Turner v. Williams

Case Date: 12/17/2001
Court: 2nd District Appellate
Docket No: 2-00-1438 Rel

No. 2--00--1438
December 17, 2001

_______________________________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

_______________________________________________________________________________________________

LINDA L. TURNER, Indiv. andas) Appeal from the Circuit Court
Guardian of Brian Wong and ) of Du Page County.
Kevin Wong, Minors, )
)
Plaintiffs-Appellees, )
)
v. ) No. 98--L--894
)
LARRY L. WILLIAMS and C.R. )
ENGLAND AND SONS, INC., ) Honorable
) Edward R. Duncan,
Defendants-Appellants. ) Judge, Presiding.

_______________________________________________________________________________________________

JUSTICE McLAREN delivered the opinion of the court:

In this automobile collision case, defendants, Larry Williamsand C.R. England & Sons, Inc., appeal the judgment entered on thejury's verdict in favor of plaintiff, Linda L. Turner, individuallyand as guardian of Brian Wong and Kevin Wong, minors, in the amountof $5,863,115.15. On appeal, defendants contend that the trialcourt erred in (1) failing to consolidate a related wrongful deathaction; (2) instructing the jury on loss of a normal life as anelement of damages; and (3) excluding the testimony of defendants'accident reconstruction expert. Defendants seek the reversal ofthe jury's verdict and a new trial or, alternatively, a judgmentnotwithstanding the verdict, a new trial on damages, or a remitturin the amount of $3,700,000. We reverse and remand for a newtrial.

On June 7, 1998, Brian Wong, age 15, and Kevin Wong, age 13,were passengers in a Mazda van driven by their father, Jack Wong. Mr. Wong was traveling westbound on Route 38, or Roosevelt Road.While attempting to make a left turn at the intersection of Route38 and Fabyan Parkway in West Chicago, the van was struck by asemi-tractor trailer driven by defendant Larry Williams and ownedby C.R. England & Sons. Jack Wong died in the collision. BrianWong and Kevin Wong were severely injured. They have no memory ofthe collision.

On August 31, 1998, Linda L. Turner, as guardian of Brian Wongand Kevin Wong, filed a negligence action against defendants,Williams and C.R. England & Sons. Although the record does notreflect that the estate of Jack Wong was ever a party to the suit,the trial court approved the minor plaintiffs' petition forsettlement on September 24, 1998. The plaintiffs entered into asettlement with the automobile insurance carrier for Jack Wong, notthe estate of Jack Wong, for the policy limits of $200,000, with$100,000 being awarded to each minor plaintiff.

On April 28, 2000, Yok Tsun Gong, the administrator of theestate of Jack Wong, filed a separate wrongful death action arisingfrom the same automobile collision against defendants, Williams andC.R. England & Sons. Since plaintiffs Brian Wong and Kevin Wongwere the sole heirs of their father, Jack Wong, the wrongful deathaction sought to compensate plaintiffs for damages sustained as aresult of the death of their father.

On May 23, 2000, defendants moved to consolidate the wrongfuldeath action with the negligence action brought on plaintiffs'behalf. They argued that allowing the actions to proceedseparately would allow plaintiffs to split their cause of actionand essentially obtain a double recovery for the same injury. Thetrial court denied the motion to consolidate.

Prior to trial, defendants filed a motion in limine to barplaintiffs from introducing evidence of emotional damage sustainedby the minor plaintiffs as a result of the death of their fatherand other evidence concerning damages available under the WrongfulDeath Act (740 ILCS 180/0.01 et seq. (West 2000)). The motionasserted that the minor plaintiffs could not be compensated in thenegligence action for emotional damage sustained in the automobilecollision due to the death of their father because it is not anelement of their claim for negligence. The motion was denied.

Plaintiffs filed a motion in limine to exclude the testimonyof defendants' accident reconstruction expert, Wesley Grimes. Themotion asserted that the testimony of Mr. Grimes should be barredbecause there was an inadequate foundation to support histestimony. The motion was granted, and Mr. Grimes was barred fromtestifying at trial.

The case proceeded to trial. In their case in chief,plaintiffs called five eyewitnesses to the collision and numerousdamage witnesses, including five treating physicians, a treatingpsychology clinician, two treating speech pathologists, and two guidance counselors at plaintiffs' school. Defendants called twophysicians who conducted independent medical examinations onplaintiffs in their case in chief.

The trial court instructed the jury on loss of a normal lifeas an element of damages, among other things. The jury entered averdict in favor of Brian Wong and against defendants in the amountof $2,480,000, itemized as follows: $1,500,000 for loss of a normallife; $30,000 for disfigurement; $600,000 for past pain andsuffering; and $350,000 for future pain and suffering. The juryentered a verdict in favor of Kevin Wong in the amount of$3,390,000, itemized as follows: $2,200,000 for loss of a normallife; $40,000 for disfigurement; $800,000 for past pain andsuffering; and $350,000 for future pain and suffering. A verdictin favor of Linda Turner was returned in the amount of $193,115.15,which reflected medical expenses paid for Brian Wong and KevinWong.

The jury answered a special interrogatory that apportionednegligence at 60% for defendants Williams and C.R. England and 40%for Jack Wong. Since Jack Wong was not a party to the suit, thespecial interrogatory was given to test the jury's verdict againstdefendants' theory that Jack Wong was the sole proximate cause ofthe collision.

Judgment was entered on the jury's verdict in the amount of$5,863,115.15; that amount provided for a setoff against theverdict in favor of each minor plaintiff in the amount of $100,000each, which reflected the settlement reached with Jack Wong'sinsurance carrier prior to trial. Following the denial ofdefendants' posttrial motion, they filed a notice of appeal.

I. CONSOLIDATION

Defendants first contend that the trial court erred infailing to consolidate the wrongful death action filed on behalfof Jack Wong, deceased, with the negligence action filed on behalfof the minor plaintiffs. Defendants contend that, since plaintiffs in the present action were allowed to introduceevidence concerning the emotional damage sustained by the minorplaintiffs due to their father's death in the collision and toargue that they should be compensated for such grief, the failureto consolidate the two cases was prejudicial in that it allowsfor a double recovery for these damages in both suits.

Defendants claim that this issue should be decided under thede novo standard of review through a res judicata analysis, whichindicates that plaintiffs impermissibly split the wrongful deathaction from the negligence action by filing two separate suits. Wedisagree. The issue of res judicata is not determinative of theissue of whether the two causes of action should have beenconsolidated.

In all of the cases cited by defendants, the doctrine of resjudicata was used defensively and a second, subsequent cause ofaction was barred due to the resolution of an earlier cause ofaction involving the same parties and the same issues. See, e.g.,People ex rel. Burris v. Progressive Land Developers, Inc., 151Ill. 2d 285 (1992); River Park, Inc. v. City of Highland Park, 184Ill. 2d 290 (1998); Marvel of Illinois, Inc. v. Marvel ContaminantControl Industries, Inc., 318 Ill. App. 3d 856 (2001); Marshall v.Mayflower, Inc., 817 F. Supp. 922 (D.C. Kan. 1993). None of thecases cited by defendants address the issue of the trial court'sfailure to consolidate two cases arising from the same occurrencethat were pending simultaneously.

Section 2--1006 of the Code of Civil Procedure provides forthe consolidation of actions pending in the same court "as an aidto convenience, whenever it can be done without prejudice to asubstantial right." 735 ILCS 5/2--1006 (West 2000). The trialcourt has broad discretion in determining the propriety ofconsolidation. Horn v. Rincker, 84 Ill. 2d 139, 147 (1981). Itsdecision will not be overturned on review absent a finding of anabuse of discretion. Anderson v. Anchor Organization for HealthMaintenance, 274 Ill. App. 3d 1001 (1995).

Consolidation has three different applications: (1) whereseveral actions are pending involving substantially the samesubject matter, the court may stay proceedings in all but one andsee whether the disposition of the one action may settle theothers, thereby avoiding multiple trials on the same issue; (2)where several actions involve an inquiry into the same event inits general aspects, the actions may be tried together, but withseparate docket entries, verdicts, and judgments, theconsolidation being limited to a joint trial; and (3) whereseveral actions are pending that might have been brought as asingle action, the cases may be merged into one action, therebylosing their individual identity, to be disposed of in one suit. Ad-Ex, Inc. v. City of Chicago, 247 Ill. App. 3d 97 (1993). Whereseparate causes are of the same nature, involve the same or likeissues and depend largely upon the same evidence, as in the thirdexample noted above, consolidation is not an abuse of discretion. Peck v. Peck, 16 Ill. 2d 268, 275 (1959).

The negligence action brought on behalf of the minorplaintiffs and the wrongful death action involve the sameautomobile collision. The resolution of both cases depends on thesame evidence on liability. In both cases, plaintiffs willpresent evidence to establish that defendants were negligent incolliding with the vehicle driven by Jack Wong carrying the minorWong children as passengers. Thus, the only issues that differ inthe two cases are the amount of damages and the apportionment ofliability.

According to the itemized verdict, the minor plaintiffs werecompensated for the following elements of damage: loss of a normallife, disfigurement, pain and suffering experienced, and pain andsuffering reasonably certain to be experienced in the future. According to the verdict form, plaintiffs were not compensated foremotional distress experienced under the "zone of physical danger"test enunciated in Rickey v. Chicago Transit Authority, 98 Ill. 2d546 (1983). Under this rule, a bystander must be in the zone ofphysical danger to the direct victim created by a defendant'snegligent conduct, have a reasonable fear for his own safety basedon a high risk to him of physical impact, and show physical injuryor illness as a result of the emotional distress caused by thedefendant's negligence.

Nevertheless, the trial court allowed plaintiffs to introduceevidence concerning the emotional distress suffered by the minorplaintiffs resulting from the death of their father. Although theminor plaintiffs did not remember the collision itself, andtherefore could not have suffered emotional anguish stemming frommemories of the collision, the record reflects that the treatinghealth care providers testified that the minors experienced griefand related emotional difficulties due to the loss of theirfather. Brian Wong's treating psychology clinician relatedbehavioral problems due to cognitive deficits and feelings ofcomplicated grief over the loss of his father. The therapisttestified of a therapy program designed to cope with griefreactions. In addition, both minors testified of their feelingsof loss over the death of their father. In closing argument,plaintiffs' counsel asked the jury to compensate the minorplaintiffs for the pain and suffering experienced due to the deathof their father, including the grief, sadness, and emotionaldamages associated with losing their father in a "collision thatshould not have occurred," the fact that they "never got to saygood-bye," and "the death of the father, the sadness and thegrief."

Since the minor plaintiffs were directly injured in theautomobile collision and have no memory of the collision, alldamages they sustained were a consequence of their own injuries. As persons directly injured as a result of the alleged negligentactions of defendants in colliding with the vehicle driven by JackWong, the minor plaintiffs are precluded from recovering damagesunder the zone of danger rule enunciated in Rickey. See Corgan v.Muehling, 143 Ill. 2d 296 (1991) (holding that the Rickey zone ofdanger test does not apply to plaintiffs that are directly injuredand are not merely bystanders). Although it has been held that aplaintiff who is both a direct victim and a bystander can recoverfor both elements of damage in separate counts, plaintiffs areprecluded from doing so in this case. Both minor plaintiffs haveno memory of the collision and, therefore, could not havesustained emotional distress from being in the zone of physicaldanger in the collision. See Hayes v. Illinois Power Co., 225Ill. App. 3d 819 (1992). Furthermore, plaintiffs' complaint doesnot allege the negligent infliction of emotional distress.

Under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West2000)), the minor plaintiffs, as the sole surviving heirs or nextof kin of Jack Wong, are entitled to recover for the pecuniarylosses incurred as a result of the death, including money,benefits, goods, services, and society. Although those damages donot include grief or mental anguish resulting from the death,damages for loss of society are recoverable, which include thedeprivation of love, companionship, and affection from thedeceased person. Seef v. Sutkus, 205 Ill. App. 3d 312, 318(1990). Although bereavement itself is not directly recoverableas an element of damage, testimony concerning beareavement isrelevant to a claim for loss of society. Uhr v. Lutheran GeneralHospital, 226 Ill. App. 3d 236 (1992). It is not relevant to thenegligence claim without evidence that plaintiffs remembered thecollision.

The fact that plaintiffs had no memory of the collision issignificant. Contrary to plaintiffs' argument that plaintiffswill experience grief and sadness "every time they look in themirror and they see the scars," without any memory of thecollision, the only emotional injury plaintiffs could havesuffered did not stem from feelings related to the facts of thecollision itself. Instead, evidence was presented to establishthat plaintiffs sustained emotional injury as a result of thedeath of their father. However, this evidence was not relevant tothe damages sustained by plaintiffs. This evidence is relevant tothe damages sustained by the minor plaintiffs in theunconsolidated wrongful death suit.

Both the wrongful death and the negligence actions involvethe same issues concerning liability. Plaintiffs' counselacknowledged this fact at the hearing on the motion toconsolidate, indicating that "[e]verything is the same except inthis case we're talking about damages to the two boys versus thewrongful death of the father." Although the damages sustained bythe minor plaintiffs from their own injuries (resulting in thenegligence suit) and from the death of their father (resulting in the wrongful death suit) are not identical, the evidence presentedon the damages in the negligence suit improperly overlapped withthe evidence that will be presented on the damages in the wrongfuldeath suit. By trying the two suits separately, and assuming theproper consideration of evidence in the wrongful death suit, it isapparent that a double recovery on the damages for pain andsuffering in the negligence suit and loss of society in thewrongful death suit would arise.

In denying the motion to consolidate, the trial courtexpressed concern that continuing the scheduled trial date on thenegligence suit to allow the two suits to be consolidated fortrial would interrupt the plaintiffs' school year. The court wasalso concerned that consolidating the two cases would require thejury to "have too much on its plate." With respect to defendants'contention that the failure to consolidate would increase thepotential for double recovery, the court indicated that the juryinstructions would protect the interests of defendants.

Here, the negligence and wrongful death causes of actiondepend largely on the same evidence, including that on damages. In our view, the limiting instruction that was given--that thejury not consider "the loss of society due to the death of JackWong" or "the relationship between either Brian Wong or Kevin Wongand their father" in awarding damages for past and future pain andsuffering--confuses, rather than clarifies, the issues. Loss ofsociety is not an element of damage in the negligence claim, and,therefore, evidence of such damage was not relevant. Theprejudicial effect of the jury's verdict in this case, as well asthe virtual certainty for a double recovery on damages given theevidence presented at trial, indicates that the two causes ofaction should have been consolidated for trial. The trial court'sdenial of the motion to consolidate was an abuse of discretion. Therefore, we reverse the trial court's order denying defendants'motion to consolidate. We also reverse the judgment entered onthe jury's verdict and remand the cause to the trial court for anew trial on all issues to be conducted as a consolidated trial onboth the negligence and wrongful death causes of action.

II. JURY INSTRUCTION - LOSS OF A NORMAL LIFE

In conjunction with its assertion that the trial court erredin failing to consolidate the wrongful death action with thenegligence action, defendants assert that the trial court erred ingiving the jury an instruction on loss of a normal life ratherthan disability.

Contrary to plaintiffs' contention that this issue has beenwaived on appeal for failure to object at the instructionconference, the record is clear that an objection to the term"loss of a normal life" in lieu of disability was raised and thatthe instruction was given over this objection. Further, the issuewas raised in defendants' posttrial motion. The failure ofdefendants to tender an alternate instruction on disability doesnot result in the waiver of this issue either. At the instructionconference, the trial court indicated that it was plaintiffs'option to use either the term "disability" or "loss of a normallife" as the damage instruction. Under these circumstances, thefailure to tender an alternate instruction on disability does notresult in the waiver of this issue on appeal. Therefore, we willconsider the issue of whether the trial court erred in giving theloss of a normal life instruction rather than the disabilityinstruction.

The plaintiff has the right to have the jury clearly andfairly instructed on any theory supported by the evidence. Tojustify an instruction, some evidence in the record must supportthe theory. The trial court has discretion in determining whatissues are raised by the evidence. Leonardi v. Loyola University,168 Ill. 2d 83, 100 (1995). Giving or denying a jury instructionis also within the trial court's discretion. A new trial will begranted because of improper jury instructions only where the partyhas suffered serious prejudice from the offending instruction. Thompson v. MCA Distributing, Music Corp. of America, 257 Ill. App. 3d 988, 991 (1994). In determining the adequacy of juryinstructions, this court considers whether, considering theinstructions as a whole, the jury was fairly, fully, andcomprehensively informed as to the relevant principles. Campbellv. Wagner, 303 Ill. App. 3d 609, 611 (1999).

Defendants claim that under Tornabene v. Paramedic Servicesof Illinois, Inc., 314 Ill. App. 3d 494 (2000), the use of theloss of a normal life instruction rather than the disabilityinstruction is contrary to Illinois law and that the trial court'suse of this instruction warrants a new trial. The Tornabene courtrelied on the prior case of Torres v. Irving Press Inc., 303 Ill.App. 3d 151 (1999), which disapproved of the use of the term "lossof a normal life" in the damage instruction. The Tornabene courtrejected the rationale of Smith v. City of Evanston, 260 Ill. App.3d 925 (1994), which, in determining that the trial court erred ingiving the loss of a normal life instruction, held that the term"loss of a normal life" more accurately described the evidence. The court's holding in Torres was based on the comments to the IPICivil 3d No. 30.04, the disability instruction, which recommendedthe use of the pattern instruction on disability rather than anonpattern instruction on loss of a normal life (Illinois PatternJury Instructions, Civil, No. 30.04 (3d ed. 1995) (hereinafter IPICivil 3d)).

Since Smith, Torres, and Tornabene were decided, the 2000edition of the Illinois Pattern Jury Instructions was published. Illinois Pattern Jury Instructions, Civil (2000). Included inthis new edition is an instruction that gives disability or lossof a normal life as alternatives. Illinois Pattern JuryInstructions, Civil, No. 30.04.01 (2000) (hereinafter IPI Civil). The Notes on Use to IPI Civil No. 30.04.01 indicate that the term"loss of a normal life" can be used rather than "disability" ifthe trial court determines that Smith is applicable and that "lossof a normal life" more accurately describes the element of damagesclaimed and would be less confusing to the jury. IPI Civil No.30.04.01, Notes on Use.

The addition of instruction IPI Civil No. 30.04.01, whichallows either loss of a normal life or disability to be given asan instruction, depending on the nature of the evidence at trial,illustrates that the use of an instruction on loss of a normallife is not contrary to Illinois law. Indeed, loss of a normallife has been recognized by this court as an element ofcompensable damage. Zuder v. Gibson, 288 Ill. App. 3d 329 (1997); see also Hiscott v Peters, 324 Ill. App. 3d 114, 127 (2001).

Here, however, the trial court gave plaintiffs the option ofchoosing either disability or loss of a normal life. It does notappear that any consideration was given as to which term moreaccurately described the damages or whether the holding of Smithwas applicable.

Since we have already determined that error occurred thatwarrants a new, consolidated trial, we have no occasion todetermine whether the trial court erred in giving the loss of anormal life instruction rather than the disability instruction. On remand, however, the trial court is directed to consider thetendered instruction in light of the "Notes on Use" and "Comment"sections to IPI Civil No. 30.04.01. If the trial court determinesthat loss of a normal life more accurately portrays the evidencepresented at trial and utilizes this alternative, IPI Civil No.30.04.02 should also be given, which defines the term "loss of anormal life."

III. EXPERT'S TESTIMONY

Defendants next contend that the trial court erred inexcluding the testimony of their retained opinion witness, WesleyGrimes. Mr. Grimes is an accident reconstructionist. Based ontwo computer programs and his own calculations, Mr. Grimes was totestify that defendant Williams was traveling 26 to 30 miles perhour at impact and 33.5 miles per hour plus or minus 10% beforebraking; that Jack Wong was traveling between 18 to 22 miles perhour at impact; that defendant Williams was between 150 to 242feet from the point of impact when Wong moved and braking began;and that defendant Williams had approximately 3 to 4 seconds toreact to the movement of Mr. Wong. Based on these findings, Mr.Grimes was to testify that the cause of the collision was the Wongvehicle's turning in front of defendants' vehicle.

Plaintiffs filed a motion in limine to bar the testimony ofMr. Grimes. The motion asserted that the testimony of Mr. Grimeswas speculative and not in compliance with Wilson v. Clark, 84Ill. 2d 186 (1981).

The trial court granted the motion and barred Mr. Grimes fromtestifying. The basis for the court's ruling, however, was notWilson v. Clark. Instead, the court excluded the testimony of Mr.Grimes for the following reasons: there was sufficient eyewitnesstestimony regarding the speed of the vehicles and an expert'stestimony was not needed in these areas; there was insufficientfoundation for the computer-generated evidence under the Fryestandard; the opinions lacked sufficient foundation because theydid not take into account the color of the traffic lights at thepoint of impact; the opinions lacked sufficient foundation becausethe witness did not know the starting point of the vehicle and themarkings on the roadway; and the disclosures of Mr. Grimes'sopinions required by Supreme Court Rules 213(f) and (g) (177 Ill.2d Rs. 213(f), (g)) did not state that his computer programs were"reliable."

Generally, the opinion testimony of an expert is admissibleif the expert is qualified by knowledge, skill, experience,training, or education in a field that has "at least a modicum ofreliability" and the testimony would assist the jury inunderstanding the evidence. Wiegman v. Hitch-Inn Post ofLibertyville, Inc., 308 Ill. App. 3d 789, 799 (1999). However, anexpert's opinion is only as valid as the reasons for the opinion. Soto v. Gaytan, 313 Ill. App. 3d 137 (2000). Thus, the partycalling an expert witness must lay a foundation sufficient toestablish that the information upon which the expert bases hisopinion is reliable. Hiscott, 324 App. 3d at 122. Forreconstruction testimony to be admissible, there must besufficient data about the accident in evidence to provide areasonable basis for the expert's opinion. Hiscott, 324 Ill. App.3d at 123. The admission of an expert's testimony lies with thesound discretion of the trial court. Wiegman, 308 Ill. App. 3d at799. The trial court's ruling regarding the admissibility of anexpert's opinion will be reversed when the error was prejudicialor the result of the trial was materially affected. Hiscott, 324Ill. App. 3d at 122.

The trial court's determination that the testimony of Mr.Grimes should be barred because there was sufficient evidence fromthe eyewitnesses concerning the speed of the vehicles was an abuseof discretion. The existence of eyewitness testimony is not aconclusive factor in determining whether accident reconstructiontestimony is admissible. Watkins v. Schmitt, 172 Ill. 2d 193, 206(1996). Instead, the court must determine whether, in addition toeyewitness testimony, an expert's reconstruction testimony wouldassist the jury in understanding scientific principles and enableit to make factual determinations. Watkins, 172 Ill. 2d at 205.

Here, there were five eyewitnesses to the occurrence,including defendant Williams. The witnesses each viewed theoccurrence from different vantage points. However, the testimonyfrom each of these witnesses concerning the speed of defendantWilliams and Jack Wong prior to and at impact was contradictory. One witnesses estimated defendant's speed at 45 miles per hour. Defendant estimated his speed as 40 miles per hour prior toapplying his brakes and 35 to 40 miles per hour after braking. The remaining witnesses either could not estimate speed or coulddo so only with vague descriptive terms such as "pretty fast" or"rather fast." Additionally, each witness saw defendants' vehicleat different points in time and at different distances from thecrash site.

In our view, the testimony from the eyewitnesses wassufficiently confusing that the testimony of Mr. Grimes concerningthe estimated speeds would assist the jury in sorting through theevidence presented and determine how the collision likelyoccurred. Mr. Grimes was to testify not only on estimated speeds but also on the amount of time defendant had to react. This issuecould have been of import to the jury in understanding thetestimony of the eyewitnesses that described the conditions suchas speed and distance. See Ketchum v. Dura-Bond Concrete, Inc.,179 Ill. App. 3d 820 (1989).

Likewise, the trial court abused its discretion in excludingthe testimony of Mr. Grimes because the computer-generated dataused in formulating his opinions did not satisfy the standard setforth in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). InIllinois, the admission of scientific evidence is strictlygoverned by the standard enunciated in Frye. People v. Eyler, 133Ill. 2d 173, 211 (1989); see also People v. Miller, 173 Ill. 2d167 (1996) (declining to adopt the Daubert test (Daubert v.Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d469, 113 S. Ct. 2786 (1993)) in place of the Frye test inIllinois). Simply stated, the Frye rule allows for the admissionof evidence when the scientific principle that forms the basis ofevidence has achieved general acceptance in the evidence'sparticular field. Frye, 293 F. at 1014.

The issue of whether the computer programs utilized by Mr.Grimes in forming his opinions are reliable is not a Frye issue. The Frye standard is utilized to test novel scientific evidencewith no prior history or reliability. The use of accidentreconstruction testimony is not novel. In the offer of proof madeconcerning the proposed testimony of Mr. Grimes, he testified thatthe computer programs used, EDCRASH and EDSMAC4, are "widely usedand accepted in the field of crash analysis."

Although Mr. Grimes's proposed testimony concerning thereliability of the computer programs and their use and acceptancein the field of accident reconstruction was not referenced indefendants' answers to Supreme Court Rule 213 interrogatories, wedo not believe that such omission warrants the exclusion of histestimony. Although a Frye hearing is not mandated, it isrequired in situations when the evidence at issue is not commonlyrecognized in the scientific field in which it belongs. Donaldsonv. Central Illinois Public Service Co., 313 Ill. App. 3d 1061,1070 (2000). Any issue plaintiffs had concerning the testimony ofMr. Grimes and the Frye standard should have been addressed in aFrye hearing prior to trial. Since Supreme Court Rule 213requires the disclosure of opinions intended to be expressed by aproposed expert at trial (177 Ill. 2d R. 213), it does notencompass the disclosure of testimony that would have beenelicited had a Frye hearing been conducted prior to trial. Themanner in which courts have utilized the Frye standard to test thereliability of proposed opinion testimony prior to trial leads usto conclude it was not intended to serve as the basis for theexclusion of a witness via a typical motion in limine brought andheard on the eve of trial without an evidentiary hearing. Moreover, plaintiffs' motion in limine, which sought toexclude Mr. Grimes from testifying, asserted that his testimonywas without foundation because he did not input informationextracted from the depositions in the computer programs and didnot use certain information such as the color of the lights. Inour view, the information used or not used by Mr. Grimes was nota sufficient basis to bar his testimony. This issue could havebeen adequately brought to light before the jury on cross-examination. Mr. Grimes utilized information admitted in evidenceto formulate his opinions. The fact that the information was thensubmitted to a computer does not render it without sufficientfoundation.

For these reasons, we determine that the trial court abusedits discretion in barring the testimony of Mr. Grimes. On remand,Mr. Grimes should be allowed to testify.

The judgment of the circuit court of Du Page County isreversed. The cause is remanded for a new trial on all issueswith directions to consolidate Gong v. Williams, Du Page CountyCourt No. 00--L--431, for retrial.

Reversed and remanded.

GEIGER and CALLUM, JJ., concur.