did not occur because the instruction did not result in serious prejudice to plaintiff since the

jury never reached the issue of damages.

¶ 40 For a particular jury instruction to be warranted, it must be supported by some evidence

in the record. Heastie v. Roberts, 226 Ill. 2d 515, 543 (2007); Schuler, 313 Ill. App. 3d at 336.

The determination as to which issues are raised by the evidence presented and which jury

instructions should be given rests in the sound discretion of the trial court and its decisions in

that regard will not be reversed on appeal absent an abuse of discretion. Id.; Schultz v. Northeast

Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 273 (2002); Studt, 2011 IL 108182, ¶ 13.

The standard for determining whether an abuse of discretion has occurred in the giving of jury

instructions is whether the jury instructions, taken as a whole, were sufficiently clear so as not to

mislead the jury and whether the instructions fairly and correctly stated the law. Dillon v.

Evanston Hospital, 199 Ill. 2d 483, 505 (2002). Thus, reversal based upon the giving of a faulty

jury instruction is warranted only if the faulty instruction clearly misled the jury and resulted in

serious prejudice to the opposing party. Schultz, 201 Ill. 2d at 274.

¶ 41 After reviewing the record in the present case, we find that the mitigation of damages

instruction was supported by the evidence and was, therefore, properly given. See Heastie, 226

Ill. 2d at 543; Schuler, 313 Ill. App. 3d at 336. Although evidence was presented to the contrary,

defendant clearly testified that after the November 2004 tests, he told plaintiff to obtain a follow-

up mammogram within a year. That same recommendation was contained in the letter that

defendant sent to plaintiff's primary care physician after the November 2004 tests were

completed. If the jury found that defendant's testimony in that regard was credible, it could have

reasonably concluded that plaintiff had failed to follow defendant's recommendation and that

plaintiff's failure in that regard may have delayed the discovery of her cancer and her treatment

23 after defendant's alleged medical negligence had already occurred. Because defendant's

mitigation of damages instruction was supported by at least some evidence, the trial court did not

abuse its discretion in giving the instruction over plaintiff's objection. See Heastie, 226 Ill. 2d at

543; Schuler, 313 Ill. App. 3d at 336; Fisher v. Slager, 201 Ill. App. 3d 480, 487 (1990)

(mitigation of damages instruction was supported by some evidence and was appropriately

given).

¶ 42 CONCLUSION

¶ 43 For the foregoing reasons, we reverse the judgment of the circuit court of La Salle

County and remand this case for a new trial.

¶ 44 Reversed and remanded.

¶ 45 SEPARATE OPINION UPON DENIAL OF REHEARING

¶ 46 JUSTICE SCHMIDT, dissenting.

¶ 47 I write separately upon the court's denial of rehearing. I now conclude that rehearing

should be allowed and the trial court should be affirmed.

¶ 48 In finding the trial court abused its discretion in admitting defendant's exhibit No. 18 as a

demonstrative exhibit, the majority states "that even if defense exhibit No. 18 was properly

classified as demonstrative, we would still have to find that the use of the treatise images from

the exhibit was erroneous because defendant failed to present an adequate foundation." Supra

¶ 34. My review of the record reveals that at no point during defendant's testimony regarding

exhibit No. 18 did plaintiff make an objection for lack of foundation. The plaintiff, therefore,

waived that objection, and the trial court did not abuse its discretion in deeming exhibit No. 18

demonstrative. I respectfully dissent.

24 ¶ 49 Plaintiff made a total of five objections, one of which was a standing objection during Dr.

Hilborn's testimony utilizing exhibit No. 18. Plaintiff first objected to the singling out of image

No. 40 of plaintiff's 2004 ultrasound. Plaintiff's counsel characterized singling out that one

image out of a total of 47 images as misleading. The court overruled the objection. Defense

counsel asked Dr. Hilborn another question regarding image No. 40, and plaintiff again objected

on the ground that singling out one image was misleading. The trial court held a brief bench

conference, overruled plaintiff's objection, and made it clear to the jury that image No. 40 was

one of 47 total images from plaintiff's 2004 ultrasound.

¶ 50 Plaintiff next objected to image No. 18-E, which Dr. Hilborn explained was a biopsy-

proven carcinoma from another case/patient, not Lee Ann Sharbono's. Plaintiff's counsel stated,

"I have to object on the basis that that, again, is a single image taken from another case. We

don't have any idea as to what the other images may have shown in that ultrasound and what

other images may have caused a conclusion that this particular image is cancerous." The trial

court overruled that objection.

¶ 51 Later, Dr. Hilborn testified that image No. 18-I was an infiltrating ductal carcinoma also

from another case. Plaintiff's counsel again objected, stating "I'm going to have to object to any

imaging not of Mrs. Sharbono, that we have no way of cross-examining, looking at the other

images to see what they present." The trial court took that objection as a standing objection to

any of the demonstrative films or images that were not plaintiff's and allowed defense counsel to

continue.

¶ 52 Finally, plaintiff's counsel renewed several objections, arguing that it was "inappropriate

to bring in someone else's records and reports and argue those reports as part of the case."

Counsel also stated that the exhibit was hearsay, arguing that it was not a graphic, but rather, a

25 diagnosis and that they could not know who made the diagnosis. Counsel argued, "[t]here was

no record shown that these were Dr. Hilborn's patients or whether they came from other

locations. Therefore we had no opportunity to cross-examine anybody who concluded that these

were either benign, that they were inferior margins, or that they were irregular margins, or that

they were hyperechoic."

¶ 53 None of these constitute a specific foundational objection to exhibit No. 18. "[A]n

objecting party must identify the same basis for his objection in the trial court that he will argue

on appeal." York v. El-Ganzouri, 353 Ill. App. 3d 1, 18 (2004) (citing Gausselin v.

Commonwealth Edison Co., 260 Ill. App. 3d 1068, 1079 (1994) ("when an objection is made,

specific grounds must be stated and other grounds not stated are waived on review")). The

majority finds that plaintiff's objection, including "no record where the images came from," was

an objection to the foundation for the evidence. That is not the case.

¶ 54 Furthermore, when the majority states that rules of forfeiture and waiver are limitations

on the parties and not on the courts (see In re Madison H., 215 Ill. 2d 364, 371 (2005)), it

appears it concedes that plaintiff did not make a foundational objection, but is choosing to

overlook that forfeiture. While some cases say that forfeiture is a limitation on the parties and

not the courts, it does not necessarily confer upon this court the authority to accept or reject

forfeiture arguments willy nilly in order to achieve our own desired results. In O'Casek v.

Children's Home & Aid Society of Illinois, 229 Ill. 2d 421, 437 (2008), our supreme court

affirmed the appellate court's decision rejecting defendant's argument that plaintiff forfeited

consideration of certain issues in her medical malpractice action, stating the oft-cited proposition

that "forfeiture is a limitation on the parties and not the court." Id. However, the court went on

to state:

26 "Our decision to overlook any forfeiture in this case is made

with the recognition that the new issues plaintiff raised were all issues

of law which involved no problem of proofs, and that defendants were

not deprived of an opportunity to present argument on these issues in

the circuit court. [Citation.]" Id. at 439.

¶ 55 The O'Casek court also noted that the law within the Fourth District on the issues

plaintiff raised on reconsideration was confused and the potential existed for conflict among the

appellate districts. Id. at 438. That is not the situation that confronted the majority here.

"[W]here the ground for the objection is of a character that can be remedied such as a lack of

proper foundation, the objecting party must make the objection in order to allow an opportunity

to correct it." Bafia v. City International Trucks, Inc., 258 Ill. App. 3d 4, 8 (1994) (citing

Central Steel & Wire Co. v. Coating Research Corp., 53 Ill. App. 3d 943, 945-46 (1977)).

Plaintiff failed to do so. Even in criminal cases where a forfeited claim may be considered under

plain-error analysis, the path is narrow and the defendant has the burden of proving that the

underlying forfeiture should be excused. See People v. Johnson, 238 Ill. 2d 478, 485 (2010)

(reversing appellate court's decision, holding there was no basis to excuse forfeiture of claim

under plain error). It is not the function of this court to give counsel a "pass" for objections he or

she failed to make during the course of a civil trial, particularly in light of the stringent

requirements in criminal cases and the type of objection argued here. Plaintiff should not be

awarded a new trial for a foundational objection that defendant did not have the opportunity to

correct.

¶ 56 The argument that plaintiff's counsel had no way of cross-examining those images is

similarly not a foundational objection. The images admittedly came from a treatise; cross-

27 examination would have been impossible regardless. In reality, counsel's argument about the

inability to cross-examine the images is just couching the argument that defendant did not

properly disclose exhibit No. 18 in slightly different terms. The majority ignores the fact that

after hearing argument on the subject, the trial court found that defendant had timely disclosed

the exhibit.

¶ 57 As a brief aside, I find that plaintiff did have the opportunity to cross-examine or call into

question those images in exhibit No. 18 that were not Lee Ann Sharbono's. Plaintiff called Dr.

Hilborn first as an adverse witness. Dr. Hilborn then presented his own testimony for his case-

in-chief, as agreed to by the parties. Following Dr. Hilborn's testimony, plaintiff had the

opportunity to rebut that testimony and the images of that exhibit with her own expert witness

testimony. Dr. Foley, a board-certified physician in diagnostic radiology, could have easily

reviewed those images used in exhibit No. 18 and opined whether or not he believed they

showed an infiltrating ductal carcinoma, or benign lesion, et cetera. The same could be said for

Dr. Newstead, also an expert witness for the plaintiff who specialized in breast imaging. Any

question about the reliability of the treatise images could have been dispelled by plaintiff's expert

witnesses.

¶ 58 The images were demonstrative, to show what it is that radiologists look for when

reading films. It is difficult to imagine that at least one of plaintiff's two experts could not have

called defendant out had the images not reflected what defendant said they did. In fact, even in

posttrial matters and on appeal, plaintiff makes no representation that the images displayed

anything other than that represented by defendant. Where is the prejudice? They will

presumably come in at the new trial.

28 ¶ 59 Plaintiff waived any foundational objection to exhibit No. 18 and a new trial is not

warranted. The trial court did not abuse its discretion in finding exhibit No. 18 demonstrative.

In overruling plaintiff's various, nonfoundational objections to the exhibit, the trial court

specifically stated that, "I believe the photos show that they are the four characteristics absence

of or the presence of. I don't believe it was confusing to the jury and I think we made the

appropriate instructions, or the jury was appropriately instructed *** about teaching what these

characteristics were." Discretion lies with the circuit court in determining whether a party may

present demonstrative evidence to clarify an expert's testimony. Schuler v. Mid-Central

Cardiology, 313 Ill. App. 3d 326, 337 (2000). I do not believe that it can be said that no

reasonable person would take the view adopted by the trial court in this instance.

¶ 60 The exhibit effectively allowed Dr. Hilborn to explain to the jury what characteristics he

looks for when reviewing mammogram films and ultrasounds, a task that would be considerably

more difficult without the assistance of those images. See Schuler, 313 Ill. App 3d at 337-38

(finding the trial court did not abuse its discretion in permitting defendant's use of a risk

stratification chart as demonstrative evidence, where both plaintiff's and defendant's expert

witnesses acknowledged that such risk stratification protocols were commonly accepted in the

medical community and that the chart was simply a visual aid used to explain the risk

stratification process, a concept the witnesses would testify about with or without the exhibit).

The fact that plaintiff's images were shown as a comparison does not serve to undermine the

demonstrative nature of the exhibit, particularly when plaintiff's experts had the opportunity to

view those images and rebut Dr. Hilborn's testimony. Furthermore, plaintiff does not even allege

on appeal that the images were misleading in the respect that they did not show what defendant

29 said they did. Plaintiff was simply not unfairly prejudiced by the demonstrative evidence. There

is no reason to suspect a retrial will yield a difference result.