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No. 2--01--1307

JUSTICE GROMETER delivered the opinion of the court:

Defendants Michael Lomont and Associated PathologyConsultants-Gottlieb, S.C., appeal a judgment of the circuit courtof Du Page County entered in favor of plaintiffs, Laura and RonaldLawler. Following a jury trial, Laura was awarded $3,800,000 andRonald was awarded $50,000. On appeal defendants seek a new trialor, in the alternative, a remittitur. For the reasons that follow,we affirm.

The instant appeal arises out of a medical negligence action. Plaintiffs alleged that defendants had failed to properly readLaura's Pap smears. As a result, Laura contracted cancer and wassubsequently forced to undergo a hysterectomy. Defendants concededliability, and a jury trial was held solely on the issue ofdamages. At the time of the trial, only Dr. Lomont and AssociatedPathology Consultants-Gottlieb, S.C., remained as defendants. Thejury awarded Laura $2,500,000 for pain and suffering, $1,200,000for the loss of a normal life, and $100,000 for disfigurement. Italso awarded Ronald $50,000 on his loss-of-consortium claim. Relevant facts will be discussed as they pertain to the issues thatfollow.

I. OPINION

Defendants raise six issues in this appeal. First, theycontend plaintiffs violated Supreme Court Rule 213 (177 Ill. 2d R.213) by failing to properly disclose an opinion of one of theirexperts. Second, they assert that the trial court erred by failingto instruct the jury regarding the burden of proof. Third, theyargue that the trial court improperly permitted plaintiffs toexercise a peremptory challenge to prevent an elderly juror frombeing empaneled. Fourth, they complain that plaintiffs improperlyindoctrinated the jury during voir dire. Fifth, they allege errorbecause the trial court permitted an expert witness to testify whenthe expert witness could not fully identify how he was to becompensated for his testimony. Sixth, they claim that they areentitled to a remittitur because Laura failed to prove damages forthe loss of a normal life. We will address these issues seriatim.

A. Violation of Supreme Court Rule 213

Defendants first contend that the trial court erred inpermitting Dr. Cook, one of plaintiffs' expert witnesses, to givean opinion that, defendants claim, was not disclosed as required bySupreme Court Rule 213 (177 Ill. 2d R. 213). Supreme Court Rule213 requires parties to disclose "the conclusions and opinions of[an] opinion witness and the bases therefor." 177 Ill. 2d R.213(g). It is permissible for a witness to elaborate on a properlydisclosed opinion. Becht v. Palac, 317 Ill. App. 3d 1026, 1037(2000). Furthermore, that trial testimony is more precise than adisclosed opinion does not necessarily result in a violation. Prairie v. Snow Valley Health Resources, Inc., 324 Ill. App. 3d568, 576 (2001). Whether an opinion has been adequately disclosedis a matter that lies within the discretion of the trial court. Department of Transportation v. Crull, 294 Ill. App. 3d 531, 537(1998). We will overturn a trial court's exercise of discretiononly where no reasonable person could agree with the position thatit takes. Nasrallah v. Davilla, 326 Ill. App. 3d 1036, 1042(2001).

Through a videotaped evidence deposition, Dr. Ronald Potkultestified regarding the Delgado scoring system. The Delgado systemis used to predict the chances of the recurrence of cancer invictims such as Laura. Using this system, Dr. Potkul testifiedthat Laura had an 85% chance of surviving five years. At trial,Dr. Cook criticized the Delgado system because it fails to takeinto account vascular and lymphatic invasion. Defendants contendthat this criticism was not disclosed. We disagree.

In response to defendants' Rules 213(f) and (g) (177 Ill. 2dRs. 213(f),(g)) interrogatories, plaintiffs stated that it wasanticipated that Dr. Cook would testify to the following:

"[A]ll women who suffer from invasive squamous cell cancer ofthe cervix face risk of cancer recurrence. Frequently thesecancers will occur within two years of initial diagnosis, andthat [sic] therefore the lack of recurrence in Laura Lawlercan be considered a good sign. However, such cancers canrecur or metastasize subsequent to two years or even fiveyears. This is particularly true in the case of Laura Lawlerbecause of the size of the lesion and the fact that there waslymphatic and vascular invasion. Although methods and systemsexist that purport to predict chances of recurrence, thesemethods and systems are not statistically reliable and arelimited to five-year survival rates."

Defendants claim that, although they anticipated that Dr. Cookwould criticize the Delgado system based on the fact that it waslimited to a five-year period, they could not have anticipated thathe would criticize the system for failing to take into accountvascular and lymphatic invasion.

Defendants' position is untenable. Plaintiffs' Rule 213disclosure clearly states that cancers such as Laura experiencedcan recur beyond five years. It goes on to elaborate that this isparticularly true in her case "because of the size of the lesionand the fact that there was lymphatic and vascular invasion." Thepassage concludes that statistical systems are not reliable and arelimited to five-year periods. These concepts appear in consecutivesentences; the nexus between them is clear. A very reasonablereading of this passage is that statistical systems, like theDelgado system, are unreliable in cases, like Laura's, where thereis lymphatic and vascular invasion. A reasonable person couldagree with this very reasonable interpretation. Since a trialcourt abuses its discretion only where no reasonable person couldagree with the position it takes (Nasrallah, 326 Ill. App. 3d at1042), no abuse of discretion occurred here. Since we concludethat the trial court did not err in allowing this testimony, weneed not address defendants' contention that the testimony wasprejudicial to them.

B. Instructing the Jury on the Burden of Proof

Defendants next argue that the trial court erred in failing toinstruct the jury as to the burden of proof. The trial court useda pattern jury instruction stating the following: "The defendantshave admitted liability for any injury which may have proximatelyresulted from the occurrence. You need only decide what injuriesto the plaintiffs resulted from this occurrence and fairlycompensate the plaintiffs for those injuries." See IllinoisPattern Jury Instructions, Civil, No. 23.01 (2000). Defendantsastutely observe that this instruction does not state that theplaintiff bears the burden of proving what is at issue in thetrial. The trial court concluded that it was proper to give theinstruction without a burden of proof instruction and that, in anyevent, defendants waived the issue by failing to tender what theydeemed to be a correct instruction prior to the time the jury wasinstructed. We apply the abuse-of-discretion standard to allegederrors in jury instructions. In re Timothy H., 301 Ill. App. 3d1008, 1015 (1998).

Defendants did not, in fact, tender a proposed instructionuntil after the parties had completed closing arguments and thejury had retired to deliberate. It has been stated that a partywaives any objection to a jury instruction by failing to object toit at the instruction conference. Branum v. Slezak ConstructionCo., 289 Ill. App. 3d 948, 956-57 (1997). However, we need notdecide whether tendering an instruction at this belated timeconstitutes waiver, for we conclude that the instruction tenderedby defendants was erroneous.

On appeal, defendants argue that the trial court should haveinstructed the jury that plaintiffs bore the burden of proving"what injuries to the plaintiffs resulted from this occurrence." At trial, however, they proposed a somewhat different instruction. Defense counsel requested that the jury be given the followinginstruction: "The plaintiff has the burden of proving the followingproposition, that the plaintiffs were injured." These propositionsare not the same. At trial, defendant requested an instructionstating plaintiffs were required to prove that they were injured;here, they argue for an instruction stating plaintiffs wererequired to prove in what manner they were injured. That thesepropositions are not identical is easy to see. Regarding theformer, if the jury concluded plaintiffs failed to sustain theirburden of proof, an award of zero dollars would be appropriate. Inthe latter case, plaintiffs would be entitled to something, sincethis instruction reflects the fact that plaintiffs were injured.

Our review is limited to the instruction proposed at trial. In order to preserve an objection to the failure to give a juryinstruction, the complaining party "must provide the reviewingcourt with the content of the instruction conference establishingthat the appellant there raised the argument that he advances onappeal." Brown v. Decatur Memorial Hospital, 83 Ill. 2d 344, 350(1980). Further, "[a] party is not permitted to appeal hisoverruled objection to an erroneous jury instruction when he failsto tender an alternate one which he contends on appeal, but failedto argue in the trial court, presents the proper statement of thelaw." Auton v. Logan Landfill, Inc., 105 Ill. 2d 537, 549 (1984). Thus, a party must have presented to the trial court theinstruction argued for on appeal. Accordingly, our review islimited to the instruction presented to the trial court, and anyreliance on the other instruction is waived.

That plaintiffs had the burden of proving that they wereinjured is an incorrect statement of law. Defendants admittedliability. The instant action involved medical negligence. Theelements of a medical negligence claim are "(1) the standard ofcare in the medical community by which the physician's treatmentwas measured; (2) that the physician deviated from the standard ofcare; and (3) that a resulting injury was proximately caused by thedeviation from the standard of care." Neade v. Portes, 193 Ill. 2d433, 443-44 (2000). Thus, by admitting liability, defendantsadmitted that an injury occurred. While it is true that they didnot admit the nature and extent of the injuries plaintiffssuffered, their proposed instruction did not reflect the fact thatthey had not admitted the types of injuries suffered by plaintiffs. Rather, it raised the question of whether plaintiffs were injuredat all. Hence, the instruction was not an accurate statement ofthe law as to what plaintiffs were required to prove, and the trialcourt did not abuse its discretion by declining to give it.

C. Batson, Age Discrimination, and Voir Dire

Defendants' third contention is that the trial court erred inallowing plaintiffs to strike a potential juror because of his age. During voir dire, plaintiffs exercised a peremptory challenge toremove a 77-year-old man from the jury. Defendants objected, andthe trial court required plaintiffs to articulate anondiscriminatory reason for doing so. Initially, we note thatimmediately requiring plaintiffs to explain their decision wasimproper. Under Batson, the party opposing the challenge mustfirst make out a prima facie case of purposeful discriminationbefore the burden shifts to the party exercising the peremptorychallenge to articulate a nondiscriminatory explanation for thestrike. Batson v. Kentucky, 476 U.S. 79, 97, 90 L. Ed. 2d 69, 88,106 S. Ct. 1712, 1723 (1986). However, where the party exercisingthe peremptory challenge offers an explanation for the strike, thequestion of whether the opposing party established a prima faciecase becomes moot, and the inquiry turns solely on whether thetrial court's ruling was proper. People v. Smith, 258 Ill. App. 3d1003, 1024 (1994).

Before turning to the issue of whether the trial courtproperly determined that plaintiffs' exercise of this peremptorychallenge was done without an intent to discriminate on the basisof age, we are faced with a threshold question. We must firstdecide whether Batson and its progeny forbid age discriminationduring voir dire. This question is one of law, which we willreview de novo. Schmidt v. Ameritech Illinois, 329 Ill. App. 3d1020, 1027 (2002).

In Batson, the Supreme Court set forth a procedure to enforcethe equal protection clause's prohibition against the exercise ofperemptory challenges solely on the basis of the race of apotential juror. Batson, 476 U.S. at 89, 90 L. Ed. 2d at 83, 106S. Ct. at 1719. The prohibition against the discriminatory use ofperemptory challenges was extended to gender-based strikes inJ.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129, 128 L. Ed. 2d89, 97, 114 S.Ct. 1419, 1421 (1994). In J.E.B., the court alsolimited the reach of Batson and its progeny, holding, "Parties mayalso exercise their peremptory challenges to remove from the venireany group or class of individuals normally subject to 'rationalbasis' review. [Citations.]" J.E.B., 511 U.S. at 143, 128 L. Ed.2d at 106, 114 S. Ct. at 1429.

Thus, Batson applies in the present case only if the agedconstitute a protected class, subject to some form of heightenedscrutiny, for the purpose of the equal protection clause (U.S.Const., amend. XIV). The Supreme Court squarely confronted thisquestion in Massachusetts Board of Retirement v. Murgia, 427 U.S.307, 49 L. Ed. 2d 520, 96 S. Ct. 2562 (1976), where it was calledupon to determine the constitutionality of a mandatory retirementlaw. In that case, the court observed:

"While the treatment of the aged in this Nation has not beenwholly free of discrimination, such persons, unlike, say,those who have been discriminated against on the basis of raceor national origin, have not experienced a 'history ofpurposeful unequal treatment' or been subject to uniquedisabilities on the basis of stereotyped characteristics nottruly indicative of their abilities." Massachusetts Board ofRetirement, 427 U.S. at 313, 49 L. Ed. 2d at 525, 96 S. Ct. at2567.

The Court went on to note that "even old age does not define a'discrete and insular' group [citation] in need of 'extraordinaryprotection from the majoritarian political process.' " Massachusetts Board of Retirement, 427 U.S. at 313, 49 L. Ed. 2d at525, 96 S. Ct. at 2567. The Court then analyzed the mandatoryretirement law using the rational-basis standard. MassachusettsBoard of Retirement, 427 U.S. at 314-17, 49 L. Ed. 2d at 525-27, 96S. Ct. at 2567-69; see also Gregory v. Ashcroft, 501 U.S. 452, 470,115 L. Ed. 2d 410, 430, 111 S. Ct. 2395, 2406 (1991).

In Illinois, we apply the same standard for assessing allegedequal protection violations under both the Illinois and UnitedStates Constitutions. In re Petition for Detachment of Land fromMorrison Community Hospital District, 318 Ill. App. 3d 922, 928(2000). Accordingly, our supreme court has held that age is not aprotected characteristic. People v. M.A., 124 Ill. 2d 135, 140(1988). In People v. Reed, 148 Ill. 2d 1, 8 (1992), the court,citing Massachusetts Board of Retirement, held, "It is clear thatthe rational basis standard applies to classifications based onage." Thus, under neither state nor federal law are the aged aclass to which heightened scrutiny applies. Given the J.E.B.holding that a party may strike "any group or class of individualsnormally subject to 'rational basis' review" (J.E.B., 511 U.S. at143, 128 L. Ed. 2d at 106, 114 S. Ct. at 1429), it is apparent thatBatson does not prohibit a party from exercising a peremptorychallenge based upon the age of a potential juror. A number ofother jurisdictions that have considered this question have come toa like result. See Weber v. Strippit, Inc., 186 F.3d 907, 911 (8thCir. 1999); United States v. Maxwell, 160 F.3d 1071, 1075-76 (6thCir. 1998); United States v. Grimmond, 137 F.3d 823, 834 (4th Cir.1998); United States v. Jackson, 983 F.2d 757, 762 (7th Cir. 1993);Price v. State, 725 N.E.2d 82, 87 (Ind. 2000); State v. Everett,472 N.W.2d 864, 869 (Minn. 1991).

In fact, our brethren in the Third District addressed thesubject of age discrimination in jury selection in People v.McGaughy, 313 Ill. App. 3d 656 (2000). In that case, when calledupon to provide a race-neutral explanation for a peremptorychallenge used to remove an African-American venire member from thejury, the prosecutor stated that he was concerned about empanelingyoung jurors. Noting that age is not a suspect classificationsubject to heightened scrutiny, the Third District declined toextend Batson to age-based peremptory challenges. McGaughy, 313Ill. App. 3d at 658. Other Illinois cases have found age to be anacceptable race-neutral explanation for striking a juror. SeePeople v. Mack, 128 Ill. 2d 231, 242-43 (1989); People v. Hemphill,230 Ill. App. 3d 453, 467 (1992).

Defendants attempt to distinguish these Illinois cases,pointing out that they involve peremptory challenges based onyouth, while the present case involves a challenge based onadvanced age. We find defendants' attempt unpersuasive; the equalprotection clause does not function in this manner. J.E.B. forbidsremoving a prospective juror based on gender, regardless of whetherthe individual is male or female. J.E.B., 511 U.S. at 146, 128 L.Ed. 2d at 107, 114 S. Ct. at 1430. Similarly, a Batson challengeto a strike based on the race of a venire person may be raisedregardless of the race of the individual. People v. Rivera, 307Ill. App. 3d 821, 829 (1999) (observing that "the race-basedexclusion of jurors of any race, including whites, offends theconstitutional protections afforded by Batson and its progeny"). It would thus be anomalous to conclude that the equal protectionclause protects those of advanced age while leaving youthunprotected.

Moreover, defendants' attempt to distinguish the elderly fromthe young highlights why age is not a protected characteristic. Defendants assert that, unlike race or gender, "age is not an'either-or' proposition." Defendants are correct. Old age "marksa stage that each of us will reach if we live out our normal span." Massachusetts Board of Retirement, 427 U.S. at 313-14, 49 L. Ed. 2dat 525, 96 S. Ct. at 2567. In other words, age is not an immutablecharacteristic. Generally, protected status has been applied toclassifications based on such characteristics. See Johnson v.Robison, 415 U.S. 361, 375 n.14, 39 L. Ed. 2d 389, 402 n.14, 94 S.Ct. 1160, 1169 n.14 (1974) ("With respect to appellee's secondcontention, we find the traditional indicia of suspectednesslacking in this case. The class does not possess an 'immutablecharacteristic determined solely by the accident of birth.'[Citation]"). Age, the Supreme Court held, is not "sufficientlyakin to those classifications that we have found suspect to callfor strict judicial scrutiny." Massachusetts Board of Retirement,427 U.S. at 314, 49 L. Ed. 2d at 525, 96 S. Ct. at 2567.

Therefore, we conclude that Batson and its progeny do notforbid the exercise of a peremptory challenge based upon the age ofa prospective juror. In the course of making this argument,defendants call our attention to some additional case law that wefind unpersuasive. Defendants point to a number of cases that haveextended Batson to strikes based upon a potential juror's religion. See, e.g., United States v. Somerstein, 959 F. Supp. 592, 595(1997); State v. Purcell, 199 Ariz. 319, 326-27, 18 P.3d 113, 120-21 (2001). Religion, however, is a classification arguablyentitled to some form of heightened scrutiny. See Davis v.Minnesota, 511 U.S. 1115, 1115, 128 L. Ed. 2d 679, 679, 114 S. Ct.2120, 2121 (1994) (Thomas, J., dissenting from denial ofcertiorari); Purcell, 199 Ariz. at 326-27, 18 P.3d at 120-21. People v. Garcia, 77 Cal. App. 4th 1269, 1275, 92 Cal. Rptr. 2d339, 343 (2000), which extended Batson-like protections to strikesbased on sexual orientation, was based on state law. In People v.Green, 148 Misc. 2d 666, 668-69, 561 N.Y.S.2d 130, 132-33 (1990),a New York court, acknowledging statutory protections affordeddisabled persons, concluded that a prosecutor's removal of ahearing-impaired person lacked a rational basis. The Green courtobserved that the challenge was based solely on the potentialjuror's disability rather than on any doubt as to the juror'sability to communicate. In the instant case, plaintiffs did notmerely cite the potential juror's age; they articulated doubtsregarding his ability to be an effective juror. Moreover, wequestion the soundness of the Green court's analysis, the logicalextension of which would subject virtually every strike toscrutiny, as any classification warrants at least rational-basisreview.

We, like the Sixth Circuit, "recognize the import of thevenerable right to exercise peremptory challenges." Maxwell, 160F.3d at 1076. Further, we agree with that court's observation that"[t]he practice of allowing peremptory challenges may be overriddenonly for the strongest constitutional reasons." Maxwell, 160 F.3dat 1076. A classification that is not subject to some form ofheightened scrutiny provides no such strong reason. See J.E.B.,511 U.S. at 143, 128 L. Ed. 2d at 106, 114 S.Ct. at 1429. Accordingly, we find no basis for disturbing the judgment of thecourt below.

D. Indoctrinating the Jury

Defendants next assert that plaintiffs' counsel improperlyindoctrinated the jury during voir dire. Specifically, defendantscomplain that plaintiffs asked Margaret Socco the followingquestion:

"Well, do you have any disagreement with our system of lawthat would allow us to bring a case like this against a doctorwho has admitted neglect."

Defendants objected, stating that they had not admitted "neglect." On appeal, defendants point out that, while it is true that theyadmitted to liability, "neglect" has a pejorative connotation that"negligence" lacks. According to defendants, "neglect" encompassesintentional, as well as unintentional, wrongdoing. See Black's LawDictionary 1032 (6th ed. 1990). Defendants have waived thisargument by failing to interpose a timely objection.

Prior to the questioning of Ms. Socco, plaintiffs' counselused the term "neglect" in questioning at least two other potentialjurors. Defendants did not object to these questions. It is acommon proposition that a party waives any claim to the admissionof evidence if he fails to object whenever similar evidence isoffered. Gillespie v. Chrysler Motors Corp., 135 Ill. 2d 363, 374(1990) ("Even if a party objects to certain evidence, if he failsto object to similar evidence that the trial court admitted withoutobjection, he waives any claim that the evidence to which he didobject was admitted erroneously"). The First District has recentlyapplied this rule to the failure to interpose timely objections toquestions posed during voir dire. Rub v. Consolidated Rail Corp.,331 Ill. App. 3d 692, 705 (2002). We agree with the FirstDistrict. Where, as here, a party objects to a question but, atother times, fails to object to substantially similar questions,the objection is insufficient to preserve the issue for review.

E. Cross-examination and Financial Bias

Defendants also argue that the trial court erred in permittingone of plaintiffs' experts to testify without identifying his rateof compensation. During cross-examination, Dr. Cook acknowledgedthat he received $500 per hour for reviewing materials and beingdeposed. However, when asked what he was charging for hisappearance at trial, Dr. Cook replied that the figure had not yetbeen calculated. He explained that he bases his fees fortestifying on the amount earned from other sources during the weekin which he testifies. The doctor did state that his fees wouldnot exceed $5,000 for the day. Defendants now complain that,because Dr. Cook did not provide a more detailed answer, the jurywas deprived of a significant piece of information bearing upon hiscredibility. Thus, defendants assert, he should not have beenallowed to testify. The decision to admit expert testimony lieswithin the sound discretion of the trial court, and its decisionwill not be disturbed absent an abuse of that discretion. Peoplev. Thill, 297 Ill. App. 3d 7, 11 (1998).

We doubt that the absent information defendants seek wouldhave even been relevant on the issue of bias. Clearly, for awitness to be biased by a fact, the witness must be aware of thefact. See People v. Ware, 96 Ill. App. 3d 923, 927 (1981) ("Anytestimony concerning whether [the witness] was aware of herpossible eligibility [to file a claim under the Illinois CrimeVictim's Compensation Act (Ill. Rev. Stat. 1977, ch. 70, par. 71 etseq.)] would have been speculative and uncertain evidence of biasand was therefore properly excluded by the trial court"). It isapparent from Dr. Cook's testimony that he was not aware of theprecise amount that he would be compensated for his testimony. Hewas aware, however, that he could make up to $5,000. Since thisfact was the one Dr. Cook was aware of, it is this fact that hadthe potential for causing him to be biased. Because the jury wasmade aware of this fact, defendants were able to fully expose thispotential source of bias. More detailed information would haveserved no purpose; Dr. Cook was not aware of it and could not havebeen biased by it. Accordingly, we find no abuse of discretionhere.

F. Remittitur

Defendants' final contention is that they are entitled to aremittitur because plaintiffs failed to prove damages for the lossof a normal life. Specifically, defendants assert that plaintiffsfailed to prove that they lost the ability to conceive children. The jury awarded plaintiffs $1,200,000 for the loss of a normallife. Generally, the amount of a verdict is a matter lying withinthe discretion of the jury. Guerrero v. City of Chicago, 117 Ill.App. 3d 348, 352 (1983). A remittitur should be granted only if anaward is beyond the " ' "flexible range of what is reasonablysupported by the facts." ' " Guerrero, 117 Ill. App. 3d at 352,quoting Brandel v. Yellow Cab Co., 98 Ill. App. 3d 88, 100 (1981),quoting House v. Stocker, 34 Ill. App. 3d 740, 746 (1975).

In support of this argument, defendants point to what theyterm plaintiffs' "diminished fertility." Defendants note thatplaintiffs "had undergone fertility treatments for years beforemanaging to conceive their first child." It is thus undisputedthat plaintiffs, with the aid of fertility treatments, were able toproduce one child.

We find defendants' argument completely unpersuasive. Quitesimply, plaintiffs had previously managed, albeit with the aid offertility treatments, to conceive once. It is further undisputedthat plaintiffs, following the hysterectomy, had no chance ofconceiving, with or without fertility treatments. Thus, anevidentiary basis existed from which the jury could conclude thatplaintiffs lost the ability to conceive. Because a sufficientevidentiary basis supports the jury's award of damages, aremittitur would not be appropriate in the instant case.

II. CONCLUSION

For the foregoing reasons, the decision of the circuit courtof Du Page County is affirmed.

Affirmed.

O'MALLEY and CALLUM, JJ., concur.