Chapman v. Hubbard Woods Motors, Inc.

Case Date: 06/09/2004
Court: 1st District Appellate
Docket No: 1-02-0796 Rel

THIRD DIVISION
Date Filed: June 9, 2004


No. 1-02-0796

 
AUDREY CHAPMAN and CLIFFORD C. CHAPMAN,

                    Plaintiffs-Appellants,

                    v.

HUBBARD WOODS MOTORS, INC., an Illinois
Corporation,

                    Defendant

(S and G Design, Inc., an Illinois
Corporation, doing business as Ruthie's
Glencoe Flowers, Inc. and Oscar O.
Guzman,

                    Defendants-Appellees).

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Appeal from the
Circuit Court of
Cook County

No. 96 L 3585








Honorable
James S. Quinlan, Jr.,
Judge Presiding.
 


JUSTICE HALL delivered the opinion of the court:

The plaintiffs, Audrey Chapman and Clifford C. Chapman,filed a lawsuit against the defendants, S & G Design Corporationand Oscar O. Guzman, seeking damages for injuries suffered byAudrey that were allegedly caused by a truck owned by S & G. Following a jury trial, the plaintiffs were awarded $3,048 formedical expenses.(1) The jury made no award for pain andsuffering. The trial court denied the plaintiffs' motion for anew trial, and the plaintiffs appeal.

On appeal, the plaintiffs raise the following issues:whether the trial judge's erroneous evidentiary rulings deniedthem a fair trial and whether the jury's verdict was against themanifest weight of the evidence.

At the outset, we note that, prior to the commencement ofthe trial in this case, the defendants admitted negligence. However, the defendants did not admit that any act or omission ontheir part was the proximate cause of Audrey's injuries.

The evidence pertinent to the issues raised on appeal issummarized below.

Audrey testified as follows.

On December 16, 1994, Audrey was at Hubbard Woods Motorswaiting to have the battery in her car changed. She was seatedon a bench located against a window. There were some tiresstacked against the window on the outside of the building. Whileseated, Audrey was knocked off the bench, which struck her back.She ended up on the floor. Turning to see what had knocked heroff the bench, she observed a large shard of glass separatingfrom the window. Audrey also observed tires in the showroom andthat a corner of a van was through the glass. The bench she wassitting on was jutting out into the middle of the room.

When the paramedics arrived, Audrey told them that her backand neck hurt. The paramedics put a collar on her neck and tookher to Highland Park Hospital.

At the emergency room, Audrey was examined and X rays weretaken. The emergency room doctor prescribed a muscle relaxant,and she was discharged from the hospital that evening. The nextday, she had a large bruise on her arm.

On December 18, 1994, because the pain had increased, Audreycontacted her regular physician, Dr. Weiner, who prescribed painmedication. Approximately a week later, Audrey again contactedDr. Weiner, telling him that the pain was not going away. Dr.Weiner sent Audrey for physical therapy.

After five or six weeks, the physical therapy was notworking. On the recommendation of a friend, Audrey saw Dr.Mardjetko, an orthopedic surgeon,. After Dr. Mardjetko examinedher, he referred her to Dr. Reddy, who gave her an injection inher left hip. However, the injection increased the pain. Dr.Reddy referred her back to Dr. Mardjetko, who sent her forphysical therapy. However, the physical therapy made her feelworse.

On the recommendation of her attorney, Audrey was examinedby Dr. Young. At that time, she was experiencing pain in herneck, shoulders and back. Dr. Young recommended different typesof corsets and prescribed exercises and medication. Dr. Youngalso gave her acupuncture treatments in her back and shoulders,which gave her instant, albeit not lasting, relief.

In late October or early November 1995, Audrey went to theemergency room complaining of stomach problems. Dr. Weinerreferred her to Dr. Ingalls, who prescribed medications for herstomach and performed a procedure at the hospital on her to tryto determine the source of the problem.

In November 1995, on the recommendation of a friend, Audreysaw Dr. Reynolds, a chiropractor. She complained of pain in herstomach, shoulders, and back, particularly the lower back. Dr.Reynolds treated her until 1998.

After reading an article about holistic medicine, Audreywent to see Dr. Filice, a holistic doctor. Dr. Filice gave hernatural vitamins and supplements. He also gave her aprescription for cytomel, a thyroid drug. Audrey denied that shewas having any problem with her thyroid at that time.

In 1997, Dr. Young referred Audrey to Dr. Rothke, apsychologist. After the initial visit, she did not see Dr.Rothke for a year. On her second visit, Dr. Rothke administeredsome written tests and referred Audrey to the RehabilitationInstitute of Chicago (RIC).

In January 1998, Audrey attended RIC for pain therapy forfour weeks. At RIC, she was treated by Dr. Harden and Dr. Cole,who was a psychologist. Audrey learned to work around her painand to keep her anxiety level down.

After her discharge from RIC, Audrey was treated by Drs.Young, Weiner, and Rothke.

In 2000, after being rechecked by Dr. Harden, she was seenby Dr. Pliskin, who gave her written tests and talked to her. She last saw Drs. Young and Rothke in January 2001.

Audrey acknowledged that, prior to the 1994 accident, shehad been treated by Dr. Rana, a chiropractor, after she injuredher shoulder bowling. She saw Dr. Rana between 1980 and 1990. Since her pain continued, Dr. Rana recommended that she see amedical doctor. Although her pain was almost gone at that point,she saw Dr. Spencer in 1990. Dr. Spenser recommended rest.

Prior to 1994, Audrey suffered from headaches and sinusproblems. After she was treated for allergies, her symptoms weregreatly alleviated.

In 1990, Dr. Weiner referred Audrey to Dr. Mary Moran, arheumatologist, for treatment of rotator cuff tendonitis. Dr.Moran gave her medication for her tendonitis and treated her fora back problem. After seeing Dr. Moran, her neck, back andshoulders felt fine.

None of the doctors Audrey saw diagnosed her withfibromyaligia. When she was admitted to RIC, the diagnosis wasmyofascial pain syndrome. When she was released from RIC, shewas diagnosed as having posttrauma disorder syndrome anddepression. Prior to December 16, 1994, she had never beendiagnosed or treated for posttraumatic stress syndrome or had anykind of psychological or psychiatric counseling.

Audrey's relationship with Clifford, her husband, and herchildren was negatively impacted by her condition following theDecember 16, 1994, accident. However, the relationships improvedafter her treatment at RIC. The accident negatively impacted hersleep patterns, and she suffered from nightmares. The nightmareshave lessened over time.

After the accident, Audrey had less energy. She could nolonger participate in social activities with her husband. Shebecame paralyzed with fear when a window shook and when, on oneoccasion, someone knocked a wineglass against a microphone tomake a point. She could no longer concentrate to work at heradvertising speciality job. It was difficult to do housework,but RIC taught her how to perform certain tasks

According to Audrey, the pain she experienced after theaccident was quite different from the pain she had suffered priorto the accident. The pain after the accident was constant, notepisodic. She continued to feel pain in her lower back everyday. She could sometimes go two hours without feeling pain.

On cross-examination, Audrey testified as follows.

Audrey acknowledged that, prior to 1994, she had beenexperiencing back pain and pain in her left shoulder and that shehad been experiencing neck pain for 20 years prior to theaccident. She also acknowledged that she had difficultiessleeping prior to the 1994 accident. In 1990, Dr. Rana treatedAudrey for lower back pain.

Regarding the accident, Audrey was seated on the benchclosest to where the tires were found. She denied sitting on theother bench in the lobby. She received the bruise to her leftarm as a result of the accident, but she did not remember how shesustained the bruise. She was not treated for any cuts orlacerations at the hospital.

In her conversations with Dr. Weiner following the accident,Audrey never told him that she had left shoulder pain or that shewas feeling stressed or anxious. She never saw Dr. Weiner fortreatment of her injuries. Audrey never told Dr. Young about herstress or nightmares because he would have observed that she wasstressed. She treated with Dr. Young in 1995 and at thebeginning of 1996. However, she did not see him again until July1996, when she was having lower back pain from picking up hergrandchild. That pain exacerbated the pain she suffered from the1994 accident.

Linda Montgomery testified as follows.

On December 16, 1994, Linda was employed as a receptionistat Hubbard Woods Motors. Linda worked at a counter. There was abench across the front of the lobby and a bench on the side ofthe lobby. Prior to the accident, Linda was behind the counter,and Audrey was seated on the bench to Linda's left. Linda had anunobstructed view of Audrey. When the van went through thewindow, the bench that was in front of the window moved. Thebench that Audrey was seated on did not move during the accident. After the accident, Linda went over to Audrey to see if shewas all right. Audrey was not on the floor, and she was notscreaming or hysterical. Linda did not observe that Audrey wasbleeding or was bruised. Prior to the accident, Audrey had notbeen seated on the bench along the window. Linda never observedany object strike Audrey.

After the trial court refused to allow the plaintiffs'attorney to question Linda as to her relationship with the ownerof Hubbard Woods Motors, the plaintiff's attorney made thefollowing offer of proof.

Linda acknowledged that at the time of the accident, BobBerger, the owner of Hubbard Woods Motors, was a friend of hersand that Linda socialized on a least one occasion with Mr. Bergerand his wife. At the time of her deposition, Hubbard WoodsMotors was still a defendant in this case. At the time of herdeposition, Linda did not believe that Mr. Berger should havebeen sued because the accident was not his fault, and Audrey didnot appear to be injured. At the time of her deposition, Lindawas no longer an employee of Hubbard Woods Motors.

After the trial court denied the plaintiffs' request to callWinnetka police officer Mike Hornstein as a rebuttal witness, theplaintiffs' attorney made the following offer of proof.

On December 16, 1994, following the accident, OfficerHornstein spoke with Audrey, Linda, and Oscar Guzman,individually. Audrey told him that she was seated on the benchstruck by the van. Linda also told him that the van struck thebench on which Audrey was seated. Finally, Oscar told him thathe left the van unattended and that it backed through the window,hitting a bench on which a woman was seated.

The jury awarded $3,048 for Audrey's medical expenses butawarded nothing for pain and suffering. After the denial of theplaintiffs' motion for a new trial, this appeal followed.
 

ANALYSIS

The plaintiffs contend that they were denied a fair trialbecause of the cumulative effect of the evidentiary errorscommitted by the trial court.
 

I. Standard of Review

An abuse of discretion standard applies when this courtreviews a trial court's evidentiary rulings. Jackson v. Graham,323 Ill. App. 3d 766, 773, 753 N.E.2d 525, 531 (2001).
 

II. Discussion

A. Linda Montgomery

The plaintiffs argue that the trial court erred when itrefused to allow them to cross-examine Linda regarding her biasat the time her deposition was taken. While Hubbard Woods Motorswas no longer a defendant in this case at the time of the trial,the plaintiffs reason that Linda would not deviate from herdeposition testimony for fear of being charged with perjury.

The scope of cross-examination rests within the broaddiscretion of the trial court. Preston v. Simmons, 321 Ill. App.3d 789, 802, 747 N.E.2d 1059, 1072 (2001). One of the purposesof cross-examination is to test the credibility of the witness. Preston, 321 Ill. App. 3d at 802, 747 N.E.2d at 1072. Subject tothe court's discretion in determining the relative value for suchpurpose, it is proper to allow inquiry into collateral mattersrevealing the past conduct of a witness which tends to impeachthe witness' credibility. Preston, 321 Ill. App. 3d at 802-03,747 N.E.2d at 1072. Thus, matters showing an interest, bias ormotive to testify falsely by a witness may be brought out oncross-examination, even if those matters are not brought out ondirect examination. Preston, 321 Ill. App. 3d at 802-03, 747N.E.2d at 1072. However, for deposition testimony to beadmissible for impeachment, that testimony must contradict an in-court statement of the witness on a material matter. Preston,321 Ill. App. 3d at 803, 747 N.E.2d at 1072.

When the plaintiffs' attorney attempted to question Lindaregarding her friendship with Mr. Berger, the defendants'attorney objected on the basis the question was beyond the scopeof direct examination and on the basis of relevancy. Even thoughthe subject of Linda's friendship with Mr. Berger was not broughtout on direct examination, it would have been proper for theplaintiffs' attorney to question her about it to reveal any biasshe would have had in favor of Hubbard Woods Motors.

However, once Hubbard Woods Motors was no longer a party tothis case, Linda's friendship with Mr. Berger was no longerrelevant, and the trial court properly sustained the objection onthat basis. Her deposition testimony therefore would not havebeen admissible for impeachment as it did not contradict her in-court statement on a material matter. Preston, 321 Ill. App. 3dat 803, 747 N.E.2d at 1072.

Moreover, assuming that Linda's deposition testimony thatshe was friends with Mr. Berger and that she did not feel that heshould have been sued had some bearing on her credibility attrial, the probative value of this evidence was outweighed by itspotential for confusing and proliferating the issues. SeePreston, 321 Ill. App. 3d at 803, 747 N.E.2d at 1072.

We conclude that the trial court did not err in restrictingthe plaintiffs' cross-examination of Linda.
 

B. Officer Hornstein

The plaintiffs argue that the trial court erred when itrefused to allow them to call Officer Hornstein as a rebuttalwitness.

Rebuttal evidence is admissible "'if it tends to explain,repel, contradict or disprove the evidence of [a witness].'"Lagestee v. Days Inn Management Co., 303 Ill. App. 3d 935, 942,709 N.E.2d 270, 276 (1999), quoting People ex rel Mendez v.Villa, 260 Ill. App. 3d 866, 870, 632 N.E.2d 322, 324 (1994). Ifa defendant presents in its case in chief an affirmative matterto support its defense, the plaintiff then has the right tointroduce evidence in rebuttal as to such affirmative matter. Lagestee, 303 Ill. App. 3d at 942, 709 N.E.2d at 276. The trialcourt has the discretion to admit or exclude rebuttal evidence,and a reviewing court will not disturb the trial court's decisionabsent an abuse of discretion. Hoem v. Zia, 239 Ill. App. 3d601, 618, 606 N.E.2d 818, 830 (1992) aff. 159 Ill. 2d. 193, 636N.E.2d 479 (1994). "'[A]n abuse of discretion is likely to occuronly when a party is prevented from impeaching witnesses,supporting the credibility of impeached witnesses, or respondingto new points raised by the opponent.'" Hoem, 239 Ill. App. 3dat 618, 606 N.E.2d at 830, quoting Barth v. Messa, 201 Ill. App.3d 19, 33, 558 N.E.2d 528, 537 (1990).

The defendant argues that Officer Hornstein's testimony wasinadmissible as hearsay.

Hearsay is an out-of-court statement that is offered toprove the truth of the matter asserted therein and dependent forits value on the credibility of the out-of-court declarant. People v. Crowe, 327 Ill. App. 3d 930, 937, 764 N.E.2d 1174, 1181(2002). The fundamental basis for excluding such a statement isthe lack of an opportunity to test the credibility of thestatement through cross-examination. Crowe, 327 Ill. App. 3d at937, 764 N.E.2d at 1181.

In Lagestee, the plaintiff testified that he reported hisfall to a security guard, who later confirmed to the plaintiffand his attorneys that the plaintiff had been injured. However,testifying on behalf of the defendant, the security guard statedthat the plaintiff had never reported his injury to her and thatwhen the plaintiff and his attorneys visited her, the plaintiffrequested that she give a statement that she had given theplaintiff a bandage. The security guard provided the statementbut recanted it in her testimony. The trial court denied theplaintiff's request to call the attorneys or the plaintiff torebut the security guard's testimony.

On review, the court held that the trial court erred inexcluding the proposed rebuttal testimony. The court held thatthe security guard's testimony that the plaintiff and hisattorneys solicited her to fabricate a statement was anaffirmative matter raised by the defense and that the plaintiffswere "entitled to present rebuttal testimony to explain,discredit or impeach the defendants' evidence." Lagestee, 303Ill. App. 3d at 943, 709 N.E.2d at 277.

Similarly, in this case, the plaintiffs did not seek to useOfficer Hornstein's testimony to prove that Audrey was seated onthe bench that was struck by the van but rather to impeachLinda's testimony by showing that she had previously stated thatAudrey was seated on the bench struck by the van. OfficerHornstein's testimony also would have served to support Audrey'scredibility, in light of Linda's testimony impeaching Audrey'sversion of the accident.

The defendants then argue that Officer Hornstein's testimonywas properly barred because it could have been offered in theplaintiffs' case in chief. However, evidence that wouldotherwise constitute proper rebuttal evidence is not renderedimproper rebuttal evidence merely because it could have beenoffered during the plaintiff's case in chief. Hoem, 239 Ill.App. 3d at 619-20, 606 N.E.2d at 830-31.

In Hoem, the court held that the trial court abused itsdiscretion when it refused to allow the plaintiff to call apulmonologist to rebut the defendants' experts claims that theplaintiff's cardiologist did not correctly state the standard ofcare. The court noted that the defendants' motion for a directedverdict at the close of the plaintiff's case indicated to theplaintiff that the cardiologist's testimony was sufficient toestablish her prima facie case and that it was only after thedefendants presented their evidence challenging thecardiologist's testimony that the need to rebut that evidencearose. The court then stated as follows:

"It would be a strange rule indeed that would require aplaintiff to present all conceivably relevant evidence inher case in chief - despite her preference not to do so -because she otherwise would be barred from presenting thatevidence in rebuttal in the event defendants presentevidence in their case in chief that plaintiff needs to (andcan) rebut. *** Such a rule would also be antithetical tothe concerns expressed by all involved in our civil justicesystem about its present costs, wastes, and delays."(Emphasis in original.) Hoem, 239 Ill. App. 3d at 619, 606N.E.2d at 830.

While the plaintiffs in this case were aware that Lindawould testify that Audrey was not seated on the bench struck bythe van, nevertheless, the evidence that she was seated on theother bench was not introduced until the defendant's case inchief. Thus, there was no reason for the plaintiffs to introduceOfficer Hornstein's testimony until after the defendants hadintroduced that evidence in their case in chief.

We conclude that the trial court abused its discretion whenit denied the plaintiffs' request to call Officer Hornstein as arebuttal witness.

Where it appears an error did not affect the outcome of thetrial, or where the reviewing court can see from the entirerecord that no harm has been done, the judgment will not bedisturbed. Jackson v. Pellerano, 210 Ill. App. 3d 464, 471, 569N.E.2d 167, 172 (1991). A party is not entitled to a reversalbased upon rulings on evidence unless the error was substantiallyprejudicial and affected the outcome of the trial. Jackson, 210Ill. App. 3d at 471, 569 N.E.2d at 172. The burden is on theparty seeking reversal to establish prejudice. Jackson, 210 Ill.App. 3d at 471, 569 N.E.2d at 172.

While negligence was not at issue in this case, Linda's unrebutted testimony directly impacted on Audrey's credibility. See Lagestee, 303 Ill. App. 3d at 944, 709 N.E.2d at 277. Leftunanswered by the trial court's ruling, Linda's testimony createddoubts about Audrey's credibility, leaving the jury to wonder ifAudrey was being truthful in her testimony regarding the severityof her condition as a result of the accident and giving credenceto the defendant's theory that the majority of Audrey'scomplaints were the result of prior existing conditions unrelated to the accident. The fact that the jury awarded Audreyher medical expenses and nothing for pain and suffering stronglysuggests that Audrey's credibility was in doubt in the eyes ofthe jury.

The prejudice is clear in this case. Therefore, we concludethat this error requires a new trial.

Since we are remanding for a new trial, we will address theplaintiffs' remaining contentions of error which may arise onretrial of this case.
 

C. Dr. Young

The plaintiffs argue that the trial court erred in grantingthe defendants' motion in limine, barring Dr. Young fromtestifying that he had reviewed certain records since the time ofhis deposition.

On February 4, 2000, the plaintiffs filed their "SecondSupplemental Answers to Supreme Court Rules 213(f) and (g)Interrogatories." Their answers disclosed, inter alia, thefollowing regarding Dr. James Young:

"It is expected that Dr. Young will testify consistentwith his medical records and deposition testimony, as wellas the medical and psychological records of theRehabilitation Institute of Chicago and other healthcareproviders, regarding the nature and extent of the injuriesPlaintiff sustained as a result of the December 16, 1994occurrence, that Plaintiff's injuries were caused by thecomplained of occurrence, and regarding the permanency ofPlaintiff's injuries and Plaintiff's prognosis."

The second supplemental answers also included the followingstatement:

"The bases for the opinions of all of the foregoingmedical providers will or may be the following: Physicalexaminations, diagnostic testing and psychologicalevaluations of Audrey Chapman, conversations with andobservations of Audrey and Clifford Chapman, reviews oftheir own medical records and those of all other medicalproviders identified herein; reviews of depositiontranscripts, and their education, training and experience."

In their motion in limine No. 9, the defendants sought tobar Dr. Young from testifying that he reviewed the medicalrecords of Drs. Spencer, Rana, and Weiner or the physical therapyrecords from Buffalo Grove or Lutheran General because, at hisdeposition, Dr. Young testified that he had not seen any of theabove records.(2)

The trial court granted the defendants' motion in limine No.9. The court ruled that the plaintiffs' disclosure of Dr. Youngdid not comply with Rule 213 (177 Ill. 2d R. 213). The courtconcluded that the plaintiffs had not disclosed that Dr. Youngeither reviewed or relied on the records of these specificdoctors or the physical therapy records from Buffalo Grove orLutheran General.

At the time of the trial in this case, Rule 213 provided inpertinent part as follows:

"(f) Identity and Testimony of Witnesses. Upon writteninterrogatory, a party must furnish the identity andlocation of witnesses who will testify at trial, togetherwith the subject of their testimony.

(g) Opinion Witness. An opinion witness is a personwho will offer any opinion testimony. Upon writteninterrogatory, the party must state:

(i) the subject matter on which the opinionwitness is expected to testify;

(ii) the conclusions and opinions of the opinionwitness and the basis therefor; and

(iii) the qualifications of the opinion witness;and provide all reports of the opinion witness." 177Ill. 2d R. 213. Rule 213, eff. December 31, 1998.

Other than the rule itself, the plaintiffs cite no authorityto support their argument that the trial court erred in grantingthe defendants' motion in limine No. 9. The plaintiffs' failureto cite authority in support of their argument violates SupremeCourt Rule 341(e)(7) (Official Reports Advance Sheet No. 21(October 17, 2001), Rule 341(e)(7), eff. October 1, 2001) and iswaived.

Assuming, arguendo, that we were to address the merits ofthis issue, we recognize that a trial court has broad discretionto grant or deny a motion in limine, and as such, we will notreverse the trial court's decision to grant or deny such a motionabsent a clear abuse of discretion. City of Quincy v. DiamondConstruction Co., 327 Ill. App. 3d 338, 342-43, 762 N.E.2d 710,714 (2002). In addition, a trial court's decision regardingwhether an opinion has been adequately disclosed such that it maybe admitted into evidence is also reviewed under the abuse ofdiscretion standard. Prairie v. Snow Valley Health Resources,Inc., 324 Ill. App. 3d 568, 576, 755 N.E.2d 1021, 1029 (2001).

Compliance with Rules 213(f) and (g) is not optional, andthe barring of opinion witness testimony is an appropriate andavailable sanction for a party's failure to adequately disclose those opinions. LoCoco v. XL Disposal Corp., 307 Ill. App. 3d684, 691, 717 N.E.2d 823, 829 (1999).

Rule 213(g) clearly provides that, in conjunction withproviding the witness's opinion, the basis for that opinion mustbe provided as well. We agree with the trial court thatproviding the basis in a "catch-all" provision, unconnected withany specific witness or opinion, does not comply with thedisclosure requirements of Rule 213.

We conclude that the trial court did not abuse itsdiscretion when it granted the defendants' motion in limine No.9.
 

D. Dr. Neil Pliskin

The plaintiffs argue that the trial court erred when itgranted the defendants' motion in limine No. 1 barring evidencethat Dr. Pliskin, who was to testify for the plaintiffs, wasoriginally retained by the defendant.

In the context of an eminent domain proceeding, the reviewing court recognized the probative value of the admissioninto evidence of testimony of an expert appraisal witness's prioremployment relationship with one of the parties to thecondemnation proceeding. Nevertheless, the court determined thatthe probative value was outweighed by the evidentiary counter-factors of prejudice and creation of collateral issues and heldthat the evidence was properly excluded from the jury. SeeDepartment of Public Works & Buildings v. Guerine, 19 Ill. App.3d 509, 513-14, 311 N.E.2d 722, 725-26 (1974).

The plaintiffs maintain that the defendants hired Dr.Pliskin to determine if Audrey was malingering. The plaintiffsreason that because Dr. Pliskin testified at trial that Audreywas not malingering and that the December 16, 1994, accident wasthe cause of her illness, the probative value of his testimonyoutweighed any prejudice to the defendants.

We disagree. In Guerine, the court assumed the scenario that the party decided not to call a previously hired appraiserbecause his valuation was not in line with the value the partyhad in mind. While recognizing the probative value of thisevidence to the issue of just compensation, the court thenrecognized that such evidence would arouse the jury's emotions ofprejudice and would require that the opposing party explain whyit did not call the appraiser, creating a collateral issue anddistracting the jury's attention from the main issue ofdetermining just compensation. Guerine, 19 Ill. App. 3d at 513,311 N.E.2d at 725; but see County of St. Clair v. Wilson, 284Ill. App. 3d 79, 672 N.E.2d 27 (1996) (disclosure that an expertwitness was originally retained by the opposing party appropriateas a general rule, declining to follow Guerine).(3)

While evidence that Dr. Pliskin was once employed by thedefendant has probative value, admitting such evidence wouldfocus the jury's attention on the fact that the defendant chosenot to call Dr. Pliskin as a witness, rather than on the meritsof the doctor's testimony. Under these circumstances, we cannotsay that the trial court abused its discretion in granting thedefendant's motion in limine No. 1.
 

E. Dr. Sager

The plaintiffs argue that the trial court erred when itsustained the defendants' objections to the plaintiffs' questionsto Dr. David Sager, the defendants' expert witness, at hisevidence deposition and struck sections of Dr. Sager's testimony.

The plaintiffs have failed to cite any authority in supportof their argument. Therefore, it is waived. Official AdvanceSheet Reports No. 21 (October 17, 2001), Rule 341(e)(7), eff.October 1, 2001.

The judgment of the trial court is reversed, and the causeis remanded for a new trial as to damages.

Reversed and remanded.

HOFFMAN, P.J., and KARNEZIS, J., concur.

 

 

1. The verdict in this case was returned only against S & GDesign Corporation. However, an appellee's brief in this casewas filed on behalf of both S & G Design Corporation and OscarGuzman.

2. Although motion in limine No. 9 indicates otherwise, therelevant portions of Dr. Young's deposition are not attached tothe motion in limine in the record on appeal.

3. The issue was raised in the context of a personal injuryaction in Akers v. Atchison, Topeka & Santa Fe Ry. Co., 187 Ill.App. 3d 950, 543 N.E.2d 939 (1989). However, while noting thatthe case was distinguished from Guerine because, in Guerine, amotion in limine had been filed to prohibit the testimonyregarding the prior employment, this district did not reach themerits of the issue because the issue was not preserved forappeal.