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FOURTH DIVISION
February 26, 2004

PRESIDING JUSTICE QUINN delivered the opinion of the court:

Defendant, the County of Cook, doing business as Cook County Hospital (CookCounty), appeals from a retrial in which a $5.3 million judgment was entered ona jury verdict in favor of plaintiff, Darlene Clayton, special administrator ofthe estate of Richlyn Cork. The first trial had resulted in a verdict fordefendant. Plaintiff appealed and this court reversed the judgment, based uponboth defense counsel's improper argument and discovery violations under SupremeCourt Rule 213(g) (177 Ill. 2d R. 213(g)). See Clayton v. County of Cook, No.1-97-1825 (1999) (unpublished order under Supreme Court Rule 23). Followingretrial, defendant's posttrial motion was denied.

Defendant appeals, arguing that the circuit court abused its discretion by:(1) allowing new opinions from plaintiff's expert witness in violation of Rule213(g); (2) allowing evidence of the treating physician's failure to insert anarterial blood gas (ABG) line into Cork; (3) barring any evidence regarding thecircumstances of Cork's initial injury; (4) allowing Dr. Robert Kirschner, a CookCounty assistant medical examiner, to testify with respect to opinions thatallegedly were outside the scope of his medical expertise; (5) refusing toinstruct the jury on sole proximate cause and allowing damages based on Cork'shabit of industry; and (6) denying defendant's motion for a new trial based onthe conduct of plaintiff's counsel, including the injection of personal beliefsin closing argument, argument of facts not in evidence and violations of rulingson motions in limine.

For the reasons that follow, we reverse and remand for a third trial.

On March 12, 1991, plaintiff, Cork's mother, found Cork, then 12 years old,in her bedroom lying unconscious with a cord wrapped around her neck. The cordwas attached to the closet door. Cork was unable to breathe on her own, wasunresponsive and had ligature marks on her neck. Cork first was transported byambulance to St. Francis Hospital (St. Francis) in Evanston, where she wasintubated, which required the placement of a tube through her nose and back ofher throat into the windpipe, or trachea, for attachment to a mechanicalventilator to assist in breathing. She was transferred to Cook County later thatevening.

During the first few days of her hospitalization at Cook County, Corkremained intubated and comatose. She developed several complications, includingacute respiratory distress syndrome (ARDS), in which the lining of the lungsleaks, filling the lung sacs with fluid. ARDS also causes scab-like material tofill up the lung sacs, making it difficult to keep blood oxygenated and to removecarbon dioxide. In addition, Cork developed two types of pneumonia and empyema,an infection inside or outside the lungs characterized by pockets of pus. A lungwith chronic empyema is at risk of collapse, requiring surgery. Due to Cork'sARDS and empyema, her left lung was markedly "stiff" or adherent to the chestwall.

In light of her condition, Cork remained attached to a mechanicalventilator to the extent that a tracheostomy was required. A tracheostomy is asurgical procedure to open the trachea and also refers to the formation of theopening or the opening itself. Repeated efforts were made to remove thesecretions from Cork's lungs by pounding on her chest and suctioning out thematerial through the endotracheal tube, which was replaced gradually by smallertubes until Cork was able to breathe on her own. In addition, Cork was given twodifferent courses of antibiotics to treat her pneumonia.

On April 27, 1991, Cork was discharged from Cook County in stablecondition, but with residual ARDS. Hospital records showed that a laryngoscopywas performed, but not a bronchoscopy. As part of her discharge instructions,Cork was scheduled for an April 29 appointment at the Rehabilitation Instituteto be evaluated for brain damage and a May 2 appointment at the Fantus PediatricSurgery Clinic. She also was instructed to call the pediatric intensive careunit or go to the emergency room at Cook County if she had difficulty breathing. On the morning of May 3, 1991, Cork began to experience difficultybreathing after inhaling tar fumes. Cork panted, gasped for air and coughed upphlegm for a period of 15 minutes. She was brought to the emergency room at St.Francis, where she exhibited symptoms of cyanosis and hypoxia, or lack of oxygen. Her oxygen saturation level dropped to 80%. A chest x ray revealed that Cork hadpneumonia in her left lung. Cork immediately was administered 100% oxygen, whichraised her saturation level into the mid-90s.

At 9 p.m. that evening, Cork again was transferred to Cook County. She wasadmitted directly into the pediatric intensive care unit (PICU), where she hadbeen admitted previously. Cork had difficulty breathing, tachycardia (fast heartrate), high blood pressure and nasal flaring. ABG tests showed continuingrespiratory problems. Cork was observed that evening.

On May 4, 1991, at 11 a.m., Cook County physicians attempted to intubateCork, but were unsuccessful due to resistance in her trachea, allegedly fromstenosis, an internal tracheal obstruction, created by scarring from her previoustracheostomy. Doctors administered a muscle relaxant that paralyzed Cork,allowing her to be ventilated. Cork's oxygen saturation level dropped to 40%while doctors attempted to intubate her. Surgical, preoperation andpostoperation notes all stated that the intubation tube was blocked by astenosis.

Cork was taken to the operating room at 1 p.m. for an emergencytracheostomy. Doctors attempted to insert a number of tracheal tubes insuccessive sizes ranging from large to small, but had difficulty inserting thetube further into her trachea. Doctors also had difficulty "bagging" Cork tokeep her oxygenated because of an obstruction distal (further down from) thetracheal tube. "Bagging" is the process of manually ventilating a patient witha face mask and an "Ambu" bag, or by attaching the bag to the endotracheal tube.

During the tracheostomy, Cork's oxygen saturation level had dropped to 40%,resulting in brain damage. Cork died on May 8, 1991. Although the operatingroom record sheet for May 4, 1991, listed preoperative and postoperativediagnoses of stenosis, no stenosis was found during the autopsy.

On April 10, 1992, plaintiff filed a two-count complaint against defendant,based upon the allegedly negligent medical care given to Cork in April and May1991. This case initially was tried in January 1996, resulting in a jury verdictin favor of defendant. As stated previously, this court reversed the verdict andremanded for a new trial based on improper argument of defense counsel anddiscovery violations. The case was retried in May 2001. The following evidencepertinent to the disposition of this appeal was adduced at retrial.

Dr. Madelyn Kahana, a pediatric intensivist, specializing in pediatrics,anesthesiology and critical care, testified as an expert witness for plaintiff. Over defendant's Rule 213(g) objection, Dr. Kahana testified that on May 3, 1991,Cork presented to Cook County with a tracheal obstruction. Cook County delayedthe establishment of her airway and, once the decision had been made to place anendotracheal tube, it was done without supervision, in the wrong place, by peoplewho were inexperienced. According to Dr. Kahana, Cork died due to a lengthyperiod of hypoxia, or lack of oxygen. She testified, "at best, most of the night[on May 3], a second year pediatric resident [was] watching her; that he wasassisted by a first year surgical resident and that *** was insufficientexpertise to recognize the escalation of her symptoms." Defendant moved tostrike Dr. Kahana's testimony for violating Rule 213(g) with respect to the lackof supervision during the second admission. The circuit court directedplaintiff's counsel to retract Dr. Kahana's statements. The court stated, "[y]ouneed to clear this up because this is a problem. I read through her 213[deposition]. Nothing like this is in here." Dr. Kahana explained that Dr.Peter Bridges, a first-year resident, monitored Cork throughout the night, butshe noted repeatedly his failed attempts from 8:30 p.m. to 11:30 p.m. to insertan arterial line to measure carbon dioxide levels. Defense counsel objectedbased on a motion in limine barring plaintiff from introducing evidence relatingto the inability of Dr. Bridges to start an arterial line. The circuit courtsustained defendant's objection. Dr. Kahana testified it was not inappropriatefor a resident to be unable to insert an arterial line. She clarified that thefact a resident was watching the patient overnight on May 3 was not a deviationfrom the standard of care.

Dr. Kahana testified that Dr. Bridges had ordered an x ray at 9:45 a.m. onMay 4 to rule out airway narrowing or stenosis. At 10 a.m., there was sufficienttime to bring Cork to the operating room so that an airway management specialistcould perform a bronchoscopy to determine the cause for her labored breathing. The 11 a.m. ABG test result was abnormal, which reflected an inability to removecarbon dioxide in the face of continued difficulty breathing.

Dr. Kahana did not criticize the failure to diagnose the tracheal stenosis;rather, she was critical of the failure to have an intervention to treat thestenosis. In Dr. Kahana's opinion, the standard of care required that Corkshould have been taken to the operating room at 7 a.m. on May 4. Severebreathing problems were noted at 7:30 a.m., but there was no intervention untilnoon. Dr. Kahana testified that, by the time Cork had the emergencytracheostomy, her brain was damaged irreversibly.

Prior to Dr. Kahana's cross-examination, plaintiff's counsel asked her ifshe had criticism with respect to a lack of supervision for the second admission,with the exception of the intubation on May 4, to which she replied, "[t]hatwould require a bit of an explanation." Defendant moved for a mistrial. Thecourt noted outside the presence of the jury that Dr. Kahana's opinion withrespect to lack of supervision was not disclosed pursuant to Rule 213(g). Duringthe hearing in chambers, Dr. Kahana noted that her new opinion "doesn't play alarge role in what happened to this child because they still had time to dosomething about her care that morning when she was seen by more senior people." The court reiterated that Dr. Kahana's opinion was a surprise, but denieddefendant's motion for a mistrial.

The circuit court then attempted to remedy the Rule 213(g) problem byasking Dr. Kahana in front of the jury, "[a]t the time you disclosed youropinions and gave your deposition, you had no criticism of Cook County Hospitalfor its failure to supervise its residents on May 3rd from the time of admissionuntil 12 o'clock the next day, is that correct?" Dr. Kahana responded, "[t]hat'scorrect."

Defendant also moved to strike Dr. Kahana's testimony based upon the Rule213(g) violation. Following further argument on defendant's motion, the courtstated to plaintiff's counsel that he was supposed to have cleared up thedisclosure of Dr. Kahana's new opinion, but failed to do so. It is unclear fromthe record whether the court ruled on defendant's motion to strike Dr. Kahana'stestimony.

On cross-examination, Dr. Kahana testified that Cork had aspirated gastriccontents that could result in significant injury to lung sacs and tissue. Dr.Kahana agreed that Cork had pneumonia, empyema and ARDS during her firstadmission to Cook County. Dr. Kahana stated that patients are at an increasedrisk for difficulties during intubation if they have ARDS because duringinstrumentation of the airway, the patient may become hypoxic or a bronchospasmcould develop. Dr. Kahana then explained that Cork may have been in the recoveryphase of ARDS during the second admission, but she believed that ARDS andbronchospasm did not cause the hypoxia which occurred during the intubation.

Defendant had moved in limine to bar Dr. Kirschner from testifying that theefforts at intubating on May 4 failed because Cork had a tracheal stenosis. Defendant argued that Dr. Kirschner did not find any evidence of a trachealstenosis in the autopsy he performed on May 9, 1991, and did not have theexpertise to testify with respect to what doctors would have seen had theyperformed a bronchoscopy. The circuit court heard voir dire testimony as to Dr.Kirschner's experience outside the presence of the jury and denied defendant'smotion in limine, finding that any lack of experience went to the weight of thetestimony.

Dr. Kirschner then testified before the jury on direct examination that hisopinions remained the same as when he testified in the first trial. Dr.Kirschner's external examination showed evidence of a tracheostomy and a previoustracheostomy scar. There was no evidence of a stenosis at the time of theautopsy, but there was a previous functional stenosis based upon a "very markedinflammation of the trachea." The functional stenosis caused hypoxicencephalopathy. Dr. Kirschner further testified that a bronchoscopy on May 3,1991, would have visualized the presence of the stenosis and that neitherpneumonia nor empyema contributed to Cork's death.

On cross-examination, Dr. Kirschner testified that the cause of death wasthe encephalopathy as a consequence of injuries Cork sustained in March 1991. Although Dr. Kirschner's death certificate noted that the immediate causes ofdeath were anoxic encephalopathy and hanging, Dr. Kirschner was precluded fromtestifying about the hanging. The death certificate also noted that pneumoniawith empyema was a significant condition contributing to the cause of death. Dr.Kirschner testified that when he performed the autopsy, he was aware of theasphyxial injuries Cork sustained.

On redirect examination, Dr. Kirschner clarified that pneumonia and empyemawere proximate causes of Cork's death, but the medical cause of death clearly wasthe stenosis that led to the anoxic encephalopathy. Dr. Kirschner did not listthe functional stenosis on the autopsy report because it was a clinicalinterpretation, which is not included in the report.

Following the presentation of testimony and closing argument, the juryreturned a verdict in favor of plaintiff on the wrongful death count in theamount of $4.3 million and $1 million for the survival count. Defendant fileda posttrial motion, which the circuit court denied. Defendant appeals.

Defendant initially asserts that plaintiff's opinion witness, Dr. Kahana,expressed opinions and bases for her opinions in her testimony that were notdisclosed pursuant to Rule 213(g). Defendant argues that the circuit courtabused its discretion by failing to strike Dr. Kahana's testimony or granting amistrial. Defendant maintains that Dr. Kahana reviewed additional materialsafter her deposition and rendered new opinions at trial that had not beendisclosed, causing unfair prejudice. Defendant challenges the presentation ofthe following opinions: (1) a deviation from the standard of care occurred forfailure to supervise the medical residents; (2) the location and personnel forthe May 4 intubation were improper; (3) the completion of an intubation uponCork's second admission was urgent; (4) Cook County doctors cut out a piece ofthe trachea when they performed the tracheostomy, which explains the lack ofevidence of stenosis; (5) Cork did not have pneumonia; (6) no documents reflectedCook County's concern regarding Cork's ability to breathe; (7) Dr. Bridges'decision to order a chest x ray to rule out airway narrowing would not treat thestenosis; (8) the chest x rays were of poor quality; (9) Cork experienced a risein the level of carbon dioxide from her May 3 admission until the time of herintubation; (10) Cork could not possibly have had a stiff lung because herrespiratory rate was set at 25, whereas if she had a stiff lung, the respiratoryrate would have been 50 or 60; (11) the fact that Cork was hungry did not meanshe could not have had an airway obstruction or tracheal stenosis; (12) theelectrocardiogram (EKG) reading from 6 a.m. on May 4 showed that Cork experiencedirregular heartbeats that could have been seen on an EKG strip; and (13) a dayafter the tracheostomy, a large leak developed in the tube that allowed a volumeloss of over half the oxygen.

Plaintiff responds that the criticism by Dr. Kahana regarding lack ofsupervision was retracted later, did not address the cause of Cork's death and,therefore, was not prejudicial. Plaintiff avers that the record affirmativelydemonstrates the court exercised its discretion in rendering its decision toremedy the violation and that defendant failed to show an abuse of discretion. In addition, plaintiff contends that the court ruled upon countless Rule 213objections based on the facts and disclosure pertinent to each situation and thatno error occurred.

The admission of evidence is within the circuit court's discretion, and thecourt's ruling will not be reversed absent an abuse of discretion. Gill v.Foster, 157 Ill. 2d 304, 312-13, 626 N.E.2d 190 (1993). An abuse of discretionmay be found only where no reasonable man would take the view adopted by thecircuit court. Smith v. Silver Cross Hospital, 339 Ill. App. 3d 67, 74, 790N.E.2d 77 (2003) (Smith).

At retrial, the applicable version of Rule 213(g) provided:

"An opinion witness is a person who will offer any opiniontestimony. Upon written interrogatory, the party must state:

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

(ii) the conclusions and opinions of the opinion witness and the bases therefor; and

(iii) the qualifications of the opinion witness;  and provide all reports of the opinion witness." 177 Ill. 2d R. 213(g).

The committee comments for Rule 213(g) then in effect specified that, "in orderto avoid surprise, the subject matter of all opinions must be disclosed pursuantto this rule and Supreme Court Rule 218, and that no new or additional opinionswill be allowed unless the interests of justice require otherwise." 177 Ill. 2dR. 213(g), Committee Comments.⁽¹⁾

Illinois Supreme Court rules on discovery are mandatory rules of proceduresubject to strict compliance by the parties. Seef v. Ingalls Memorial Hospital,311 Ill. App. 3d 7, 21, 724 N.E.2d 115 (1999) (Seef); Department ofTransportation v. Crull, 294 Ill. App. 3d 531, 537, 690 N.E.2d 143 (1998)(Crull). Discovery rules allow litigants to ascertain and rely upon the opinionsof experts retained by their adversaries. Crull, 294 Ill. App. 3d at 537, citingChicago & Illinois Midland Ry. Co. v. Crystal Lake Industrial Park, Inc., 225Ill. App. 3d 653, 658, 588 N.E.2d 337 (1992). Parties have a duty to supplementseasonably or amend prior answers or responses whenever new or additionalinformation subsequently becomes known to that party. 177 Ill. 2d R. 213(i). To allow either side to ignore the plain language of Rule 213 defeats its purposeand encourages tactical gamesmanship. Crull, 294 Ill. App. 3d at 537.

The Crull court stated, "[t]rial courts should be more reluctant under Rule213 than they were under former Rule 220 (1) to permit the parties to deviatefrom the strict disclosure requirements, or (2) not to impose severe sanctionswhen such deviations occur." 294 Ill. App. 3d at 539. However, neither Rule 213nor its committee comments provide the circuit court with a guideline describinghow to formulate a remedy once a violation occurs. The most important functionof a court of review is to provide direction to the circuit court as to how toaddress issues that arise at trial. Consequently, we next address the issue ofwhat remedies a circuit court has available to it when a violation of Rule 213occurs at trial.

A circuit court has the discretion to shape a remedy following a violationof Rule 213, including the exclusion or limitation of the scope of experttestimony. Boland v. Kawasaki Motors Manufacturing Corp., USA, 309 Ill. App. 3d645, 652-53, 722 N.E.2d 1234 (2000) (Boland). The formulation of a remedy shouldreflect the underlying purpose of Rule 213 by preventing unfair prejudice or thedeprivation of a party's ability to prepare adequately his case through no faultof his own.

First, upon a party's Rule 213 objection, the proponent of the evidence hasthe burden to prove the opinions were provided in a discovery deposition or Rule213 interrogatory or answer. 177 Ill. 2d R. 213(g), (i); see also OfficialReports Advance Sheet No. 8 (April 17, 2000), R. 213(g), eff. July 1, 2002. Acircuit court has the discretion to review Rule 213 objections in chambers todetermine whether opinions were disclosed properly. Seef, 311 Ill. App. 3d at22.

Next, in the event the circuit court finds that a party has violated Rule213 disclosure requirements and depending upon the severity of the violation, theopposing party has the option of moving to: (1) strike only the portion of thetestimony that violates the rule; (2) strike the witness's entire testimony andbar the witness from testifying further; and (3) have a mistrial declared. Thecircuit court has the discretion to determine the appropriate remedy. Boland,309 Ill. App. 3d at 652-53. The court must ensure that the applicable sanctionallows for a fair trial rather than punish the party that committed theviolation. Sobczak v. Flaska, 302 Ill. App. 3d 916, 926, 706 N.E.2d 990 (1998)(Sobczak); Flanagan v. Redondo, 231 Ill. App. 3d 956, 963, 595 N.E.2d 1077(1991). Each case presents unique factual circumstances, which should beconsidered in determining whether a sanction is imposed. Boatmen's National Bankof Belleville v. Martin, 155 Ill. 2d 305, 314, 316-17, 614 N.E.2d 1194 (1993)(Boatmen's National Bank) (defendant was not prejudiced by undisclosed testimonybecause it was cumulative of other testimony).

The appellate court has addressed the issue of which sanctions areappropriate in many cases. See Nassar v. County of Cook, 333 Ill. App. 3d 289,303-04, 775 N.E.2d 154 (2002) (circuit court did not abuse its discretion byadmitting challenged testimony because plaintiffs could not establish prejudicewhere the testimony was cumulative of previously introduced testimony); Prairiev. Snow Valley Health Resources, Inc., 324 Ill. App. 3d 568, 574-77, 755 N.E.2d1021 (2001) (affirming circuit court's decision to grant a new trial upon adetermination that expert witness's testimony, which went to the heart of thecase, deviated from that disclosed); Regala v. Rush North Shore Medical Center,323 Ill. App. 3d 579, 585, 752 N.E.2d 443 (2001) (redirect examination of expertwitness went beyond the scope of cross-examination by eliciting new testimonypreviously undisclosed under Rule 213, warranting reversal and remand for a newtrial); Susnis v. Radfar, 317 Ill. App. 3d 817, 829, 739 N.E.2d 960 (2000)(Susnis) (refusal to allow undisclosed expert opinion on deviation from standardof care was not an abuse of discretion where plaintiff was allowed to elicit sametestimony after rephrasing the question); Copeland v. Stebco Products Corp., 316Ill. Ap. 3d 932, 945-46, 738 N.E.2d 199 (2000) (Copeland) (circuit court'sfailure to declare a mistrial was a clear abuse of discretion under totality ofthe circumstances, where surprise undisclosed testimony unfairly undermined thedefense strategy and undercut defendant's cross-examination); Seef, 311 Ill. App.3d at 24 (cumulative effect of erroneous admission of undisclosed opinionsmandated reversal and remand to the circuit court for a new trial); Boland, 309Ill. App. 3d at 652 (circuit court had discretion to conclude that both partiesviolated Rule 213 disclosure requirements and to fashion a remedy); LoCoco v. XLDisposal Corp., 307 Ill. App. 3d 684, 691, 717 N.E.2d 823 (1999) (circuit courtdid not abuse its discretion by barring opinion witness testimony as a sanctionfor a party's failure to disclose); Warrender v. Millsop, 304 Ill. App. 3d 260,270-71, 710 N.E.2d 512 (1999) (circuit court abused its discretion by failing toexclude testimony of defendant's medical expert and surveillance videotape ofpersonal injury plaintiff as sanctions for defendant's violation of discoveryrules); Adami v. Belmonte, 302 Ill. App. 3d 17, 24, 704 N.E.2d 708 (1998)(circuit court did not abuse its discretion by barring plaintiff from calling anopinion witness identified only two weeks before trial in violation of Rule 213). Logically, it follows that the severity of the sanction imposed be dependent uponthe prejudicial impact of the Rule 213 violation.

The most common scenario presented to this court is that the issue of aRule 213 violation comes to the circuit court's attention during the testimonyof an expert witness who has expressed an opinion not previously disclosed. Thereal problem is that, all too often, the witness already has expressed this "new"opinion when an objection is made. Unfortunately, merely striking the portionof the testimony that was violative of Rule 213 will not always be sufficient toremedy the prejudice to the opposing party. The discussion as to whether thetestimony was violative of Rule 213 and, if so, what remedy should be appliedshould be held outside the presence of the jury. See Seef, 311 Ill. App. 3d at22. Initially, this discussion may be held outside the presence of the witnessas well, but the circuit court may find it useful to have the witness present sohe or she can be voir dired. The presence of the witness also will facilitatean explanation of the nature of the violation to the expert and what steps mustbe taken to prevent further improper testimony. To remedy the prejudice thatalready has occurred, the circuit court can fashion whatever questions andanswers would be most appropriate.

One way to retract the offensive testimony would be for the circuit courtor the attorney who elicited the testimony to ask the witness, "To make thingsclear, in your testimony today, you are not saying [the subject matter of theRule 213 violation - e.g., 'the standard of care was violated by having medicalresidents, Dr. A and Dr. B, treat the patient']." Phrasing the question in thismanner will allow the witness to retract the testimony that violated Rule 213without falsely testifying that he or she does not have such an opinion. Ofcourse, the circuit court has the discretion to determine the appropriate remedyin any given case. The parties should assist the circuit court in thisdetermination by suggesting workable solutions rather than merely asking for amistrial on the one hand, or arguing that no remedial action is needed on theother.

In determining whether striking the witness's entire testimony and barringthe witness from testifying further are appropriate sanctions, the followingfactors must be considered: "(1) surprise to the adverse party; (2) theprejudicial effect of the witness' testimony; (3) the nature of the witness'testimony; (4) the diligence of the adverse party; (5) whether objection to thewitness' testimony was timely; and (6) the good faith of the party calling thewitness." Boatmen's National Bank, 155 Ill. 2d at 314; see also Sobczak, 302Ill. App. 3d at 926.

Finally, the circuit court has the discretion to declare a mistrial. Copeland, 316 Ill. App. 3d at 944. A mistrial is warranted when the Rule 213violation "is of such character and magnitude as to deprive a party of a fairtrial and the party seeking the mistrial demonstrates actual prejudice as aresult." Copeland, 316 Ill. App. 3d at 944. In other words, if a less severesanction cannot eliminate unfair prejudice, a mistrial must be declared. SeeCopeland, 316 Ill. App. 3d at 945-46. The following factors are relevant toassess prejudice: "(1) the strength of the undisclosed evidence; (2) thelikelihood that prior notice could have helped the defense discredit theevidence; (3) the feasibility of a continuance; and (4) the willfulness of theparty in failing to disclose." Copeland, 316 Ill. App. 3d at 945. The failureto disclose opinion testimony under Rule 213 should not allow a party to gain atactical advantage by undermining the adverse party's strategy or undercuttingcross-examination. See Copeland, 316 Ill. App. 3d at 945-46. "Rule 213 isdesigned to give those involved in the trial process a degree of certainty andpredictability that furthers the administration of justice and eliminates trialby 'ambush.'" Copeland, 316 Ill. App. 3d at 946, citing Firstar Bank of Illinoisv. Peirce, 306 Ill. App. 3d 525, 535-36, 714 N.E.2d 116 (1999) (Firstar Bank).

With the above principles in mind, a review of the instant record shows Dr. Kahana presented entirely new opinion testimony alleging a lack supervisionof defendant's residents. Although plaintiff's Rule 213(g) disclosures were notincluded in the record, the report of proceedings contains numerous defenseobjections based upon Rule 213 violations and colloquies between the court andthe parties detailing plaintiff's failure to disclose Dr. Kahana's opinions. Therecord establishes the court knew that Dr. Kahana had not previously disclosedher opinions with respect to supervision because plaintiff's counsel admitted theviolation during proceedings held in chambers. Outside the presence of the jury,Dr. Kahana admitted that she presented new opinions and asked the court, "[h]owcan you swear to tell the truth, the whole truth and nothing but the truth whenyou have a new definition of the whole truth?"

Here, the circuit court directed plaintiff's counsel to retract the errornumerous times, but counsel failed to follow the order. The court attempted toremedy the violation by posing the following question to Dr. Kahana in thepresence of the jury, "At the time you disclosed your opinions and gave yourdeposition, you had no criticism of Cook County Hospital for its failure tosupervise its residents on May 3rd from the time of admission until 12:00 o'clockthe next day." This question solidified rather than remedied the Rule 213(g)violation, because it verified that Dr. Kahana presented new, undisclosedopinions. Significantly, Dr. Kahana's undisclosed opinions provided the jurywith a new negligence theory, namely, that defendant's failure to recognize theescalation in Cork's symptoms due to a lack of proper supervision caused thedifficulty that occurred during the intubation and the resulting injury. Thecourt's failure to provide an adequate remedy to eliminate the resultingprejudice from Dr. Kahana's undisclosed opinions was an abuse of discretion. The present case involved complex testimony hinging on an explanation asto why defendant's doctors failed to intubate Cork properly. Dr. Kahana's newopinions offered the jury a reason to find that defendant was negligent. Thisis precisely the situation which Rule 213 was intended to address and noextenuating circumstances exist justifying the violation of the rule in thiscase. See Seef, 311 Ill. App. 3d at 23-24; Crull, 294 Ill. App. 3d at 537-38;Susnis, 317 Ill. App. 3d at 828-29; Copeland, 316 Ill. App. 3d at 938-46; FirstarBank, 306 Ill. App. 3d at 532-36. Contrary to plaintiff's argument, Dr. Kahana'sundisclosed opinions affected the outcome of the trial because defendant wassurprised and prejudiced as a result.

Accordingly, the erroneous admission of Dr. Kahana's undisclosed opinionsregarding supervision of defendant's doctors and the circuit court's subsequentfailure to remedy properly plaintiff's Rule 213(g) violation warrants reversalof the jury's verdict and a remand for a new trial. In light of this finding,the remaining objections to Dr. Kahana's testimony need not be addressed here. Further, the parties are admonished strongly that surprise cannot be a componentof a third trial in this case. We next will address issues that are likely torecur upon retrial.

Defendant contends that the circuit court abused its discretion by allowingthe jury to hear evidence that Dr. Bridges could not place an arterial blood lineand denying its subsequent motion for a mistrial. Defendant had moved in limineto bar plaintiff from eliciting testimony regarding Dr. Bridges' failure toinsert an arterial line overnight on May 3 because no expert witness testifiedthat this was a deviation from the standard of care. The record is unclear asto whether the court granted the motion in limine. Nevertheless, defendantspecifically points to admitted testimony from Drs. Kahana, Rodriguez, Bridgesand Charles Bluestone, and the use of an exhibit recording Dr. Bridges'difficulties, as examples of the court's abuse of discretion.

Plaintiff responds that testimony regarding Dr. Bridges' failure to insertan arterial line was elicited to explain why ABG readings were unavailable aselements of proof in her case. Plaintiff contends the ABG readings were relevantto overcome the defense that Cork's condition waxed and waned throughout thenight, which was inconsistent with stenosis. Plaintiff asserts that if she didnot show why no ABG readings were taken overnight, jurors might have concludedthat those readings remained normal or that no ABG tests were needed becauseCork's condition did not warrant them. Plaintiff also elicited this testimonybecause defendant presented evidence that Dr. Bridges made a heroic effort tosave Cork by staying at her bedside all night. Plaintiff notes that Dr. Kahanatestified it was not inappropriate for a resident to not be able to insert anarterial line. In addition, plaintiff argues that most of the contestedtestimony was admitted without objection.

A review of the record shows that, with respect to proffered evidence ofDr. Bridges' inability to insert the arterial line, the circuit court sustaineddefendant's objections. A circuit court's decision to sustain an objection andinstruct the jury to disregard the remark cures the prejudicial impact from theimproper statement. People v. Sims, 167 Ill. 2d 483, 512, 658 N.E.2d 413 (1995);Legroy v. Miller, 272 Ill. App. 3d 925, 933, 651 N.E.2d 617 (1995). Further, therecord does not show that an objection was made when the contested testimony ofDrs. Bluestone and Rodriguez was presented to the jury and, therefore,defendant's argument is waived with respect to this testimony. Illinois StateToll Highway Authority v. Heritage Standard Bank & Trust Co., 163 Ill. 2d 498,502, 645 N.E.2d 896 (1994). In addition, as noted previously, the jury heardtestimony from Dr. Kahana that Dr. Bridges' failure to insert the arterial linedid not breach the standard of care. It was for the jury to assess thecredibility of this testimony, weigh the evidence and resolve any conflicts. Smith, 339 Ill. App. 3d at 75.

Accordingly, the circuit court did not abuse its discretion by allowing Dr.Bridges' testimony or by refusing to grant defendant a mistrial based upon theallowance of this testimony.

Defendant argues that the circuit court abused its discretion by barringevidence regarding the circumstances surrounding decedent's initial injury inMarch 1991. Defendant asserts that the prohibition of this evidence precludedit from presenting a factual finding of the cause of death that was not a resultof any negligence by defendant. Defendant contends the preclusion of thisevidence was exacerbated when the court allowed Dr. Kirschner to testify thatCork's death was caused by anoxic encephalopathy from a tracheal stenosis. Defendant points out that Drs. Kahana and Gilbert Goldman, an expert witness forthe defense, had testified that Cork was injured due to a strangulation. Defendant also maintains that evidence of Cork's cocaine intoxication and hangingis relevant and probative regarding damages.

Plaintiff responds that the circuit court properly exercised its discretionby barring defendant from arguing that Cork's initial traumatic injury was theresult of an attempt to commit suicide by hanging and cocaine intoxication. Plaintiff asserts that the standard of care owed to Cork upon admission to CookCounty was the same regardless of how she sustained the injury for which she wasbeing treated. According to plaintiff, there was no evidence the specificmechanism of the injury had any bearing on the treatment given to Cork. Plaintiff also points out that, although defendant was prevented from showingthat the hanging caused Cork's initial injury, the cause of injury was presentedthrough its expert, Dr. Goldman, who provided a grisly recitation of her physicalappearance and condition when found. Plaintiff argues that evidence of Cork'sinitial injury properly was barred because it was immaterial and highlyprejudicial.

The relevance and admissibility of evidence are committed to the sounddiscretion of the circuit court and its decisions will not be reversed absent aclear abuse of discretion. Leonardi v. Loyola University of Chicago, 168 Ill.2d 83, 92, 658 N.E.2d 450 (1995). Evidence is considered to be relevant when ithas " 'any tendency to make the existence of any fact that is of consequence tothe determination of the action more or less probable than it would be withoutthe evidence.' " Smith, 339 Ill. App. 3d at 73-74, quoting Wojcik v. City ofChicago, 299 Ill. App. 3d 964, 971, 702 N.E.2d 303 (1998).

"In a medical malpractice action, a plaintiff must prove: (1) the properstandard of care by which to measure the defendant's conduct; (2) a negligentbreach of the standard of care; and (3) the resulting injury proximately causedby the defendant's lack of skill or care." Susnis, 317 Ill. App. 3d at 826. Atissue here is whether the exclusion of evidence of Cork's attempted hanging andcocaine intoxication deprived the jury of relevant and material evidence on theissue of proximate causation.

Our supreme court has found with respect to causation that

"evidence of a previous injury is relevant only if it tends tonegate causation or injuries. *** [A] defendant need not be theonly cause to be held liable for an injury; rather, it is sufficientthat the defendant is a cause. [Citation.] Moreover, a defendantis not relieved of liability simply because the only injury sufferedby a plaintiff is an aggravation of a previous injury. [Citation.] Thus, for a prior injury to be relevant to causation, the injurymust make it less likely that the defendant's actions caused any ofthe plaintiff's injuries or an identifiable portion thereof." (Emphasis in original.) Voykin v. Estate of DeBoer, 192 Ill. 2d 49,57-58, 733 N.E.2d 1275 (2000).

Considering the above authority, a significant distinction must be made inthe instant case because at trial, expert witnesses testified as to Cork'sprevious injuries, but they were barred from testifying as to how she sustainedthose injuries. Dr. Hernan Reyes, then the chairman of the department of surgeryat Cook County, testified on behalf of plaintiff that a child found with a strapwrapped tight around her neck would be assessed as having suffered a traumaticinjury that could result in long-term complications and that when Cork first wasadmitted to Cook County on March 11, 1991, she had suffered an anoxic braininjury due to asphyxiation, or the compression of her trachea. In addition, thejury viewed an overhead projection of a nurse's note that indicated Cork's firstadmission was due to a suicide attempt. Based upon the foregoing, a reasonablejury could infer that Cork sustained her injuries from an attempted suicidalhanging. As a result, no error was shown.

Addressing defendant's contention that the circuit court improperlyexcluded evidence of Cork's cocaine intoxication, the argument is waived due todefendant's failure to make an offer of proof. See In re Estate of Romanowski,329 Ill. App. 3d 769, 773, 771 N.E.2d 966 (2002) (Romanowski). "A party claiminghe has not been given the opportunity to prove his case must provide a reviewingcourt with an adequate offer of proof as to what the excluded evidence would havebeen." Romanowski, 329 Ill. App. 3d at 773. An adequate offer of proof apprisesthe circuit court of what the offered evidence is or what the expected testimonywill be, by whom it will be presented and its purpose. Romanowski, 329 Ill. App.3d at 773. The failure to make an offer of proof results in a waiver of reviewof whether the evidence was excluded improperly. Romanowski, 329 Ill. App. 3dat 773.

Here, defendant argues that Cork's cocaine intoxication should have beenpresented to the jury, but it never made an offer of proof in the circuit court. Defendant contends in its reply brief that it was precluded from asking plaintiffwhether she was aware that the toxicology results established the presence ofcocaine in her daughter's system. Although defendant points to depositiontestimony provided by plaintiff stating that she was aware of thesecircumstances, defendant does not show that this evidence was presented to thecourt as an offer of proof. Accordingly, defendant's argument as to thepreclusion of evidence regarding Cork's cocaine intoxication is waived.

On remand, however, the circuit court must consider section 115-5.1 of theCode of Criminal Procedure of 1963 (725 ILCS 5/115-5.1 (West 2002)) (section 115-5.1), which allows a postmortem examination report to be admitted into evidenceas prima facie proof of the cause of death.⁽²⁾

Defendant, citing Northern Trust Co. v. Upjohn Co., 213 Ill. App. 3d 390,572 N.E.2d 1030 (1991) (Northern Trust), asserts that the circuit court abusedits discretion by denying its motion in limine to preclude Dr. Kirschner fromoffering opinions not supported by his pathology findings and outside his areaof medical expertise. Defendant argues that Dr. Kirschner should not have beenallowed to testify that there was a functional stenosis present in this case andthat the defendant doctors had difficulties intubating Cork because of a stenosisthey failed to diagnose. According to defendant, Dr. Kirschner did not have therequisite background to offer such opinions and found no pathology evidence ofa stenosis during his postmortem medical examination. Defendant maintains thatDr. Kirschner's opinion regarding what doctors at Cook County would have seen hadthey performed a bronchoscopy was based upon pure speculation and was outside hisarea of medical expertise. Defendant avers that Dr. Kirschner's speculativeopinions were prejudicial because the defense relied on the findings he actuallyreported in his postmortem examination and death certificate.

Plaintiff responds that the circuit court properly found Dr. Kirschner wasqualified to recite his autopsy findings and to testify about his medicalconclusions based upon those findings and his knowledge of Cork's condition. Plaintiff points out that Dr. Kirschner had testified hundreds of times for theCook County State's Attorney's office and was called as a witness by defendantin the first trial of this case, but defendant now contests his qualificationsto serve as an expert. Plaintiff maintains that Dr. Kirschner did not addresswhether defendant deviated from the standard of care; rather, he testified as towhat he found and Cork's condition prior to her death.

A circuit court's decision to grant or deny a motion in limine will not bedisturbed absent an abuse of discretion. Lewis v. Haavig, 337 Ill. App. 3d 1081,1087, 788 N.E.2d 758 (2003).

In the present case, Dr. Kirschner did not testify as to whether defendantdeviated from the standard of care, which is a prima facie element that must beproven to establish negligence in a medical malpractice action. Northern Trust,213 Ill. App. 3d at 406. Instead, Dr. Kirschner testified as to his findingsconcerning Cork's cause of death based upon his pathology examination andautopsy, which are areas of medicine within his own knowledge and observation. See Jones v. O'Young, 154 Ill. 2d 39, 43, 607 N.E.2d 224 (1992). Further,defense counsel cross-examined Dr. Kirschner with respect to his lack ofexperience in performing bronchoscopies and diagnosing tracheal stenoses. It wasfor the jury to assess the credibility of Dr. Kirschner's testimony, weigh theevidence and resolve any conflicts. Smith, 339 Ill. App. 3d at 75.

In addition, Dr. Kirschner testified before the jury that his opinionsremained the same as when he testified in the first trial on behalf of defendant. Therefore, defendant has no basis to contest Dr. Kirschner's qualifications asplaintiff's medical expert on retrial. The circuit court did not abuse itsdiscretion by denying defendant's motion in limine to preclude Dr. Kirschner'stestimony.

 

Defendant argues that the circuit court abused its discretion by refusingto allow a jury instruction on sole proximate cause and by allowing the jury toaward damages based on Cork's habits of industry. Defendant notes its theory attrial was that Cork's injury was caused solely as a result of the hanging andcomplications that resulted from the hanging, namely, pneumonia, empyema, ARDSand bronchospasm. Defendant contends it supported its sole proximate causetheory with testimony from Drs. Kahana, Goldman, Rodriguez and Bridges, each ofwhom testified as to other possible causes contributing to Cork's death. According to defendant, by refusing this instruction, the court, in effect,decided for the jury that Cork did not die from a lower airway problem such aspneumonia, ARDS or empyema. Defendant further avers that the court's exclusionof evidence of Cork's cocaine intoxication and suicide attempt was exacerbatedwhen it allowed plaintiff a jury instruction that included an award to plaintiffbased on Cork's habits of industry.

Plaintiff responds that the circuit court did not abuse its discretion bygiving the jury the short form of Illinois Pattern Jury Instructions, Civil, No.12.05 (1995) (IPI Civil (1995) No. 12.05) or by including habits of industry asa factor to be weighed when determining damages.

The determination of whether to give a specific jury instruction is withinthe circuit court's discretion and that decision will not be disturbed absent anabuse of discretion. Trimble v. Olympic Tavern, Inc., 239 Ill. App. 3d 393, 401,606 N.E.2d 1276 (1993). The standard for determining whether such abuse occurredis whether the instructions given fairly stated the law without having prejudiceda party and depriving him of a fair trial. Dillon v. Evanston Hospital, 199 Ill.2d 483, 505, 771 N.E.2d 357 (2002). To justify an instruction, some evidence inthe record must support the theory. Use of the long form of IPI Civil (1995) No.12.05 is only appropriate "where there is evidence tending to show that the soleproximate cause of the occurrence was something other than the conduct of thedefendant." See IPI Civil (1995) No. 12.05, Notes On Use, at 62.

Here, defendant presented evidence of multifactorial causes of death,including pneumonia, ARDS, empyema and bronchospasm, rather than a sole proximatecause. This is distinguishable from Ellig v. Delnor Community Hospital, 237Ill. App. 3d 396, 407-08, 603 N.E.2d 1203 (1992), a case relied upon bydefendant. Defendant claims in its reply brief that the circuit court's basisfor denying the long form instruction, the presence of multiple causes, has nosupport in the case law, yet defendant provides no authority that supports itsposition. All the cases upon which the instant defendant relies involveddefendants who tendered jury instructions based on a sole proximate cause, notmultiple factors. In addition, witnesses did not address how the variouspreexisting conditions suffered by Cork would constitute a sole proximate causeif the verdict were based on a failed intubation. Based on the foregoing, thecircuit court did not abuse its discretion by giving the jury the short form ofIPI Civil (1995) No. 12.05.

With respect to jury instructions on Cork's habits of industry, defendanthas waived this argument because it is unsupported by argument or pertinent legalauthority in violation of Supreme Court Rule 341(e)(6) (188 Ill. 2d R.341(e)(6)).

In light of our decision to reverse and remand this case for a new trial,we need not address defendant's final contention that the circuit court erred bydenying its motion for a new trial based upon the conduct of plaintiff's counsel.

For the reasons stated above, the judgment of the circuit court of CookCounty is reversed and the cause is remanded for a new trial consistent with thisopinion.

Reversed and remanded.

HARTMAN and THEIS, JJ., concur.

1. The newly amended version of Rule 213 maintains strictdisclosure requirements but states in paragraph (g), "a cross-examining party can elicit information, including opinions, fromthe witness" without making disclosures as required underparagraph (f). Official Reports Advance Sheet No. 8 (April 17,2002), R. 213(g), eff. July 1, 2002. The current CommitteeComments state, "[p]arties are to be allowed a full and completecross-examination of any witness and may elicit additionalundisclosed opinions in the course of cross-examination."Official Reports Advance Sheet No. 8 (April 17, 2002), R. 213(g),Committee Comments, eff. July 1, 2002. Paragraph (k) provides,however, that Rule 213 "is to be liberally construed to dosubstantial justice between or among the parties." OfficialReports Advance Sheet No. 8 (April 17, 2002), R. 213(k), eff.July 1, 2002. The Committee Comments under paragraph (k) statethat Rule 213 "is intended to be a shield to prevent unfairsurprise but not a sword to prevent the admission of relevantevidence on the basis of technicalities." Official ReportsAdvance Sheet No. 8 (April 17, 2002), R. 213(k), CommitteeComments eff. July 1, 2002.

2. Section 115-5.1 states that "[a] duly certified coroner'sprotocol or autopsy report, or both, complying with therequirements of this Section may be duly admitted into evidenceas an exception to the hearsay rule as prima facie proof of thecause of death of the person to whom it relates." 725 ILCS5/115-5.1 (West 2002). Records of the coroner's medical exam maybe admitted as competent evidence in either civil or criminalactions. 725 ILCS 5/115-5.1 (West 2002).