Prairie v. Snow Valley Health Resources, Inc.

Case Date: 09/07/2001
Court: 2nd District Appellate
Docket No: 2-00-0924, 0922 cons. Re

September 07, 2001

Nos. 2--00--0924 & 2--00--0922 cons.


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

_______________________________________________________________________________________________

ROBIN PRAIRIE, Special Administratrix) Appeal from theCircuit Court of
of the Estate of Anna Prairie,)Du Page County.
Deceased,)
)
Plaintiff-Appellee,)
)
v.)No. 97--L--659
)
SNOW VALLEY HEALTH RESOURCES,INC.,)
AND RAKEESH MARWAHA,)Honorable
)James W. Jerz,
Defendants-Appellants.)Judge, Presiding.

_______________________________________________________________________________________________

JUSTICE GROMETER delivered the opinion of the court:

Defendants, Snow Valley Health Resources, Inc. (Snow Valley), and RakeeshMarwaha, M.D., appeal a decision of the circuit court of Du Page County grantingplaintiff, Robin A. Prairie, a new trial. Following a jury trial, a verdict wasreturned in favor of both defendants. Plaintiff filed a posttrial motion seeking,among other things, a new trial. The trial court granted that request, relyingon three errors it found to have occurred in the course of the trial. Primarily,the trial court relied upon its finding that defendant Marwaha's trial testimonydiverged from what had been disclosed, a situation that violated Supreme CourtRule 213 (177 Ill. 2d R. 213). The trial court also determined that twoadditional errors contributed to the unfairness of the trial. First, it held thatit had erred by allowing a medical textbook to be admitted as substantiveevidence. Second, it concluded that it had erroneously allowed plaintiff to beimpeached through the use of what it determined to be either a misdemeanorconviction or an ordinance violation. We granted defendants leave to appealpursuant to Supreme Court Rule 306 (166 Ill. 2d R. 306) and now affirm.

Defendant Snow Valley operates a residential facility where it provideslong-term care for its patients. Plaintiff's decedent was a 103-year-old womanand resident of Snow Valley. Plaintiff's decedent died on June 12, 1994, whilea resident there. Defendant Marwaha is a physician who provided care to thedecedent during the period in which she resided at Snow Valley. Plaintiff filedthe current action, alleging several breaches by both defendants. Pertinent tothis appeal is plaintiff's allegation that defendants failed to adequately monitorthe decedent's vital signs and that this omission led to her death.

Because this appeal comes to us following the grant of a new trial, we willdisturb the decision of the trial court only if "it is affirmatively shown thatit clearly abused its discretion." Maple v. Gustafson, 151 Ill. 2d 445, 455(1992). A trial court abuses its discretion when its decision is arbitrary orexceeds the bounds of reason. Schmidt v. Joseph, 315 Ill. App. 3d 77, 81 (2000). Only where no reasonable person would agree with the position taken by the trialcourt does an abuse of discretion occur. Schwartz v. Cortelloni, 177 Ill. 2d 166,177 (1997). With this standard of review in mind, we now turn to the merits ofthis appeal.

The primary basis for the trial court's decision to grant a new trial wasits determination that Marwaha's testimony deviated from that disclosed pursuantto Supreme Court Rule 213. See 177 Ill. 2d R. 213. Defendants raise fourdistinct arguments as to why this ruling was an abuse of discretion. First,defendants assert that plaintiff waived any claim of error by failing to interposea timely objection. Second, defendants contend that Marwaha's testimony wasproperly disclosed. Third, defendant Snow Valley argues that the testimony inquestion was not opinion testimony and therefore not within the scope of the rule. Finally, defendants postulate that plaintiff could have and should have impeachedMarwaha if she felt that his testimony diverged from his previously disclosedtestimony.

The testimony at issue here concerns the steps that should have been takento monitor plaintiff's decedent's vital signs in the days before her death. Inhis deposition, Marwaha was asked whether "[decedent's] vitals should be taken oneach shift," and he replied, "In each shift, right." He also referred to astanding order regarding the decedent, part of which he stated was to "[m]onitorher vital signs." When asked how many times a day they should be monitored, hereplied three.

At trial, Marwaha first testified when called as an adverse witness byplaintiff. When asked by plaintiff's counsel whether there was a standing orderthat the nursing staff at Snow Valley take the decedent's vital signs three timesdaily, he stated "I think you are confusing the standing order with the patientassessment." When asked whether the decedent was to be monitored and have hervitals taken every shift, Marwaha replied that "[s]he should be assessed everyshift, yes." Again, when asked whether her vital signs should have been takenduring each shift, he stated that "[s]he should be assessed every shift." Duringcross-examination, Marwaha was asked to describe an assessment. He gave thefollowing reply:

"An assessment of the patient is just basically you walk into apatient's room and see whether--all her mental status, is she awake or isshe sleeping. So--then they look at the--make sure that she has eaten goodtoday or slept well, she had a bowel movement or she's urinating okay andshe's moving all her limbs, she's breathing okay. Check her color, feel herand see what her temperature is.

This is called a quick assessment of the patient, which all nurses aresupposed to do. This takes only 30 to--30 seconds to a minute. And they'resupposed to do it on everybody every shift."

Plaintiff did not object to this testimony or attempt to impeach Marwaha with thestatement he made during his deposition.

Later, during his own case, Marwaha first stated that decedent was"monitored pretty good." He then testified that there was no written standardstating a patient's vital signs had to be monitored three times each day. Hisattorney next asked whether patients were to be "assessed" three times per day. At this point, plaintiff interposed a Rule 213 objection, arguing that theassessments that Marwaha was speaking about were different from the monitoring ofvital signs that he had testified about in his discovery deposition. The trialcourt overruled this objection. Marwaha then stated that he wanted the decedentmonitored and assessed three times each day. Thereafter, during cross-examination, the following colloquy ensued:

"Q. So, Doctor, you expected the nursing home to take her vital signsthree times daily at a minimum, is that correct?

A. I expected them to do assessment [sic] three times a day. Vitalsigns is [sic] a little bit, part of the total assessment of the patient.

Q. But you would agree with Dr. Fintel and Dr. Breall, that threetimes daily on the vitals was what should be done, correct?

A. The patient should be assessed at least three times a day, yes.

Q. The vital signs should be taken three times a day, isn't thatcorrect?

A Vitals is [sic] a part of the assessment. It should be done threetimes a day."

In ruling on plaintiff's posttrial motion, the trial court found Marwaha'stestimony to be "markedly different and not consistent" with his depositiontestimony.

In the course of ruling, the trial court also noted the testimony of Dr. IdaAndrowich, an opinion witness called by Snow Valley. Androwich defined an"assessment" as a skilled observation where one takes whatever information isavailable and forms an opinion about something. She opined that the decedent'sactivities in the days before her death indicated her vitals were normal and thatthe staff of Snow Valley made appropriate assessments of the decedent during herstay at the facility. She also stated that an assessment does not require thetaking of vital signs and that doing so is but one form of an assessment. Androwich believed that the standard of care did not require the decedent's vitalsigns to be taken on June 12, 1994, which was the day of her death.

We agree with defendants that plaintiff did not interpose a timely objectionto Marwaha's testimony. The complained-of testimony was first introduced into thetrial during plaintiff's case in chief, when Marwaha was called as an adversewitness. Later, during defendants' case, this testimony was again introduced. Plaintiff did not object until the second time this testimony was presented. Suchan objection is not timely. See Gillespie v. Chrysler Motors Corp., 135 Ill. 2d363, 374 (1990) ("Even if a party objects to certain evidence, if he fails toobject to similar evidence that the trial court admitted without objection, hewaives any claim that the evidence to which he did object was admittederroneously"); Graves v. North Shore Gas Co., 98 Ill. App. 3d 964, 973 (1981)("However, the record shows that plaintiff initially failed to object to thequestion from defendant's attorney although she did object to a similar questionsubsequently. An objection must be made to alleged incompetent evidence at thetime of its admission, and failure to make a timely objection waives the issue forpurposes of appeal"). Nevertheless, we do not agree with defendants' ultimateconclusion that plaintiff's failure to timely object to Marwaha's testimonyresults in the trial court's grant of a new trial being an abuse of discretion.

While it is true that, under such circumstances, plaintiff waived anyobjection she had to the admission of this testimony, the error may be addressedif it constituted plain error. While the plain-error doctrine finds greaterapplication in criminal cases, it is recognized in civil cases. Cunningham v.Millers General Insurance Co., 227 Ill. App. 3d 201, 207 (1992). In a civil case,plain error occurs when an error is of such magnitude that a party "cannototherwise receive a fair trial or a deterioration of the judicial process occurs." Dowell v. Bitner, 273 Ill. App. 3d 681, 693 (1995). Our supreme court has notedthat cases where plain error has been found have involved "blatantmischaracterizations of fact, character assassination, or base appeals to emotionand prejudice." Gillespie, 135 Ill. 2d at 377. The present case involves opiniontestimony rather than factual testimony; however, this distinction does not removeit from the first category of cases identified by the supreme court in Gillespie. Where a trial court grants a new trial because it believes it has committed plainerror, we review the decision applying the abuse-of-discretion standard. SeeBishop v. Baz, 215 Ill. App. 3d 976, 984 (1991).

In ruling on plaintiff's posttrial motion, the trial court acknowledgeddefendants' argument that plaintiff had waived this issue by failing to object. After explaining the basis for its determination that it was error to allowMarwaha to testify in the manner that he did, the trial court went on to state "itwas an error of such import to allow the case to proceed in this way, thatplaintiff has not really had a fair opportunity to present her case." While thetrial court did not use the term "plain error," its finding comports with theplain-error standard. See Dowell, 273 Ill. App. 3d at 693. The trial court alsonoted that the error was significant because it went "to the heart of the caseitself as to what the nursing home was to do and how they were to monitor thispatient." We find no abuse of discretion in the trial court's ruling. Whetherthe decedent had been properly monitored while at Snow Valley was a major portionof plaintiff's case. It was well within the trial court's discretion to determinethat, based on its finding that Marwaha's testimony differed from that set forthin his discovery deposition, this change deprived plaintiff of a fair opportunityto present her case.

Further, this error was one of the type that the supreme court identifiedin Gillespie, 135 Ill. 2d at 377, as falling within the class of errors that havebeen held to constitute plain error. In that case, the supreme court noted that"blatant mischaracterizations of fact" have been found to be plain error. In thepresent case, we are dealing with an opinion; however, the opinion was blatantlymischaracterized. Whether something of importance to the trial was blatantlymischaracterized would seem to be the important part of the supreme court'sholding. The trial court observed that, in his deposition, Marwaha flatly statedthat the decedent's vital signs were to be taken three times per day. At trial,Marwaha instead spoke in terms of assessments and would not acknowledge what hetestified to in his deposition. The trial court noted that this tied in withAndrowich's testimony, where she defined assessment as a skilled observation thatdid not require the taking of vital signs. The court found that, as a result, thejury was left with a skewed impression regarding the adequacy of defendants'actions. We find no error in the trial court's reasoning. The shift in Marwaha'stestimony, reinforced by the testimony of Androwich, resulted in Marwaha'sopinion, as set forth in his deposition, being blatantly mischaracterized.

Plaintiff asserts that this shift in testimony was a deliberate plot bydefendants to avoid the effect of Marwaha's deposition testimony. Plaintiffcontends that "assessment" is a nebulous term designed to give defendants "wriggleroom" with which to escape the effect of Marwaha's earlier statements. The trialcourt made no finding regarding whether this was a deliberate strategy bydefendants, and we need not pass upon this question here. We merely note thatplaintiff's suspicions do not appear to be completely unfounded. In support, onecould point to the fact that Marwaha never used the term "assessment" in hisdeposition, while at trial he was reluctant to answer questions regarding vitalsigns using any other term. This conveniently coincided with Androwich'stestimony, which defined "assessment." Plaintiff moved for sanctions for what sheperceived as a deliberate plot to circumvent Rule 213. The trial court deferredruling on this request. Plaintiff asks that we sanction defendants for thisalleged conduct; however, as the trial court deferred ruling and because we areremanding, we will exercise our discretion and not address this issue. See Turnerv. Commonwealth Edison Co., 63 Ill. App. 3d 693, 698 (1978).

We conclude that the trial court acted within its discretion when it decidedto address plaintiff's allegation of error. In a related argument, defendantscontend that plaintiff interjected this testimony into the trial because it firstcame out when plaintiff called Marwaha as an adverse witness. Defendants assertthat "[a] party cannot complain of error which he induced the court to make or towhich he consented." McMath v. Katholi, 191 Ill. 2d 251, 255 (2000). However,the trial court noted that plaintiff did not truly invite this testimony becausethe answer Marwaha gave was different from what plaintiff would have expected himto give in light of his discovery deposition. The real problem is plaintiff'sfailure to object once Marwaha gave the divergent testimony. We have addressedthis issue above. We now turn to the question of whether the trial court properlydetermined that error occurred.

Defendants contend that the trial court abused its discretion in grantinga new trial because Marwaha's opinion was adequately disclosed. Regarding opiniontestimony, Supreme Court Rule 213 requires that parties disclose "the conclusionsand opinions of the opinion witness and the bases therefor." 177 Ill. 2d R.213(g). The rule further requires that parties supplement their disclosures asnew information becomes available. 177 Ill. 2d R. 213(i). A witness mayelaborate on a properly disclosed opinion. Becht v. Palac, 317 Ill. App. 3d 1026,1037 (2000). The fact that trial testimony is more precise than the opinion asoriginally disclosed does not necessarily result in a violation. Seef v. IngallsMemorial Hospital, 311 Ill. App. 3d 7, 23 (1999). However, the witness'stestimony must be encompassed by the original opinion. See Becht, 317 Ill. App.3d at 1037. Opinion testimony is "limited to comments within the scope of andconsistent with the facts and opinions disclosed in discovery." Parker v.Illinois Masonic Warren Barr Pavilion, 299 Ill. App. 3d 495, 501 (1998). A trialcourt's decision regarding whether an opinion has been adequately disclosed suchthat it may be admitted into evidence is reviewed applying the abuse-of-discretionstandard. Department of Transportation v. Crull, 294 Ill. App. 3d 531, 537(1998). Thus, we will reverse the decision of the trial court on this matter onlyif no reasonable person would agree with the decision. Schwartz, 177 Ill. 2d at176.

In the present case, the resolution of this question turns upon whetherMarwaha's testimony regarding "assessments" was encompassed by his opinion setforth in his discovery deposition that vital signs were to be taken three timeseach day. A reasonable person could conclude that his deposition testimony, wherehe answered affirmatively when asked whether the decedent's vital signs should be"taken" three times per day, entailed using medical instruments to ascertain anobjective measurement of decedent's vital signs. A reasonable person couldfurther conclude that Marwaha's trial testimony, particularly his statementsregarding a "quick assessment" that could be performed in less than one minute,indicated a procedure much less rigorous than that to which he testified in hisdeposition. Marwaha points out that at one point during the trial he did statethat checking vital signs was a part of an assessment and should have beenperformed three times per day. However, this testimony was preceded by histestimony that taking vital signs was a small part of an assessment. Given thisstatement and Marwaha's testimony regarding "quick assessments," a reasonableperson could conclude that this statement did not change the tenor of his trialtestimony or bring it within the scope of his deposition testimony. Since areasonable person could come to the same conclusion as the trial court, the trialcourt did not abuse its discretion in finding that Rule 213 had been violated. Defendants' contention that Marwaha was merely testifying in a more precise mannerat trial, consistent with his deposition, must therefore be rejected, and theirreliance on Becht, 317 Ill. App. 3d at 1037-38, which held that a witness mayexpand upon disclosed opinions, is misplaced.

Defendants attempt to frame this issue as whether witnesses may change theterminology in which they speak or must instead parrot deposition testimony. Wefind this argument unpersuasive. We agree that a witness is not required to usethe exact words previously used in a discovery deposition; however, where thewords have a different meaning, a violation of Rule 213 can occur. Defendants'argument begs the question in that it assumes that "assessment" is consistent withMarwaha's deposition testimony. The argument would have merit if this were true;however, the trial court found that Marwaha's testimony had changed. Defendantsignore the trial court's finding that "assessment," as used in the trial, referredto "some kind of a subjective evaluation that can be made without preciseinformation as to blood pressure and so forth." The trial court further foundthat Marwaha "testified to something new." As previously discussed, we cannot saythat this finding was an abuse of discretion. Accordingly, we find no error inthe trial court's determination that Marwaha's trial testimony was not properlydisclosed.

Snow Valley also argues that Marwaha's testimony was not opinion testimonyand thus does not fall within the scope of Rule 213(g). Snow Valley asserts thatMarwaha was testifying to the facts of the decedent's treatment rather thanoffering an opinion as to how she should have been cared for. Opinion testimonyconcerns what a witness " 'thinks, believes, or infers in regard to facts indispute, as distinguished from his personal knowledge of the facts themselves.' " Mittelman v. Witous, 135 Ill. 2d 220, 243 (1989), quoting Black's Law Dictionary985 (5th ed. 1979). In the present case, Marwaha's testimony included hisopinions. For example, he testified that the decedent should have been assessedthree times per day. This testimony clearly constituted his opinion regarding thestandard with which Snow Valley should have complied in caring for the decedent. Furthermore, his testimony as to what a nurse should do as part of a "quickassessment" appears to represent nothing more than his belief about what theprocess should entail, rather than being a description of any directions he gaveto the nurses at Snow Valley. Accordingly, we reject Snow Valley's argument onthis point. Snow Valley's assertion that Marwaha was disclosed only as a factwitness merely provides additional support for the conclusion that he should nothave been offering opinions at trial.

Finally, defendants contend that if Marwaha's testimony differed from thatset forth in his deposition, the proper remedy would have been to impeach him. Plaintiff did not attempt to do so. Defendants cite a number of cases affirmingthe efficacy of impeachment as a safeguard against errant testimony. See, e.g.,Boland v. Kawasaki Motors Manufacturing Corp., USA., 309 Ill. App. 3d 645, 652-53(2000); Niewold v. Fry, 306 Ill. App. 3d 735, 743 (1999). None of these casesstand for the proposition that the failure to impeach an opinion witness when heor she offers an undisclosed opinion somehow waives a Rule 213 objection. Infact, Boland supports the decision of the trial court in this case. In that case,the court held that the trial court had the discretion to shape a remedy followinga violation of Rule 213. Boland, 309 Ill. App. 3d at 652. The Boland court wenton to note that "[t]he circuit court could have excluded or severely limited thescope of the expert testimony." Boland, 309 Ill. App. 3d at 653. Far fromdemonstrating that the trial court erred in this case, Boland confirms the trialcourt's discretion in dealing with these matters.

Other cases cited by defendants do not address Rule 213 issues. Forexample, defendants cite a passage from Adams v. Family Planning AssociatesMedical Group, Inc., 315 Ill. App. 3d 533, 551 (2000), which confirms theunremarkable proposition that a discovery deposition may be used to impeach awitness. However, the Adams court expressly declined to address Rule 213 issuesthat had been raised by the parties. Adams, 315 Ill. App. 3d at 550. Similarly,Long v. Gray, 306 Ill. App. 3d 445, 450-51 (1999), relied on by defendants, shedsno light on the present case because it does not concern opinion testimony at all.

The First District's decision in Suttle v. Lake Forest Hospital, 315 Ill.App. 3d 96 (2000), comes closest to standing for the proposition that defendantsadvance in that it involved both a purported Rule 213 violation and an appellatecourt determination that a trial court committed an abuse of discretion. In thatcase, the defendant argued that it was prejudiced by a witness's undisclosedtestimony and the innuendo drawn by plaintiff from this testimony during closingargument. Suttle, 315 Ill. App. 3d at 108. The Suttle court rejected thedefendant's argument due to its failure to object to the plaintiff's closingargument. Suttle, 315 Ill. App. 3d at 109-10. Nowhere does the opinion statethat the failure to attempt impeachment waives a Rule 213 objection.

We decline to announce a rule that a failure to attempt impeachment waivesa Rule 213 objection here. This rule would eviscerate Rule 213. The proponentof an opinion would be free to disregard the rule, knowing that the only sanctionfor a violation would be the possibility of impeachment. Such a rule would thwartthe primary purpose of discovery rules, which is "to avoid surprise and discouragetactical gamesmanship." Schuler v. Mid-Central Cardiology, 313 Ill. App. 3d 326,331 (2000). Parties would be encouraged to disclose opinions minimally in orderto surprise their opponent, knowing that the only remedy would be possibleimpeachment. While impeachment may sometimes be an appropriate remedy, thedetermination of when this is the case is a matter within the trial court'sdiscretion. See Boland, 309 Ill. App. 3d at 652-53. We will craft no rule ofwaiver that would interfere with the discretion of trial courts on these matters.

The trial court based its decision to grant plaintiff's request for a newtrial on the variance in Marwaha's testimony. Because we conclude that the trialcourt did not abuse its discretion in determining that Rule 213 was violated andthat this violation was severely prejudicial to plaintiff, we also conclude thatthe trial court did not abuse its discretion in ordering a new trial.

The trial court also relied on the admission of a medical treatise assubstantive evidence and the impeachment of plaintiff with a misdemeanorconviction in reaching its decision. It found these errors to be of lessimportance, and we will briefly address them here. Preliminarily, however, wenote that Snow Valley has failed to comply with Supreme Court Rule 341 regardingthe citation of authorities. See 188 Ill. 2d R. 341. Rule 341(e)(7) requiresthat arguments be supported with citation to authority. 188 Ill. 2d R. 341(e)(7). Rule 341(d) directs that "[c]itations shall be made as provided in Rule 6." 188Ill. 2d R. 341(d). Rule 6 provides that "[c]itations of cases must be by title,to the page of the volume where the case begins, and to the pages upon which thepertinent matter appears in at least one of the reporters cited." 145 Ill. 2d R.6. Snow Valley has not provided citations to the pages upon which the pertinentmatter appears. We would thus be justified in finding that Snow Valley waivedthese issues. See People v. Johnson, 192 Ill. 2d 202, 206 (2000). However, asthe remaining issues are relatively simple, we decline to apply the waiver rulehere.

The first of the additional two errors the trial court found to contributeto the unfairness of the trial was what determined was the admission of a medicaltreatise as substantive evidence. Dr. Breall, one of plaintiff's expertwitnesses, testified during his discovery deposition that a medical text, referredto as the Braunwald text, supported his opinion that digoxin and Verapamil wouldprevent a patient from going into atrial fibrillation. At trial, Breall admittedthat he had erred and that the Braunwald text did not support his opinion. Subsequently, Dr. Fintel, one of defendants' experts, testified that "[t]hetextbook states clearly that new information suggests that drugs like digoxin andVerapamil do not prevent the emergence of atrial fibrillation and it givesreferences." Defendants argue that the testimony of Fintel constituted properimpeachment of Breall, and they note that medical treatises may be used to impeachexperts. See Mielke v. Condell Memorial Hospital, 124 Ill. App. 3d 42, 54 (1984).

The trial court, however, found that the use of the text was improper. Thetrial court noted that Breall admitted that the Braunwald text did not support hisopinion; consequently, there was no basis upon which he needed to be impeached,nor was there any need to perfect impeachment. The trial court found that thetext was introduced to establish the accepted method of treatment. Finally, thetrial court held that this error was prejudicial in that the jury would likelylook to the treatise to resolve the dispute between Breall and Fintel. We findthis to be an adequate exercise of the trial court's discretion.

Initially, we note that the trial court's determination that Breall admittedthat the Braunwald text did not support his opinion is supported by the record. In such circumstances, there was no basis to impeach him. Our supreme court hasnoted the following:

"A court's witness, or any witness for that matter, cannot beimpeached by prior inconsistent statements unless his testimony has damaged,rather than failed to support the position of the impeaching party. Thereason for this is simple: No possible reason exists to impeach a witnesswho has not contradicted any of the impeaching party's evidence, except tobring inadmissible hearsay to the attention of the jury." People v. Weaver,92 Ill. 2d 545, 563 (1982).

In the present case, Breall did not contradict defendants' assertion that theBraunwald text did not support his position. Hence, the trial court did not errin determining that defendants' use of the text did not constitute impeachment. Accordingly, the trial court did not abuse its discretion in finding that the textwas introduced for substantive purposes, which is clearly improper. See Mielke,124 Ill. App. 3d at 54. The trial court did not place as much weight on thiserror in deciding to grant a new trial. However, the trial court correctlydetermined that error occurred, and this error provides additional support for itsdecision to grant a new trial.

The second of the additional errors the trial court determined contributedto the unfairness of the trial involved the impeachment of plaintiff with whatthe trial court determined to be either a misdemeanor or some type of ordinanceviolation. During cross-examination of plaintiff, Marwaha's attorney asked whoMarlene Prairie was. Plaintiff answered that she was and stated that if she wereto write out her whole name, it would probably be Robin Marlene Ann Prairie. Sheexplained that she sometimes uses the name Marlene Prairie. Subsequently, thefollowing colloquy ensued:

"Q. Depending on the circumstances and depending on where you're atyou use different names, correct?

A. No, sir.

Q. Well, you've used the name Marlene Prairie in the 1990's, correct?

A. No sir. I did not.

Q. Ma'am, did you appear in the courthouse in DuPage County inFebruary of this year -- or February of 1999, and did you give your name asMarlene A. Prairie?

A. I don't believe so."

Plaintiff's counsel interposed an objection, which the trial court overruled. Theproceedings then continued as follows:

"Q Ma'am, were you involved in a proceeding in this courthouse inDuPage County back in February of this -- of last year?

A Yes.

Q And that was a proceeding to remove certain vehicles from yourproperty, correct?"

At this point, the court sustained an objection from plaintiff's counsel.

Defendants argue that this testimony was relevant in that whether aplaintiff is a lineal heir of the decedent is an issue in a wrongful death suit. See Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 471 (1992). However, thetrial court found that this issue was not actually in dispute. Furthermore,defendants could have elicited testimony regarding the name plaintiff used in theearlier proceeding without referring to the nature of the proceeding. The natureof the proceeding was not relevant to whether plaintiff was a lineal heir of thedecedent. Impeaching a witness with a misdemeanor is generally error, save whenthe misdemeanor arises from a crime of dishonesty. See Torres v. Irving Press,Inc., 303 Ill. App. 3d 151, 160 (1999). A reasonable person could conclude thatthe reference to "a proceeding to remove certain vehicles from [plaintiff's]property" conveyed to the jury that plaintiff was involved in some sort ofprosecution involving a misdemeanor or ordinance violation. Thus, the trial courtdid not abuse its discretion in determining that this impeachment was improper. See Schwartz v. Cortelloni, 177 Ill. 2d at 177.

Marwaha further argues that any error was cured by the trial court'ssustaining plaintiff's objection to this questioning. See American National Bank& Trust Co. of Chicago v. Thompson, 158 Ill. App. 3d 478, 487-88 (1987). Sustaining objections and giving curative instructions will not necessarily curean error where a party attempts to present prejudicial and clearly incompetentevidence. See People v. Harris, 228 Ill. App. 3d 204, 207-08 (1992); Betts v.Manville Personal Injury Settlement Trust, 225 Ill. App. 3d 882, 917-18 (1992). Moreover, even if the trial court's actions adequately cured this error, ourdisposition of this appeal would remain unchanged. The other two errorsidentified by the trial court are more than adequate to support its exercise ofdiscretion.

One last issue must be addressed before we conclude. Snow Valley arguesthat the trial court's order granting a new trial should be limited to plaintiff'scase against Marwaha. Snow Valley points out that the trial court did not findthat Snow Valley had violated Rule 213. Additionally, Snow Valley asserts thatthere was no nexus between the introduction of the Braunwald text and plaintiff'scase against Snow Valley. Initially, we note that Snow Valley has provided noauthority regarding the propriety of ordering a new trial regarding a defendantwhen the errors that form the basis of the order were committed by a codefendant. This issue is thus waived. Fuller v. Justice, 117 Ill. App. 3d 933, 942 (1983). Moreover, we note that "[a]s a general rule, the court may grant a new trial toone or more codefendants as justice may require." Blake v. Mahaffey, 39 Ill. App.3d 724, 724 (1976). This issue lies within the discretion of the trial court. Blake, 39 Ill. App. 3d at 724. In Bisset v. Village of Lemont, 119 Ill. App. 3d863, 865 (1983), one defendant argued that the trial court erred in ordering a newtrial as to both defendants, since only the codefendant's counsel had engaged inprejudicial or improper conduct. In rejecting that argument, the court observedthat issues regarding liability were common to both defendants who were involvedin that trial. Bisset, 119 Ill. App. 3d at 867. Similarly, in this case, theimproper testimony regarding what constituted a proper assessment concerned anissue upon which Snow Valley's liability could rest. The trial court did notabuse its discretion in ordering a new trial as to Snow Valley.

In light of the foregoing, we hold that the trial court did not abuse itsdiscretion in ordering a new trial as to both defendants. Plaintiff has raisedseveral other issues that she asserts support the trial court's order; however,in light of our disposition of this matter, they need not be addressed.

The decision of the circuit court of Du Page County is affirmed and thiscause is remanded for further proceedings.

Affirmed and remanded.

McLAREN and BYRNE, JJ., concur.