EVIDENCE & OBJECTIONS: Laying Foundations for … OF CONTENTS Evidence & Objections: Laying Foundations for Introducing and Raising and Rebutting Evidence October 16, 2013 Anticipating

The Chicago Bar Association Presents: EVIDENCE & OBJECTIONS: Laying Foundations for Introducing and Raising and Rebutting Evidence

Wednesday, October 16, 2013 3:00-6:00 p.m. The Chicago Bar Association 321 S. Plymouth Court Level of Instruction: Intermediate Presented by: CBA CLE Committee Also Available: Archived Webcast, DVD Rental, Written Materials Objection! Leading. . .beyond the scope of direct. . .improper foundation. . .Evidentiary objections can be the bane of the trial lawyer=s existence. One of the greatest fears for the less experienced practitioner is the prospect of not knowing the proper steps to admit a crucial piece of evidence. Attend this seminar and lay your fears to rest. Hear experienced trial lawyers advise you how to avoid potential pitfalls. Learn when to ask for a side bar and how to present your case smoothly and persuasively without irritating the judge and jury. ANTICIPATING OBJECTIONS DURING THE DISCOVERY PHASE AND MOTIONS IN LIMINE Successful Strategy in Drafting Motions in Limine-When Not to AFlag@ Issues How Many Motions is Too Many Effective Psychological Techniques When to AGive@ and When to ADig In@ Michael E. Holden, Romanucci & Blandin PRACTICAL APPLICATIONS OF LAYING FOUNDATIONS Actual demonstrations of laying foundations for common and not-so-common forms of evidence, including: medical records and bills, photographs, accident diagrams, reconstruction testimony, and self authenticating documents Richard B. Foster, Donohue Brown Mathewson & Smyth LLC TRIAL OBJECTIONS AND EFFECTIVELY RESPONDING TO OBJECTIONS Standard Objections Frequently Raised at Trial Effective Presentations of Objections When Not to Object John L. Nisivaco, Boudreau & Nisivaco, LLC (Moderator) HANDLING OBJECTIONS FROM THE JUDICIAL PERSPECTIVE Objections Relating to Opening Statements Closings Arguments Jury Instructions and Juror Questions Hon. Elizabeth M. Budzinski, Associate Judge, Law Division-Trial Section, Circuit Court of Cook County PRESERVING THE RECORD FOR APPEAL Voir Dire Examination of Witnesses Offers of Proof Avoiding Reversible Errors David A. Novoselsky, Novoselsky Law Offices

TABLE OF CONTENTS Evidence & Objections: Laying Foundations for Introducing and Raising and

Rebutting Evidence October 16, 2013

Anticipating Objections During the Discovery Phase and Motions in Limine Michael E. Holden .................................................................................................................. CBA3 Practical Applications of Laying Foundations Richard B. Foster, III .......................................................................................................... CBA131 Trial Objections and Effectively Responding to Objections .............................................. CBA155 John L. Nisivaco Preserving the Record for Appeal David A. Novoselsky .......................................................................................................... CBA169

CBA1

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CBA2

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION

JOANNE SALVI, ) ) Plaintiff, ) ) v. ) No. 08 L 10476 ) 1808 GLENVIEW, INC., a domestic corporation, d/b/a “Pizano’s Pizza & Pasta,”

) )

) Defendants. ) )

PLAINTIFF’S MOTION IN LIMINE NO. 1 SOLE PROXIMATE CAUSE

NOW COMES the Plaintiff, JOANNE SALVI, by and through her attorneys,

ROMANUCCI & BLANDIN, and moves this Honorable Court to bar, in limine, any and all voir

dire, statement, testimony, questioning, impeachment, cross-examination, expert testimony,

argument, direct or indirect, by inuendo or otherwise, at any time during the course of the trial of

this action, before any member of the venire, a panel, or the jury, of evidence or arguments

which might suggest to the jury that any Plaintiff, any other party or third person was the sole

proximate cause of the subject accident. In support thereof, Plaintiff states as follows:

1. The facts of this case and the testimony before this court fails to support an

argument that the Plaintiff, any other party, or a third person was the sole proximate cause of this

accident. A sole proximate cause argument requires that the defendant present competent and

sufficient evidence that a non-defendant (someone or something) is the sole proximate cause of

the plaintiff’s injury. McDonnell v. McPartlin, 192 Ill.2d 505, 516 (2000); Leonardi v. Loyola

University of Chicago, 168 Ill.2d 83 (1995).

Sample MIL 001 CBA3

2. In this case, Plaintiff expects the Defendant to argue that Joanne Salvi was the

sole proximate cause of the incident in question. However, there is ample evidence to prove that

the Defendant’s negligent conduct was a proximate cause of the incident. Specifically, Plaintiff’s

uncontested expert testimony will show that the handrail at Pizano’s was not in compliance with

the requirement of the building code applicable to the Village of Glenveiw at the time of the

accident, and that this non-compliance was a proximate cause of the Ms. Salvi’s fall and injury.

Defendant has not retained any expert and has offered no testimony to show that their non-

compliance was somehow otherwise reasonable, or that their non-compliance was not a

proximate cause of the occurrence.

3. Moreover, this case is similar to the recent line of cases holding that “[i]n

addition, the duty of care that arises from the business invitor-invitee relationship encompasses

the type of risk-i.e., the negligent act of a third person - that led to the decedent's injuries.”

Marshall v. Burger King Corp., 222 Ill. 2d 422, 440 (2006) (emphasis added). Here, Plaintiff’s

contention is that handrails are required because it is well known that people mis-step on

stairways. The handrail is a safety device to reduce the risk of injury in the case that someone

does misstep. Defendant’s failure to have a handrail that was in compliance with the building

code was a failure to have a safety device to protect invitees from injury should someone’s

negligence, including their own, cause them to mis-step while navigating the stairway. Allowing

the Defendant to argue that Joanne Salvi’s conduct was the sole proximate cause is improper, as

it would undercut this holding. See also Dillard v. Walsh Press and Die Company, 224

Ill.App.3d 269, 280 (1st Dist. 1991), Louis v. Stran Steel Corporation, 57 Ill.2d 94, 100 (1974);

see also Dugan v. Sears, 113 Ill.App.3d 740, 744 (1st Dist. 1983).

Sample MIL 002 CBA4

4. In the instant case, there is no evidence that Joanne Salvi is the sole proximate

cause of her injuries. To the contrary, the uncontested evidence in this matter will be that the

conduct of the Defendant in failing to have a handrail that complied with the Village of

Glenveiw building code is the proximate cause of Plaintiff’s fall and injury. As such, Defendant

should not be allowed to argue that Plaintiff was the sole proximate cause of her own injury.

WHEREFORE, Plaintiff, JOANNE SALVI, respectfully requests that this Honorable

Court enter an order, in limine, barring any and all voir dire, statement, testimony, questioning,

impeachment, cross-examination, expert testimony, argument, direct or indirect, by inuendo or

otherwise, at any time during the course of the trial of this action, before any member of the

venire, a panel, or the jury, of evidence or arguments which might suggest to the jury that any

Plaintiff, or any other party or third person was the sole proximate cause of the subject accident.

Respectfully Submitted, ROMANUCCI & BLANDIN, LLC

By: __________________________________ Attorney for Plaintiff

Michael E. Holden ROMANUCCI & BLANDIN, LLC 33 North La Salle Street Suite 2000 Chicago, Illinois 60602 312/458-1000 Atty. No.: 35875

Sample MIL 003 CBA5



) )

) Defendants. ) )

PLAINTIFF’S MOTION IN LIMINE NO. 2 BAR EVIDENCE OF ISSUANCE OF CERTIFICATE OF OCCUPANCY AND/OR NO

CITATIONS FOR CODE VIOLATIONS


ROMANUCCI & BLANDIN, and moves this Honorable Court to bar, in limine, any and all voir

dire, statement, testimony, questioning, impeachment, cross-examination, expert testimony,

argument, direct or indirect, by inuendo or otherwise, at any time during the course of the trial of

this action, before any member of the venire, a panel, or the jury, of evidence or arguments

which might suggest to the jury that Defendant’s building was inspected, that Defendant was

issued a certificate of occupancy, or that Defendant was not issued any citation of the building

code. In support thereof, Plaintiff states as follows:

1. Plaintiff anticipates that Defendant will offer testimony or evidence, make

reference to, or argue that Pizano’s was inspected prior to opening, that a certificate of

occupancy was issued to Defendant, or that Defendant was not issued any citations for violations

of the building code.

Sample MIL 004 CBA6

2. Such evidence, testimony, reference, or argument should be barred because: (1)

such evidence is inadmissible and irrelevant to show non-existence of the violation; (2)

Defendant has not retained any expert witnesses who can testify that it would be reasonable for

Pizano’s to rely on the building inspector regarding knowledge of building code violations; and

(3) such evidence would prejudice the jury on the ultimate issue of fact in this matter.

3. Any attempt by the Defendant to offer evidence or testimony that a certificate of

occupancy was given to Pizano’s or that Pizano’s was not cited for any violation of the Glenview

Building Code is irrelevant to the question of whether or not a violation existed at the time of the

occurrence. It is undisputed that the handrail that was in place at the time of the occurrence was

not in compliance with the requirement that it extend beyond the bottom riser. Further, the

temporary certificate of occupancy issued by the Village of Glenview prior to the occurrence

shows that, as far as stairways are concerned, they are only inspected to determine if they are

blocked or used for storage (see Fire Inspection Report, attached hereto as Exhibit A). It in no

way states that the stairway or handrail were inspected for compliance with the code. As such,

any inference that the issuance of the certificate of occupancy directly or indirectly speaks to the

condition of the handrail is patently false. The issuance of the certificate of occupancy is wholly

irrelevant to this inquiry. Moreover, to allow Defendant to testify that they were issued a were

not made aware of the specific violation of the building code indirectly vouches for the

capabilities, the veracity, and the credibility of the inspector performing the inspection of the

property without affording Plaintiff an opportunity to cross-examine.

4. Additionally, Defendant chose not to retain any expert witnesses in this matter.

Defendant could have hired an expert to testify as to the defect alleged by Plaintiff, the

reasonableness of reliance on a building inspection, or that the handrail was in some way

Sample MIL 005 CBA7

reasonable despite its non-compliance with the code. However, it chose not to do so. Defendant

cannot now be allowed to back-door such opinion testimony in by stating that the building was

not cited for any handrail violation or that the building was issued a certificate of occupancy

without giving Plaintiff an opportunity to depose or cross-examine any witness giving that

opinion. Allowing such evidence would severely prejudice Plaintiff’s ability to present her case

in a fair and impartial manner by eliminating the right of the Plaintiff to cross-examine such

witnesses.

5. Lastly, allowing the Defendant to offer such evidence would prejudices the jury

on an ultimate question in the case: whether the Defendant’s conduct was negligent. See Allen v.

Yancy, 57 Ill.App.2d 50, 60 (1st Dist. 1965). A witness cannot give his opinion about an ultimate

issue in the case; ultimate issues must be decided by the jury. Wawryszyn v. Illinois Centeral R.

Co., 10 Ill.App.2d 394, 403 (1st Dist. 1956).

6. In Allen v. Yancy, a police officer was called to the stand by defense counsel and

was asked whether any tickets were issued following the investigation of the automobile

accident. Id. at 57. The police officer responded that no summons were issued and the plaintiff

objected to no avail. Id. The Appellate Court of Illinois held that the lower court improperly

received into evidence the statement of the officer. Id. at 59. Furthermore, because the

testimony had not been stricken, the jury could have improperly inferred that in the officer’s

opinion the defendant was not at fault. Id. The court found that the conclusion it reached was

fully consistent with other Illinois case law. Id. (citing Giles v. Kuennen, 50 Ill.App.2d 389, 394

(2d Dist. 1964)).

7. While Allen dealt with a motor vehicle accident, the proposition it stands for is

directly on point. There, an officer was not allowed to testify that a traffic citation was not

Sample MIL 006 CBA8

issued to the driver. Here, Plaintiff anticipates Defendant will attempt to offer evidence that a

citation for a building code violation was not issued to the restaurant. Here, like in Allen, such

testiomony is improper because it invades the province of the jury as to the ultimate issue of

whether Pizano’s used reasonable care in the ownership and operation of the restaurant.

Allowing Defendant to offer any such testimony may allow the jury to improperly infer that

Defendant’s conduct with regard to the handrail was reasonable.


Court enter an order in limine, barring any and all voir dire, statement, testimony, questioning,

impeachment, cross-examination, expert testimony, argument, direct or indirect, by inuendo or


venire, a panel, or the jury, of evidence or arguments which might suggest to the jury that

Defendant’s building was inspected, that Defendant was issued a certificate of occupancy, or that

Defendant was not issued any citation of the building code.




Sample MIL 007 CBA9



) )

) Defendants. ) )

PLAINTIFF’S MOTION IN LIMINE NO. 3 BARRING EVIDENCE OF PLAINTIFF’S CONSUMPTION OF ALCOHOL


ROMANUCCI & BLANDIN, LLC, and moves this Honorable Court to bar, in limine, any and

all voir dire, statements, testimony, questioning, impeachment, cross-examination, expert

testimony, argument, direct or indirect, by innuendo or otherwise, at any time during the course

of the trial of this action, before any member of the venire, panel, or jury, of evidence or

arguments which might suggest to the jury that the Plaintiff consumed alcohol at any time prior

to the occurrence. In support thereof, Plaintiff states as follows:

1. Plaintiff anticipates that Defendant may attempt to offer testimony or evidence

that Plaintiff had consumed alcohol while she was at Pizano’s on the date of the occurrence.

Further, Plaintiff anticipates that Defendant will argue that Plaintiff’s consumption of alcohol, in

some way, contributed to Plaintiff’s fall.

2. However, such evidence is improper unless the evidence is sufficient to support a

jury determination of intoxication as defined in PIE 150.15.

Sample MIL 008 CBA10

3. In order to avoid the unfair prejudicial effect often resulting from the mere

mention of alcohol, a party may not introduce evidence of alcohol upon the issue of negligence

unless the evidence is sufficient to support a jury determination of intoxication as defined in IPI

150.15. Ballard v. Jones, 21 Ill.App.3d 496 (1974); Sullivan-Coughlin v. Palos Country Club,

349 Ill.App.3d 553 (2004). The record must contain evidence that the individual consumed

alcohol and behaved unusually or inappropriately or evidence in the form of an opinion as to

such individual’s level of intoxication. Id. It must be show that the alcohol resulted in an actual

impairment of mental or physical abilities and a corresponding diminuation in ability to act with

ordinary care. Weigman v. Hitch-Inn Post, of Libertyville, 308 Ill.App. 3d 789 (1999); McGrew

v. Pearlman, 304 Ill.App.3d 697 (1999). Evidence as to drinking not sufficient to support a

finding of intoxication is so highly prejudicial as to be treated as reversible error. Miller v. CTA,

3 Ill.App.2d 223 (1959).

4. Furthermore, a defendant is required to introduce medical expert testimony or

other competent evidence of a causal connection between any consumption of alcohol and the

injury at issue. Lagestee v. Days Inn Mgmt. Co., 303 Ill.App. 3d 935 (1999). Defendant’s

evidence must be sufficient to support a finding by a reasonable jury of the causal connection.

Wiker v. Pieprzyca-Berkes, 314 Ill.App.3d 421 (2000).

5. Here, Defendant cannot offer any evidence that Joanne Salvi’s consumption of

alcohol on February 11, 2008 rose to the level of intoxication. To the contrary, Defendant’s own

employees testified at their deposition that, based upon their interaction with Joanne Salvi, they

did not believe her to be intoxicated. Likewise, Defendants have not retained any experts in this

matter, or will offer the opinion from any witness that Joanne Salvi’s consumption of alcohol

either caused or contributed to her fall in any way.


6. As such, any evidence, testimony, argument, etc. that Plaintiff had consumed any

alcohol on February 11, 2008 is highly prejudicial and should be barred.


Court enter an order, in limine, barring any and all voir dire, statements, testimony, questioning,

impeachment, cross-examination, expert testimony, argument, direct or indirect, by innuendo or


venire, panel, or jury, of evidence or arguments which might suggest to the jury that the Plaintiff

consumed alcohol at any time prior to the occurrence.







) )

) Defendants. ) )

PLAINTIFF’S MOTION IN LIMINE NO. 5 BAR ANY COMMENT, STATEMENT, REFERENCE, OR EVIDENCE THAT

ACCIDENT WOULD HAVE OCCURRED EVEN IF COMPLIED WITH CODE


ROMANUCCI & BLANDIN, and moves this Court in limine to bar any and all voir dire,

statements, testimony, questioning, impeachment, cross-examination, expert testimony,

argument, direct or indirect, by innuendo or otherwise, at any time during the course of the trial

of this action, before any member of the venire, panel, or jury, of evidence or arguments which

might suggest to the jury that this accident would have happened regardless of Defendant’s

compliance with building code. In support thereof, plaintiffs state as follows:

1. Plaintiff anticipates that Defendant will attempt to offer evidence or testimony,

make reference to or suggest, or argue to the jury that Joanne Salvi’s fall would have occurred

even if Defendant had complied with the applicable building code.

2. Such evidence, testimony, suggestion, reference, or argument should be barred as

being speculative in nature. This is especially true in light of the fact that there were no eye-

witnesses to the occurrence to say how Ms. Salvi fell, apart from Ms. Salvi herself. Further,


Defendant has disclosed no expert witness to offer opinions as to causation, or to opine that Ms.

Salvi’s fall was not as result of Defendant’s failure to comply with the building code. Any such

testimony by any other lay witness in this case would constitute improper lay opinion testimony.

3. Circumstantial evidence must justify an inference of probability, not mere

possibility. Committee Comments to I.P.I. 3.04., citing McCullough v. Gallaheer & Speck, 254

Ill.App.3d 941 (1st Dist. 1993). Similarly, herein plaintiff seeks to prohibit defendants from

offering opinions and arguing these theories as there is simply no evidence, direct or

circumstantial, on any other mechanism of injury. It is clear that although anything is

“possible,” not all things are within a reasonable degree of certainty, and that the introduction of

mere “possibilities” would have a tendency to mislead and confuse the jury, thereby creating

false issues for their resolution. Thus, plaintiff seeks to insure that all opinions offered upon the

trial of this cause are based on a reasonable degree of certainty and do not consist of mere

speculation, guess, or conjecture as to what is “possible.”

4. Furthermore, our appellate courts have held that expert opinion is only as valid as

the reasons for the opinion. Modelski v. Navistar, 302 Ill.App.3d 879, 707 N.E.2d 239 (1999).

Testimony grounded in guess, surmise, or conjecture not being regarded as proof a fact, is

irrelevant as it has no tendency to make the existence of a fact more or less probable. Id. Expert

opinions based upon the witness’s guess, speculation, or conjecture as to what he believed might

have happened are inadmissible. Id.

5. Here, Defendant chose not to disclose any expert witnesses. As such, it cannot

now rely on lay witnesses called at trial to offer opinions only properly offered by qualified

experts. Specifically, Defendant cannot seek to offer opinions from lay witnesses regarding the


mechanism of Ms. Salvi’s fall when no such witness saw, or even claims to have saw Ms. Salvi’s

fall. Any such testimony would be purely speculative in nature.


Court enter an order barring any and all voir dire, statements, testimony, questioning,



venire, panel, or jury, of evidence or arguments which might suggest to the jury that this accident

would have happened regardless of Defendant’s compliance with building code.







) )

) Defendants. ) )

PLAINTIFFS’ MOTION IN LIMINE NO. 6 BAR ABSENCE OF PRIOR COMPLAINTS


ROMANUCCI & BLANDIN, LLC, and moves this Honorable Court, in limine, to bar mention,

reference, remark or interrogation, either directly or indirectly in pleadings, documents or by

comments of parties or counsel in the presence or hearing of the jury, during the course of this

trial that the Defendant had not received complaints regarding the handrail prior to Plaintiff’s

fall. In support thereof, Plaintiff states as follows:

1. Plaintiff anticipates that Defendant will attempted to offer testimony or evidence

regarding an absence of any prior complaints regarding the subject handrail prior to Plaintiff’s

fall.

2. Such evidence or testimony is irrelevant as to the issue of whether Defendant was

negligent on the date of the occurrence.

3. Evidence which is not relevant is not admissible. Ill. R. Evid., R. 402. Relevant

evidence means evidence having any tendency to make the existence of a fact that is of


consequence more probable or less probable than it would be without the evidence. Ill. R. Evid.,

R. 401.

4. The fact that Defendant did not receive complaints regarding the handrail prior to

February 11, 2008 has no tendency to make the fact that the handrail, as it existed on February

11, 2008, was defective any more probable or less probable. As such, such testimony or

evidence should be barred.

WHEREFORE, Plaintiff, JOANNE SALVI, moves that this Honorable Court, enter an

order barring mention, reference, remark or interrogation, either directly or indirectly in

pleadings, documents or by comments of parties or counsel in the presence or hearing of the jury,

during the course of this trial that the Defendant had not received complaints regarding the

handrail prior to Plaintiff’s fall.


By: ________________________________ Attorney for Plaintiff

Michael E. Holden ROMANUCCI & BLANDIN, LLC 33 North La Salle Street; Suite 2000 Chicago, Illinois 60602 Tel: (312) 458-1000 Fax: (312) 458-1004 Atty. No.: 35875




) )

) Defendants. ) )

PLAINTIFFS’ MOTION IN LIMINE NO. 7 TO BAR TESTIMONY THAT DEFENDANT RELIED ON ARCHITECT, BUILDING

INSPECTOR, CONTRACTOR, OR OTHER NON-PARTY TO ADVISE OF VIOLATION OF BUILDING CODE


ROMANUCCI & BLANDIN, LLC, and move this Honorable Court, in limine, to enter an order

barring the defendants from introducing any evidence, reference, argument, inference, or

questioning regarding the defendant relying on an architect, building inspector, contractor, or

other non-party to advise them of a violation of the building code. In support thereof Plaintiffs

state as follows:

1. Plaintiff anticipates Defendant will offer evidence or testimony that Defendant

relied on an architecht, building inspector, contractor, or some other non-party in advising them

of any building code violations, and that they were never advised as such.

2. Any assertion by Defendant that it relied on an architect, contractor, building

inspector, or other non-party in advising it of building code violations would essentially be

Defendant criticizing the conduct of some non-party. Plaintiff moves to bar such evidence,

questions, reference, comment, or argument on the grounds that the conduct of various non-


parties is not at issue in this case, and is not relevant to the trial of this matter. Further, Plaintiff

moves to bar such evidence, questions, reference, comment, or argument based on the fact that

there is absolutely no evidence in this case that any architect, building inspector, contractor, or

some other non-party owed a duty to the Plaintiff, that any of these non-parties breached any

duty to the Plaintiff, or that the conduct of any of these non-parties was a proximate cause of

Plaintiff’s fall and injuries. To allow Defendants to now point at some other company, claiming

that this company was responsible for the accident or owed a duty to the Plaintiff only serves to

confuse the jury on the issues present, and, more importantly, is not supported by the evidence.

3. Plata Corp. was a sub-consultant hired by Edwards & Kelsey on the subject

project. More or less, Plata was hired to review the safety programs for the project, but Earth

Tech was hired to be the actual safety inspectors on the jobsite. At no time since this case was

filed was Plata Corp. a party to this case.

4. Defendants have not offered any expert opinions or testimony that any of these

non-parties had any responsibility for safety at Pizano’s, owed a duty to Plaintiff in any capacity,

breached a duty to Plaintiff, or that these non-parties’ conduct was in any way a proximate cause

of Plaintiff’s fall and injuries.

5. Illinois Rule of Evidence 401 defines relevant evidence as “evidence having any

tendency to make the existence of any fact that is of consequence to the determination of the

action more probable or less probable that it would be without the evidence.” Ill. R. Evid., 401.

Illinois Rule of Evidence 402 provides that evidence which is not relevant is not admissible. Ill.

R. Evid., 402.

6. In the case at bar, whether these non-parties had any negligence in this case does

not have any tendency to make any fact that is of consequence, namely any fact that pertains to


whether Defendants were negligent, any more or less probable. These non-parties have not been

named as a as a defendant (or third party defendant) at any time during the course of this case,

and are not a party at the trial of this matter. As such, the jury will not be asked to weigh any

purported negligence of these entities during their deliberations of this case, and any evidence,

suggestion, or reference regarding these non-parties as having responsibility to prevent

Plaintiff’s fall, that these non-parties’ conduct was a proximate cause of the occurrence, or that

they were responsible for safety should be barred.

7. Even if this Court finds this evidence to be relevant under Rule 401, this evidence

should be barred under Rule 403 as its prejudicial effect outweighs any probative value it may

have. Illinois Rule of Evidence 403 states that “evidence may be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or needless presentation

of cumulative evidence.” As such, even if this Court deems evidence of these non-parties’

negligence relevant to the trial of this case, such testimony should be barred as being unfairly

prejudicial and threatens to confuse the issues and mislead the jury in this case.

8. Evidence of non-parties’ negligence will only serve to prejudice the jury, will

create the potential that the jury will confuse the issues during deliberation, and will likely

mislead the jury as to whose negligence to consider during deliberations. To allow Defendants

to suggest that someone else was responsible for safety at Pizano’s, or that Defendant relied on

others for safety, creates the impression that these non-parties had a duty to prevent the evidence.

Such suggestion is not supported by the factual evidence in this case, and is not supported by the

expert testimony in this matter.


WHEREFORE, Plaintiff, JOANNE SALVI, respectfully requests that this Honorable Court enter

an order barring the Defendant from introducing any evidence, reference, argument, inference, or

questioning regarding the defendant relying on an architect, building inspector, contractor, or

other non-party to advise them of a violation of the building code.



Michael E. Holden ROMANUCCI & BLANDIN, LLC 33 North La Salle Street; Suite 2000 Chicago, Illinois 60602 Tel: (312) 458-1000 Fax: (312) 458-1004 Atty. No.: 35875


IN THE CIRCUIT COURT FOR THE TWELFTH JUDICIAL CIRCUIT WILL COUNTY, ILLINOIS

ZACHARY MONAHAN, ) ) Plaintiff, ) ) vs. ) No.: 07 L 563 ) JOSEPH GIORDANO, M.D., et al. ) ) Defendants. )

PLAINTIFFS’ MOTION IN LIMINE NO. 1 TO BAR CUMULATIVE EXPERT TESTIMONY

NOW COMES the Plaintiff, ZACHARY MONAHAN, by and through his attorneys,

ROMANUCCI & BLANDIN, LLC, and moves this Honorable Court, in limine, to bar

duplicative and cumulative testimony by Defendants’ experts. In support thereof, Plaintiff states

as follows:

1. This is a medical malpractice action arising out of Defendant’s failure to timely

diagnose and treat Plaintiff’s bacterial endocarditis in early 2001, resulting in Plaintiff suffering a

stroke on May 15, 2001.

2. On September 21, 2010, Defendants disclosed their 213(f)(3) witnesses.

Combined, Defendants disclosed a total of 4 controlled expert witnesses (Dr. Giordano, Dr.

Czepiel, Dr. Schwer, and Dr. Flaherty), including 2 retained expert witnesses (Schwer and

Flaherty).

3. Each of these witnesses purports to offer testimony as to whether Joseph

Giordano, D.O. and Edward Health Ventures complied with the standard of care in the care and

treatment of Zachary Monahan in the Spring of 2001. The opinions of these 4 witnesses are

duplicative of each other, and are nothing more than Defendants’ attempt to offer several


witnesses to testify as to the relevant standard of care. This is especially apparent in Defendant’s

disclosures, which states that these witnesses “will testify consistent with the opinions and

testimony of Drs. Schwer and Flaherty,” acknowledging that such testimony would be

duplicative of each other.

4. Illinois Rule 403 states that relevant evidence may be excluded if the probative

value is outweighed by, among other things, needless presentation of cumulative evidence (See

also, Gill v. Foster, 157 Ill.2d 304, 313 (1993). Here, these witnesses are needlessly cumulative

of one another.

5. Further, multiple expert witnesses expressing the same opinions on a subject is

needlessly cumulative and will be more prejudicial than probative in the matter. It is within this

Court’s sound discretion to exclude cumulative evidence and bar testimony from an expert that

would be duplicative. Dillon v. Evanston Hospital, 199 Ill.2d 483 (2002).

6. In Dillon, a Illinois Supreme Court case, the trial court barred one of the

Defendant’s expert witnesses, who purportedly was going to offer testimony that the Defendant

doctor complied with the standard of care, on the grounds that this testimony was cumulative

with Defendant’s other expert witness. 199 Ill.2d at 494. The appellate court found no abuse of

discretion in the trial court’s ruling. Id. The Supreme Court affirmed, stating, “the exclusion of

cumulative evidence is within the discretion of the trial court, whose ruling will not be reversed

absent a clear abuse of that discretion. [citations omitted] This discretion includes limiting the

number of expert witnesses. [citations omitted].” Id. at 495. On appeal, Defendant argued that it

was “uneven treatment of the parties” to bar its expert. Id. at 495. The Supreme Court stated

“We cannot accept this contention. As in the appellate court, Dr. Sener and the hospital do not

indicate how the evidence that Dr. Raaf would have presented, i.e., his opinion that Dr. Sener


had met the medically relevant standard of care, was not cumulative to the testimony of Dr.

Vasquez.” Id at 496.

7. Defendants should be required to choose which of the witnesses, along with the

Defendant, is going to offer testimony as to the standard of care and that Defendants complied

with it. Defendants should not be afforded the opportunity to present trial testimony from Dr.

Giordano as to whether Dr. Czepiel complied with the standard of care, and from Dr. Czepiel as

to whether Dr. Giordano complied with the standard of care, in addition to presenting 2 retained

experts to testify that Dr. Giordano and other physicians from Edward Medical Group complied

with the standard of care. In attempting to do so, Defendants are seeking to have 3 bites at the

apple for each Defendant when Plaintiff gets only 1. Considerations of fundamental fairness

among the parties also require that Defendant be limited in their presentation of these witnesses.

8. In the case at bar, the disclosed testimony of the Defendants’ controlled expert

witnesses is cumulative and should be stricken insofar as the witnesses offer the same testimony

relating to the standard of care, deviation therefrom, causation and damages, as well as

duplicitous testimony regarding the care and treatment of plaintiff. Such testimony would

unfairly prejudice Plaintiffs and would be a waste of the trial court’s time.

9. Here, like in Dillon, Defendants cannot show that the testimony of Dr. Schwer

and Dr. Flaherty is not cumulative. As such, Defendant should be barred from offering any

cumulative testimony on the issue of whether Defendants complied with the standard of care in

this matter.

WHEREFORE, Plaintiff, ZACHARY MONAHAN, respectfully requests that this

Honorable Court enter an order barring the cumulative and duplicative testimony of Defendants’

witnesses, and for any further relief that this Court deems appropriate and just.




Stephan D. Blandin Antonio M. Romanucci ROMANUCCI & BLANDIN, LLC 33 North La Salle Street; Suite 2000 Chicago, Illinois 60602 Tel: (312) 458-1000 Fax: (312) 458-1004




PLAINTIFF’S MOTION IN LIMINE NO. 2 TO BAR REFERENCE, COMMENT, ARGUMENT, OR EVIDENCE REGARDING

OTHER PHYSICIANS NOT HEARING HEART MURMUR



Defendants, their attorneys and all other witnesses heard upon the trial of this cause from

offering any evidence, questions, testimony, reference, comment, or argument that other

Physicians did not hear Zachary Monahan’s heart murmur prior to the stroke. In support thereof,

Plaintiff states as follows:

1. One of the allegations in this matter is the that the Dr. Giordano, a primary care

clinician, failed to properly listen and recognize Zachary Monahan’s pre-existing heart murmur

prior to his diagnosis of bacterial endocarditis and stroke.

2. It is anticipated that Defendants may offer evidence, ask questions, make

reference, comment, or argue that other physicians who treated Zachary Monahan prior to the

stroke on May 15, 2001, also failed to recognize and/or hear Plaintiff’s heart murmur.

3. Plaintiff moves to bar such evidence, questions, reference, comment, or argument

on the grounds that whether other physicians heard or did not hear Plaintiff’s heart murmur, prior


to the stroke on May 15, 2001, is not at issue in this case and is not relevant to the trial of this

matter.





R. Evid., 402.

5. In the case at bar, whether other physicians that are not primary care clinicians,

that treated Zachary Monahan listened for, heard, or recognized Zachary Monahan’s heart

murmur prior to May 15, 2001, has no bearing on the issue of whether Defendants heard,

listened for, or recognized Zachary Monahan’s heart murmur.

6. Further, whether other physicians did or did not listen, hear, or recognize Zachary

Monahan’s heart murmur is not indicative of the standard of care required of the Defendants.

There is no testimony from any witness that these other physicians did or did not comply with

the standard of care in their treatment of Plaintiff. Without testimony indicating that the standard

of care of these other physicians required or did not require them to listen, hear, and recognize

Zachary Monahan’s heart murmur, and testimony that the same standard of care that applied to

these physicians also applies to the Defendants, testimony regarding whether these physicians

heard, listened for, or recognized Plaintiff’s heart murmur is nothing more than conjecture and

the Defendants saying “if they didn’t, why should we.”

7. Should the Court find that such testimony is relevant, it should still be barred

under Illinois Rule of Evidence, 403. Illinois Rule of Evidence 403 states that relevant evidence

may be excluded if its probative value is substantially outweighed by the danger of unfair


prejudice, confusion of the issues, or misleading the jury. Ill. R. Evid., 403. Here, the risk that

the jury will take such evidence as evidence of the standard of care required of the Defendants,

without the required expert testimony opining as such, substantially outweighs any probative

value the evidence may have.


Honorable Court enter an order barring Defendants, their attorneys and all other witnesses heard

upon the trial of this cause from offering any evidence, questions, testimony, reference,

comment, or argument that other Physicians did not hear Zachary Monahan’s heart murmur prior

to the stroke, and for any further relief this Court deems appropriate and just.



Stephan D. Blandin Antonio M. Romanucci Michael E. Holden ROMANUCCI & BLANDIN, LLC 33 North La Salle Street Suite 2000 Chicago, Illinois 60602 Tel: (312) 458-1000 Fax: (312) 458-1004




PLAINTIFF’S MOTION IN LIMINE NO. 3 TO BAR REFERENCE, COMMENT, ARGUMENT, OR EVIDENCE REGARDING

OTHER PHYSICIANS WERE NEGLIGENT IN THEIR CARE OF PLAINTIFF



Defendants, their attorneys and all other witnesses heard upon the trial of this cause from

offering any evidence, questions, testimony, reference, comment, or argument that other

Physicians were negligent in their care of Zachary Monahan. In support thereof, Plaintiff states

as follows:

1. It is anticipated that Defendants may offer evidence, ask questions, make

reference, comment, or argue that other physicians who treated Zachary Monahan failed to

comply with the standard of care required of them, and that such failure is the cause of Plaintiff’s

injuries.

2. Plaintiff moves to bar such evidence, questions, reference, comment, or argument

on the grounds that whether other physicians did or did not comply with the standard of care

required of them is not at issue in this case, and is not relevant to the trial of this matter.






R. Evid., 402.

4. In the case at bar, whether other physicians whom treated Zachary Monahan were

negligent in their care of Zachary Monahan does not have any tendency to make any fact that is

of consequence, namely any fact that pertains to whether Defendants were negligent, any more

or less probable.

5. Further, whether other physicians were or were not negligent in their care of

Zachary Monahan is not supported by any expert evidence in this case. Plaintiff is not offering

any opinion testimony that any physician, other than the Defendants herein, failed to comply

with the standard of care. Additionally, Defendants have not offered any expert testimony that

relates to the standard of care as it applies to any physician outside of the parties to this case.

There is no testimony from any witness that these other physicians did or did not comply with

the standard of care in their treatment of Plaintiff. Without the required expert testimony, such

testimony, argument, or comment would be nothing more than conjecture. As such, it should be

barred from the trial of this matter.


Honorable Court enter an order barring Defendants, their attorneys and all other witnesses heard

upon the trial of this cause from offering any evidence, questions, testimony, reference,


comment, or argument that other Physicians did not hear Zachary Monahan’s heart murmur prior

to the stroke, and for any further relief this Court deems appropriate and just.



Stephan D. Blandin Antonio M. Romanucci Michael E. Holden ROMANUCCI & BLANDIN, LLC 33 North La Salle Street Suite 2000 Chicago, Illinois 60602 Tel: (312) 458-1000 Fax: (312) 458-1004




PLAINTIFF’S MOTION IN LIMINE NO. 4 TO BAR ANY EVIDENCE, COMMENT, REFERENCE, OR ARGUMENT

REGARDING PLAINTIFF’S ANGER MANAGEMENT ISSUES, POLICE CALLS, AND VIOLENT OUTBURSTS OR PHYSICAL ALTERCATIONS


ROMANUCCI & BLANDIN, LLC, and moves this Honorable Court, in limine, to enter an order

barring any evidence, comment, reference, or argument regarding any of Zachary Monahan’s

anger management issues, police calls, or violent outbursts with his ex-wife or other family

members. In support thereof, Plaintiff states as follows:

1. It is anticipated that Defendants may seek to offer testimony or evidence, or make

comment or reference to, or argument regarding Zachary Monahan’s anger management issues,

police calls, and/or violent outbursts and actions with his ex-wife or other family members.

2. Such evidence is not relevant to the issues in this case, and would be offered for

no other purpose than to prejudice the jury against Mr. Monahan.

3. There is suggestion in the medical records and at the depositions of Zachary

Monahan, his ex-wife, his mother, and his grandmother, that, since suffering the stroke in May of

2001, that Zachary Monahan has had difficulty controlling his anger. Further, there is suggestion

in the records and testimony that, because of his anger management issues, that there have been


violent outbursts and physical altercations with Plaintiff’s ex-wife and other family members,

and that the police have been called on Mr. Monahan because of these outbursts and altercations.

However, in this case, Plaintiff is not making any claim for damages relating to the anger

management issues, and is not claiming that the stroke was the cause of the anger management

issues, police calls, violent outbursts, and physical altercations.

4. Under Illinois Rule of Evidence 401, relevant evidence is limited to evidence

having any tendency to make the existence of a fact that is of consequence any more probable or

less probable that it would be without the evidence.

5. Because Plaintiff is not making a claim for any damages relating to Mr.

Monahan’s anger issues, any relevance that these items may have had is removed. Whether Mr.

Monahan has had anger management issues, whether there have been violent outbursts and/or

altercations, and whether police have been called for Zachary Monahan has no tendency to make

any fact of consequence any more or less probable, and is not relevant under Illinois Rule of

Evidence 401. As such, all such evidence, comment, reference, or argument of any of such

conduct should be barred.

6. Further, any relevance that these items may have to the trial of this matter are

substantially outweighed by the prejudicial impact that this evidence would have on the jury. As

such, even if relevant, this evidence should be barred under Illinois Rule of Evidence 403.

WHEREFORE, Plaintiff, ZACHARY MONAHAN, moves this Honorable Court to enter

an order barring any evidence, comment, reference, or argument regarding any of Zachary


Monahan’s anger management issues, police calls, or violent outbursts with his ex-wife or other

family members.



Stephan D. Blandin Antonio M. Romanucci Michael E. Holden ROMANUCCI & BLANDIN, LLC 33 North La Salle Street; Suite 2000 Chicago, Illinois 60602 Tel: (312) 458-1000 Fax: (312) 458-1004




PLAINTIFF’S MOTION IN LIMINE NO. 5 TO BAR ANY EVIDENCE, COMMENT, ARGUMENT, OR REFERENCE TO

ZACHARY MONAHAN’S FAMILY HISTORY OF BIPOLAR DISORDER


ROMANUCCI & BLANDIN, LLC, and moves this Honorable Court, in Limine, to bar

Defendant from offering any evidence or making any comment, reference to, or argument

regarding Zachary Monahan’s family history of bipolar disorder. In support thereof, Plaintiff

states as follows:

1. It is anticipated that Defendants may attempt to offer evidence or make comment,

reference, to, or argument that Zachary Monahan’s family history of bipolar disorder is the cause

of his emotional suffering and/or psychological damages.

2. In the medical records of Zachary Monahan that have been disclosed throughout

the discovery process of this case, there is mention that Zachary Monahan has a family history of

bipolar disorder. However, nowhere in the medical records or in the testimony of Zachary

Monahan’s treating physicians, does any physician suggest that Zachary Monahan personally

had a history of bipolar disorder at any time prior to the May 15, 2001 stroke. Further, there is

no reference in any of the records to any diagnosis of bipolar disorder for Zachary Monahan.


3. Additionally, no physician that has offered testimony in this matter suggests that

Zachary Monahan’s emotional and psychological issues are in any way related to this family

history of bipolar disorder.

4. As such, any evidence, reference, comment, or argument regarding Plaintiff’s

family history of bipolar disorder is not relevant under Illinois Rule of Evidence 401, and should

be barred from mention at the trial of this matter.


an order barring any evidence, comment, reference to, or argument regarding Zachary

Monahan’s bipolar disorder, and for any further relief this Court deems appropriate and just.







PLAINTIFF’S MOTION IN LIMINE NO. 7

TO BAR EVIDENCE, REFERENCE, ARGUMENT, INFERENCE, OR QUESTIONING REGARDING DEFENDANT OR DEFENSE COUNSEL: (1) FEELING BAD OR

SYMPATHETIC TOWARDS THE PLAINTIFF; (2) THAT THEY “TRIED THEIR BEST”; (3) OR THAT THEY ARE “SAVED PLAINTIFF’S LIFE”


ROMANUCCI & BLANDIN, and moves this Honorable Court, in limine, to enter an order

barring the defendants from introducing any evidence, reference, argument, inference, or

questioning regarding defense counsel or the defendant: (1) “feeling bad” for or being

sympathetic towards the Plaintiff; (2) that Defendants “tried their best”; or (3) that Defendants

“saved Plaintiff’s life.”

Any such evidence, reference, inference, questioning, or argument has no relevance

under Illinois Rule of Evidence 401 (See also People v. Monroe, 66 Ill.2d 317 (1977)). Whether

or not defense counsel or the defendant “feels bad” about this case is irrelevant and has no

bearing on the liability of the defendants. Likewise, whether the Defendants tried their best also

has no relevance in this case. Further, Defendants cannot claim to have “saved Plaintiff’s life”

since the emergent situation that put Plaintiff’s life at risk was created by the negligence of the

Defendants. Even if this Court find that such comments are relevant, the prejudice to the

Plaintiff and the risk that such comments would be improperly considered by the jury warrants


its exclusion under Illinois Rule of Evidence 403 (See also Gill v. Foster, 157 Ill.2d 304 (1993)).

Such comments and/or argument would only serve to attempt to elicit sympathy from the jury.

WHEREFORE, Plaintiffs, ZACHARY MONAHAN, moves this Honorable Court to

enter an order barring the defendants from introducing any evidence, reference, argument,

inference, or questioning regarding defense counsel or the defendant: (1) “feeling bad” for or

being sympathetic towards the Plaintiff; (2) that Defendants “tried their best”; or (3) that

Defendants “saved Plaintiff’s life,” and for any further relief this Court deems appropriate and

just.







PLAINTIFF’S MOTION IN LIMINE NO. 11 TO BAR ANY EVIDENCE, COMMENT, REFERENCE, OR ARGUMENT THAT PLAINTIFF SHOULD HAVE VOLUNTEERED HIS HISTORY OF A MURMUR



barring any evidence, comment, reference, or argument that Zachary Monahan should have

volunteered his history of a heart murmur without questions from his physicians regarding pre-

existing cardiac problems:

1. It is anticipated that Defendants may seek to offer testimony or evidence, or make

comment or reference to, or argument that Zachary Monahan had the duty or responsibility to

volunteer his pre-existing heart murmur without questions from his doctors about any pre-

existing history of cardiac problems.

2. There is no testimony in this matter from any expert witness that Zachary

Monahan had an affirmative duty to notify his physicians of a history of heart murmurs absent

direct questions from his physicians regarding his cardiac history.

3. Further, there are no medical records which indicate that Zachary Monahan was

ever asked directly about any history of cardiac issues, or that Zachary Monahan ever

specifically denied having any cardiac problems.


4. As such, any attempt by Defendants to place a duty on Zachary Monahan is not

supported by the evidence in this case and would be nothing more than an attempt to place

comparative negligence on Plaintiff, which in not at issue in a medical malpractice case.


an order barring any evidence, comment, reference, or that Zachary Monahan should have

volunteered his history of a heart murmur without questions from his physicians regarding pre-

existing cardiac problems, and for any further relief that this Court deems appropriate and just.







PLAINTIFF’S MOTION IN LIMINE NO. 12 TO STRIKE TESTIMONY OF DR. CLARK THAT ALL BICUSPID AORTIC VALVES

DO NOT PRODUCE A MURMUR



striking the testimony of Dr. Stanley Clark that all bicuspid aortic valves do not produce a

murmur. In support thereof, Plaintiff states as follows:

1. One of the issues in this matter is whether Zachary Monahan had an audible heart

murmur prior to the May 14, 2001 admission to Edward Hospital. The evidence in this case will

show that Zachary Monahan had a congenital bicuspid aortic valve prior to the stroke.

2. At the evidence deposition of Stanley Clark, Plaintiff’s treating cardiologist, Dr.

Clark testified that all bicuspid aortic valves do not produce an audible murmur.

3. Plaintiff moves to strike such testimony because: (1) whether all bicuspid aortic

valves produce an audible murmur is not at issue in this case and is not relevant to whether

Zachary Monahan’s bicuspid aortic valve produced an audible murmur prior to the May 14, 2001

admission; and (2) Dr. Clark’s testimony is a volunteered and undisclosed opinion that was not

in response to any question seeking an opinion on the matter.






R. Evid., 402.

5. In the case at bar, whether, generally speaking, all bicuspid aortic valves produce

an audible murmur has no bearing on the issue of whether Zachary Monahan’s congenital

bicuspid aortic valve produced an audible murmur prior to the May 14, 2001 admission.

6. In offering this opinion, Dr. Clark did not speak of the specifics of Zachary

Monahan’s bicuspid aortic valve, only testifying that, generally, all such conditions do not

always produce an audible murmur. This testimony has no tendency to make it any more or less

probable that Zach Monahan’s bicuspid aortic valve produced an audible murmur.

7. Further, as previously stated, such testimony was an opinion volunteered by Dr.

Clark and was not in response to any question seeking an opinion on the matter.

8. Lastly, even if this Court find that such testimony is relevant, it should still be

barred under Illinois Rule of Evidence, 403. Illinois Rule of Evidence 403 states that relevant

evidence may be excluded if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury. Ill. R. Evid., 403. Here, the risk

that the jury will take such evidence as evidence that Zach Monahan’s bicuspid aortic valve did

not produce an audible murmur far outweighs any probative value this testimony has.


an order barring any evidence, comment, reference, or argument regarding any of Zachary


Monahan’s anger management issues, police calls, or violent outbursts with his ex-wife or other

family members.





1


PAMELA & MICHAEL TINMAN ) parents and next friends of their son ) JAKE TINMAN, a minor, )

) Plaintiffs, )

) vs. ) No.: 02 L 016398

) ADVOCATE CHRIST HOSPITAL & ) MEDICAL CENTER, et al., )

) Defendants. )

PLAINTIFFS’ MOTION IN LIMINE NO. 12

TO BAR CUMULATIVE EVIDENCE NOW COME the Plaintiffs, PAMELA TINMAN and MICHAEL TINMAN, as parents

and next friends of their son, JAKE TINMAN, a minor, by and through their attorneys,

ROMANUCCI & BLANDIN, LLC, and moves this Honorable Court in limine to bar duplicative

and cumulative testimony by Defendants’ experts. In support thereof, Plaintiffs state as follows:

1. This is a medical malpractice action arising out of the care and treatment of Jake

Tinman in May 1999.

2. On July 14, 2009, Defendants each disclosed their 213(f)(3) witnesses.

Combined, Defendants disclosed a total of 14 controlled expert witnesses, including 7 retained

expert witnesses. Specifically, Defendants seek to introduce testimony from:

a. 5 registered nurses (Peterson, Henrichs, Kehoe, Foley, and Konkel), including 1 retained expert witness (Konkel);

b. 4 pediatric cardiologists (Muangminsuk, Husayni, Vincent, and Moore), including 2 retained expert witnesses (Vincent and Moore);

c. 2 pediatric cardiovascular surgeons (Konstantinov, and Brown), including 1 retained expert witnesses (Brown );


2

d. 2 retained pediatric neurologists (Pavlakis and Bale); and

e. 1 retained pediatric hematologist, John Paul Scott (in addition to a pediatric

hematologist identified as an 213(f)(2) treating physician).

3. Further, Defendants, ADVOCATE and HUSAYNI, expressly adopt the expert

witnesses disclosed by all co-defendants.

4. Plaintiffs move to bar Defendants’ 213(f)(3) witnesses from testifying as to

cumulative and/or duplicative matters. Specifically, Plaintiffs seek the following:

a. To bar Defendant, HUSAYNI, from offering any opinion testimony regarding Defendant, MUANGMINSUK’s compliance with the Standard of Care as Defendant, MUANGMINSUK, will offer testimony from his own expert on the subject. Further, Dr. Husayni is not qualified to offer any opinion testimony regarding any of the remaining defendants’ compliance with the standard of care, and such testimony, if allowed, would be duplicative and cumulative since each Defendant will offer testimony from their own expert.

b. To bar Defendant, MUANGMINSUK, from offering any opinion testimony regarding Defendant, HUSAYNI’s compliance with the standard of care, as Defendant, HUSAYNI, will offer testimony from his own expert on the subject. Further, Dr. Muangmingsuk is not qualified to offer any opinion testimony regarding any of the remaining defendants’ compliance with the standard of care, and such testimony, if allowed, would be duplicative and cumulative since each Defendant will offer testimony from their own expert.

c. To limit the testimony of John Brown, M.D., a surgeon offered by Defendant,

ADVOCATE, to the standard of care as it relates to Defendant, KONSTANTINOV. Dr. Brown is not qualified to testify as to any remaining Defendants’ compliance with the standard of care, and such testimony, if allowed, would be duplicative and cumulative since each Defendant will offer testimony from their own experts on the matter.

d. To limit the testimony of Robert Vincent, M.D., a pediatric cardiologist offered by Defendant, ADVOCATE, to the standard of care as it relates to Defendant, MUANGMINSUK. Any testimony by Dr. Vincent as to Defendant, HUSAYNI, would be duplicative and cumulative as Dr. Husayni will offer testimony from his own expert on the matter. Further, Dr. Vincent is not qualified to render any opinion testimony regarding the standard of care of any remaining Defendant, and such testimony would be duplicative and cumulative as each Defendant will offer testimony from their own expert on the matter.


3

e. To limit the testimony of Terri Konkel, R.N., a nurse offered by Defendant,

ADVOCATE, as to the standard of care as it relates to Defendants, PETERSON and HENRICHS. Nurse Konkel is not qualified to offer any opinion testimony as to the standard of care of any of the Defendant physicians in this matter, and such testimony, if allowed, would be duplicative and cumulative.

f. To limit the testimony of John Moore, M.D., a pediatric cardiologist offered

by Defendant, HUSAYNI, to the standard of care as it relates to Defendant, HUSAYNI. Any testimony by Dr. Moore as to Defendant, MUANGMINGSUK’s compliance with the standard of care would be duplicative and cumulative as Dr. Muangminsuk will offer testimony from his own expert on the matter. Further, Dr. Moore is not qualified to render any opinion regarding any remaining Defendants’ compliance with the standard of care, and such testimony, if allowed would be duplicative as each Defendant will offer testimony from their own expert on the matter.

5. The testimony of these witnesses, if allowed to offer expert opinions regarding the

care and treatment of Jake Tinman in May of 1999, will be cumulative and duplicative. If

allowed to stand, each Defendant will be given the opportunity to offer testimony from up to 5

expert witnesses to rebut the testimony from Plaintiffs’ one witness. For example, Defendant,

HUSAYNI, a pediatric cardiologist will have the opportunity to offer expert testimony from

himself, Sunthorn Muangminsuk, his own retained expert witness, John Moore, and Advocate’s

retained expert witness, John Brown regarding the pediatric cardiology treatment received by

Jake Tinman. The same can be said for Defendant, ADVOCATE.

6. In the case at bar, the disclosed testimony of the Defendants’ controlled expert

witnesses is cumulative and should be stricken insofar as the witnesses offer the same testimony

relating to the standard of care, deviation therefrom, causation and damages, as well as

duplicitous testimony regarding the care and treatment of plaintiff. Such testimony would

unfairly prejudice Plaintiffs and would be a waste of time.

7. Multiple expert witnesses expressing the same opinions on a subject is needlessly


4

cumulative and will be more prejudicial than probative in the matter.

8. It is within this Court’s sound discretion to exclude cumulative evidence and bar

testimony from an expert that would be duplicative. Dillon v. Evanston Hospital, 199 Ill.2d 483

(2002).

WHEREFORE, Plaintiffs, PAMELA TINMAN and MICHAEL TINMAN, as parents

and next friends of JAKE TINMAN, a minor, respectfully ask that this Honorable Court enter an

order barring the cumulative and duplicative testimony of Defendants’ witnesses, and for any

further relief that this Court deems appropriate and just.



Stephan D. Blandin Antonio M. Romanucci ROMANUCCI & BLANDIN, LLC 33 North La Salle Street; Suite 2000 Chicago, Illinois 60602 Tel: (312) 458-1000 Fax: (312) 458-1004 Atty. No.: 35875


1



) Plaintiffs, )

) vs. ) No.: 02 L 016398


) Defendants. )

MEMORANDUM OF LAW IN SUPPORT

OF PLAINTIFFS’MOTION IN LIMINE NO. 12 TO BAR CUMULATIVE EVIDENCE

NOW COME the Plaintiffs, PAMELA TINMAN and MICHAEL TINMAN, as parents


ROMANUCCI & BLANDIN, LLC, and moves this Honorable Court in limine to bar duplicative

and cumulative testimony by Defendants’ experts. In support thereof, Plaintiffs state as follows:

In Illinois, the trial court has considerable power to exclude evidence that is cumulative,

and may bar an expert from testifying if the expert’s testimony would be cumulative. Dillon v.

Evanston Hospital, 199 Ill.2d 483 (2002); Kotvan v. Kirk, 321 Ill.App.3d 733, 748-749 (1st Dist.

2001); Hunt v. Harrison, 303 Ill.App.3d 54 (1st Dist. 1999).

The Supreme Court of Illinois has held that it is proper to bar cumulative medical

testimony at trial. Dillon, 199 Ill.2d at 364. In Dillon, a retained expert testified that the

defendant physician had met the medically relevant standard of care. Id. When the defendant

physician attempted to call a second expert regarding the medical standard of care, that


2

testimony was deemed to be cumulative and was accordingly barred. Id. at 365. The Court

found that the cumulative nature of the evidence was prejudicial to the plaintiff. Id.

The facts of Dillon are analogous to the instant case. Here, the Defendants will have the

opportunity to each call expert witnesses regarding the medical standard of care. It would be

possible for each expert to testify not only to the medical standard of care of Defendant

ADVOCATE but also to the medical standard of care with regards to Defendant HUSAYNI.

This testimony, if it were allowed at trial, would be cumulative, as well as prejudicial to the

Plaintiffs, who may only introduce one expert with regards to the medical standard of care for

each Defendant.

Additionally, the Northern District of Illinois has taken the position that it “is generally

the practice in this district to prohibit a party from offering multiple experts to express the same

opinions on a subject.” Commonwealth Ins. Co. v. Stone Container Corp., 2002 WL 38559, *6

(N.D. Ill. Mar. 12, 2002). Local Rule 16.1.1 of the Northern District of Illinois states that

ordinarily, only one “[expert] witness on each subject for each party will be permitted to testify

absent good cause shown.” N.D. Ill. Form LR 16.1.1 at 2 n.7; see also Dahlin v. Evangelical

Child & Family Agency, 2002 WL 31834881, *5 (N.D. Ill. Dec. 18, 2002)(court excluded

duplicative expert testimony); Sunstar, Inc. v. Alberto-Culver Co., Inc., 2004 WL 1899927, *25

(N.D. Ill. Aug. 23, 2004)(permitting only one expert to testify at trial on each subject). The rule

helps to reduce the unfair possibility that jurors will resolve competing expert testimony by

“counting heads” rather than evaluating the quality and credibility of the testimony. Sunstar,

2004 WL 1899927 *25.

Allowing Defendants’ expert witnesses to express opinions with regard to the standard of

care of both ADVOCATE and HUSAYNI is both needlessly cumulative and a waste of time.


3

Such testimony, if allowed, would be highly prejudicial and increase the possibility that jurors

may “count heads” instead of properly evaluating the testimony of each party’s experts.

WHEREFORE, Plaintiffs, PAMELA TINMAN and MICHAEL TINMAN, as parents

and next friends of JAKE TINMAN, a minor, respectfully request that this Honorable Court

enter an order barring the medical testimony of Defendants’ expert witnesses as to the standard

of care of more than one party as cumulative, and for any further relief that this Court deems

appropriate


By: Attorney for Plaintiffs Stephan D. Blandin Antonio M. Romanucci 33 N. LaSalle St. Suite 2000 Chicago, IL 60602 Tel: (312) 458-1000 Fax: (312) 458-1004


1



) Plaintiffs, )

) vs. ) No.: 02 L 016398


) Defendants. )

MEMORANDUM OF LAW IN SUPPORT OF

THE USE OF ILLINOIS PATTERN JURY INSTRUCTION 5.01

NOW COME the Plaintiffs, PAMELA TINMAN and MICHAEL TINMAN, as parents


ROMANUCCI & BLANDIN, LLC, and in support of the use of IPI 5.01, state as follows:

On May 29, 1999, the physicians treating Jake Tinman performed an echocardiogram in

an effort to diagnose his occluded shunt. Plaintiffs contend, and the medical records show, that

the echocardiogram revealed a narrowing in the shunt in Jake’s heart. Defendant ADVOCATE

contends that the echocardiogram was inconclusive, thus necessitating the cardiac catheterization

performed later in the day. However, ADVOCATE cannot produce the echocardiogram itself.

The failure of a party to produce physical evidence within his control creates a

presumption that the evidence, if produced, would have been adverse to him. Beery v. Breed,

311 Ill.App. 469, 474-478 (2d Dist. 1941); Zegarski v. Ashland Sav. & Loan Ass’n, 4 Ill.App.2d

118, 123 (1st Dist. 1954). The appropriate method of explaining this presumption to the jury is

through the reading of Illinois Pattern Jury Instruction (“IPI”) 5.01. Shiner v. Friedman, 161


2

Ill.App.3d 73 (1st Dist. 1987). Whether to give IPI 5.01 is a matter within the sound discretion

of the trial court. Roeseke v. Pryor, 152 Ill.App.3d 771 (1st Dist. 1981).

Before giving IPI 5.01, the trial court must first determine that in all likelihood, a party

would have produced the evidence under the existing facts and circumstances, except for the fact

that the contents would be unfavorable. Tuttle v. Fruehauf Corp., 122 Ill.App.3d 835, 843 (1st

Dist. 1984). The instruction is warranted when some evidence is presented on each of the four

following elements: (1) the evidence was under the control of the party and could have been

produced with the exercise of due diligence, (2) the evidence was not equally available to the

adverse party, (3) a reasonably prudent person under such circumstances would have produced

the evidence if he believed it would have been favorable to him and (4) there was no reasonable

excuse for the failure to produce the evidence. Id.

The missing echocardiogram clearly merits giving IPI 5.01, as all four elements of Tuttle

are met. The evidence was under the sole control of Defendant ADVOCATE and clearly not

available to the Plaintiff. Additionally, if the echocardiogram truly were equivocal as argued by

the Defendants, it would be favorable to their position and would have been produced by a

reasonably prudent person. Clearly, the first three elements of Tuttle have been met.

The final element under Tuttle is that there is no reasonable excuse for the failure to

produce the evidence. ADVOCATE maintains that the echocardiogram must have been

destroyed, and has not been produced for that reason. However, this excuse is unreasonable.

Under Illinois law, ADVOCATE is required to keep all medical records for a minimum of ten

years. 210 ILCS 85/6.17 (West 2004). If the medical records are material to litigation, Illinois

law requires that the records be kept until the litigation ends, provided that the hospital is notified

within the first ten years. 210 ILCS 85/6.17 (West 2004). While this matter has moved beyond


3

the ten year mark, a timely claim was filed in this matter in 2002. Discovery has been ongoing

throughout that time, and ADVOCATE has not been able to produce that portion of Jake’s

medical records. It is important to note that just last week, ADVOCATE was able to locate

Jake’s cardiac catheterization films, which they had previously maintained were also destroyed.

The fact that the law requires the medical records be kept for at least ten years and longer when

litigation is ongoing, combined the fact that ADVOCATE recently located other medical records

that were claimed to have been destroyed, leads to the conclusion that the excuse for not

producing Jake’s echocardiogram was unreasonable.

Because there is evidence to satisfy each of the four elements of Tuttle, it is appropriate

for this Court to determine that in all likelihood, ADVOCATE would have produced the

evidence under the existing facts and circumstances, except for the fact that the contents would

be unfavorable, and instruct the jury with IPI 5.01.

WHEREFORE, Plaintiffs PAMELA TINMAN and MICHAEL TINMAN, as parents and

next friends of JAKE TINMAN, a minor, respectfully request that this Honorable Court enter an

order to provide the jury with Illinois Pattern Jury Instruction 5.01.



Stephan D. Blandin Antonio M. Romanucci ROMANUCCI & BLANDIN, LLC 33 North La Salle Street; Suite 2000 Chicago, Illinois 60602 Tel: (312) 458-1000 Fax: (312) 458-1004 Atty. No.: 35875


1

IN THE CIRCUIT COURT OF THE 13TH JUDICIAL DISTRICT, LAW DIVISION OF LASALLE COUNTY

GEORGE STEINBACH, as Special Administrator of the Estate of BRYANT STEINBACH, a deceased minor

) ) )

) Plaintiff, ) ) v. ) No.: 02 L 87 ) CSX TRANSPORTATION, INC., a Foreign Corporation,

) )

) Defendant, )

PLAINTIFF’S MOTION IN LIMINE NO. ___ TO BAR MENTION OF MARIJUANA IN BRYANT STEINBACH’S SYSTEM AT TIME

OF ACCIDENT

NOW COMES the Plaintiff, GEORGE STEINBACH, as Special Administrator of the

Estate of BRYANT STEINBACH, deceased, by and through his attorneys, ROMANUCCI &

BLANDIN, LLC, and moves this Court bar any mention of marijuana in Bryant Steinbach’s

system at the time of the accident. In support thereof, Plaintiff states as follows:

It is expected that the Defendant will attempt to elicit testimony regarding the fact that

Bryant Steinbach had marijuana in his system at the time of the occurrence. However,

Defendant has offered no evidence from any qualified witness to suggest that the presence of

marijuana in Bryant Steinbach’s system of the time of the occurrence contributed to this accident

in any way. Any such testimony or evidence serves no purpose in this case other than to

prejudice the jury against the Plaintiff. There is no evidence from any witness that Bryant was

using marijuana immediately prior the occurrence, nor is there any testimony to suggest that

Bryant was in any way intoxicated at the time of the occurrence. As such, such testimony is


2

completely irrelevant to the issues at the trial of this case, and would serve only to prejudice the

jury against Plaintiff.

’Relevant evidence’ means evidence having any tendency to make the existence of any

fact that is of consequence to the determination of the action more probable or less probable that

it would be without the evidence.” Ill. R. of Evidence, R. 401. Under Illinois Rule of Evidence

402, “[e]vidence which is not relevant is not admissible.”

Here, there is nothing that Defendant can point to that would make this testimony

relevant to any issue at trial. As such, it should be barred purely on relevance grounds.

However, if this Court determines that such testimony has some relevance to some issue in this

case, it should be barred under Illinois Rule of Evidence 403, since its prejudicial impact

substantially outweighs any probative value.

Illinois Rule 403 states that “evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.”

Under Illinois law, in order to avoid the unfair prejudicial effect resulting from the

suggestion of intoxication or drug use, a party may not introduce evidence of intoxication or drug

use upon the issue of negligence unless the evidence is sufficient to support a jury determination

of intoxication as defined in IPI-Civil 150.15. Sullivan-Coughlin v. Palos Country Club, 349

Ill.App.3d 553 (2004) (discussing the admission of testimony regarding alcohol consumption). It

must be shown that the use of drugs or alcohol resulted in actual impairment of mental or

physical abilities and a corresponding diminution in ability to act with ordinary care. Wiegman

v. Hitch-Inn Post, of Libertyville 308 Ill.App.3d 789, (1999) (discussing use of alcohol).


3

As stated above, there is no testimony from any witness in this case that Bryant Steinbach

had ingested marijuana in the hours prior to the occurrence. Further, there is absolutely no

testimony from any witness that Bryant Steinbach was, or appeared to be intoxicated from any

substance at the time of the occurrence. As such, any evidence offered by Defendants regarding

the presence of marijuana in Bryant’s system would only serve to prejudice the jury, and should

be barred under Rule 403. Further, Defendants have offered no evidence from any witness to

suggest that Bryant Steinbach was impaired, either physically or mentally by any substance at

the time of the occurrence, or that such impairment caused or contributed to the occurrence itself.

As such, any evidence the regarding the presence of marijuana in Bryan Steinbach’s system at

the time of his death should be barred.

WHEREFORE, Plaintiff, GEORGE STEINBACH, as Special Administrator of the Estate

of BRYANT STEINBACH, a Deceased Minor, by and through their attorneys, ROMANUCCI

& BLANDIN, LLC, respectfully request this Honorable Court to enter an order barring any

evidence, testimony, questioning, statement, remark, argument, and/or any other reference to the

fact that Bryant Steinbach had marijuana in his system at the time of the accident, and for any

further relief this Court deems appropriate and just.


By: ________________________________

Attorney for Plaintiff Stephan D. Blandin Michael E. Holden ROMANUCCI & BLANDIN, LLC 33 North La Salle Street; Suite 2000 Chicago, Illinois 60602 Tel: (312) 458-1000 Fax: (312) 458-1004 Atty. No.: 35875


1

IN THE CIRCUIT COURT OF THE 13TH JUDICIAL DISTRICT, LAW DIVISION OF LASALLE COUNTY

GEORGE STEINBACH, as Special Administrator of the Estate of BRYANT STEINBACH, a deceased minor

) ) )

) Plaintiff, ) ) v. ) No.: 02 L 87 ) CSX TRANSPORTATION, INC., a Foreign Corporation,

) )

) Defendant, )

PLAINTIFF’S MOTION IN LIMINE NO. ___ TO BAR WILLIAM EVANS’ TESTIMONY

NOW COMES the Plaintiff, GEORGE STEINBACH, as Special Administrator of the

Estate of BRYANT STEINBACH, deceased, by and through his attorneys, ROMANUCCI &

BLANDIN, LLC, and moves this Court bar the opinion testimony of Deputy William Evans, the

LaSalle County Sheriff deputy, who re-constructed the accident scene.

William Evans is a deputy sheriff with the LaSalle County Sheriff’s Department. On the

day of the occurrence, Deputy Evans performed an investigation regarding the subject incident

and authored a report with conclusions regarding various aspects of the accident. Namely,

Deputy Evans opined that, based on his calculations; Bryant Steinbach was traveling between

42.6 and 53.8 miles per hour at the time of the collision (See Report, attached hereto as Exhibit

A).

However, Deputy Evans’ opinions regarding the speed of Bryant Steinbach at the time of

the occurrence lack sufficient foundation, are improperly calculated, and are based on

assumptions made by Deputy Evans during his investigation of the occurrence. As such, Deputy


2

Evans’ opinions are inherently unreliable and should be barred at the trial of this matter pursuant

to Illinois Rule of Evidence 702.

Deputy Evans’ is not an accident reconstructionist expert and received only minimal

training regarding accident reconstruction while serving his duties as a Deputy. Specifically,

Deputy Evans attended several one to two-week long courses on accident reconstruction at

Northwestern, meeting the minimum requirements for state certification, which he obtained in

1995 (Evans Depo., p. 14-17). There is no continual education required after getting certified

(Id.). As such, between 1995 and 2001, the date of this occurrence, Deputy Evans received no

further training or education regarding proper accident reconstruction.

Further, according to Deputy Evans’ discovery deposition, there is also no department of

the LaSalle County Sheriff’s Office dedicated to accident re-construction (Id. at 20-21). Deputy

Evans testified in his discovery deposition that he is a deputy sheriff who does accident re-

constructions, which is a task “above and beyond his duties.” Therefore, Deputy Evans’ position

was as a deputy sheriff, not an accident re-constructionist expert. His opinions in this matter,

therefore are lay opinions.

According to Illinois’ Rules of Civil Procedure, Rule 701, if the witness is “not testifying

as an expert, the witness’ testimony in the form of opinions or inferences is limited to those

opinions or inferences which are (a) rationally based on the perception of the witness, and (b)

helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue,

and (c) not based on scientific, technical, or other specialized knowledge within the scope of

Rule 702.” The opinions that Deputy Evans sets forth can only be concluded by an expert

witness with specialized knowledge within the scope of Rule 702.


3

Moreover, Deputy Evans’ opinions are inaccurate. In his re-construction of the accident,

he makes several assumptions that materially change any calculations as to speed, and materially

change how the reconstruction of this occurrence is performed.

First and foremost, Deputy Evans makes the assumption that marks in and around the

cable were “skid” marks, and were evidence of Bryant applying the brakes prior to the

occurrence. However, at his deposition, Deputy Evans admitted that it was difficult to tell

whether the marks depicted in the photographs were “skid marks” at all. Further, Deputy Evans

admitted that there were multiple tire marks from multiple vehicles on the scene of the

occurrence, and that his only basis for believing that these marks were “skid marks” from

Bryant’s dirt bike was the fact that the mark leads up to furrows in the dirt near where the dirt

bike came to rest.

Furthermore, Deputy Evans fails to account for the fact that the purported “skid mark”

continues beyond where Bryant was knocked from his dirt bike and, therefore, would not be

physically able to apply any breaking whatsoever. As such, the purported “skid mark” , in all

likelihood is merely displaced gravel from the dirt bike traveling over the gravel surface, and is

not indicative of any breaking at all. Should the purported “skid mark” be merely tire marks, it is

consistent with Bryant having never seen the cable prior to the collision, with the bike continuing

to roll after Bryant was knocked from the dirt bike until it fell at the point the furrow marks

appear. If this were to be the case, Bryant’s dirt bike would have been traveling at a constant

speed prior to striking the cable. Deputy Evans does not take any of these scenarios into

consideration in reaching his conclusions in this matter.

Additionally, in his calculations of speed, Deputy Evans makes the assumption that

Bryant applied full breaking (i.e. both front and rear brakes fully applied and locked). However,


4

literature and physics dictate that in situations where a 2 wheeled motorcycle fully applies both

the front and rear brakes, the operator will be unable to maintain control of the vehicle, which

will cause the vehicle to fall from an upright position (See Lynn Fricke, Traffic Crash

Reconstruction, Second Edition, 2010, p. 396-298). In this matter, we know that Bryant

Steinbach’s dirt bike was in an upright position at the time he collided with the cable. As such, it

is impossible that Bryant applied both the front and rear brakes prior to the occurrence.

Assuming that Bryant Steinbach saw the cable prior to the occurrence and applied his brakes at

all, it is more likely that he applied the rear brakes only (partially because if he applied front

brakes only, it is unlikely that a rider with Bryant’s experience would be able to keep the bike

upright). This error causes the speed estimate performed by Deputy Evans to be artificially high,

assuming that all other calculations and assumptions made by Deputy Evans are correct.

Due to Deputy Evans’ lack of expertise on the matter, and his material mistakes in the

assumptions and calculations made during his reconstruction of this occurrence, Deputy Evans’

conclusions are inherently unreliable and should be barred in this matter pursuant to Illinois

Rules of Evidence 701 and 702.

WHEREFORE, Plaintiff, GEORGE STEINBACH, as Special Administrator of the Estate

of BRYANT STEINBACH, a Deceased Minor, by and through their attorneys, ROMANUCCI

& BLANDIN, LLC, respectfully request this Honorable Court to enter an order barring any

opinion testimony of Deputy William Evans.

Respectfully submitted,

By:_ __________________

Attorney for Plaintiff Stephan Blandin ROMANUCCI & BLANDIN 33 North La Salle Street


5

Suite 2200 Chicago, Illinois 60602 312/458-1000 Atty. No.: 35875



RALPH LIVINGSTON, ) ) Plaintiff, ) ) v. ) Case No: 04 L 007505 ) WILLIAM EARMAN, D.O., ) ) Defendant. )

PLAINTIFF’S MOTION IN LIMINE NO. 6 COMPARISON TO OTHER CASES

NOW COMES the Plaintiff, RALPH LIVINGSTON, by and through his attorneys,

ROMANUCCI & BLANDIN, and moves this Honorable Court prior to the trial and selection of

the jury in this matter in limine to inform the defendant, defendant's witnesses, and defendant’s

counsel to refrain from statements, remarks, arguments, questions, testimony, introduction of

evidence, or any other attempts to convey to the jury information regarding or making any

references or comparison to the amount of previous awards or settlements in similar cases or

claims arising out of the same or similar circumstances or involving similar injuries or references

to verdict or settlements in other cases, including any infamous cases, i.e. McDonald coffee case

or the Barton v. Metra case, or that the plaintiff’s damage award request should be tested for

excessiveness against such other cases through either argument or voir dire.

In support thereof, Plaintiff states that argument of this type is highly prejudicial and has

been consistently held by the Illinois courts that it is improper to compare or request for damages

to the verdicts of other cases. Simmons v. University of Chicago Hospitals, 247 Ill. App. 3d 177,

617 N.E.2d 278 (1st Dist. 1993); Northern Trust Co., v. County of Cook, 135 Ill. App. 3d 329,

481 N.E.2d 957 (1st Dist. 1985).


WHEREFORE, Plaintiff prays that this Honorable Court, enter an order excluding the

aforesaid admission into evidence and prohibiting any questions, arguments or commentary

during any stage of the trial relating in any way to the aforesaid.



Antonio M. Romanucci, Esq. Stephan D. Blandin, Esq. ROMANUCCI & BLANDIN, LLC 33 North La Salle Street Suite 2000 Chicago, Illinois 60602 312/458-1000 Atty. No.: 35875




PLAINTIFF’S MOTION IN LIMINE NO. 8 COLLATERAL SOURCE PAYMENTS TO PLAINTIFF


ROMANUCCI & BLANDIN, and moves this Honorable Court, in limine, to bar mention,

reference, remark or interrogation, either directly or indirectly in pleadings, documents or by

comments of parties or counsel in the presence or hearing of the jury, during the course of this

trial that the Plaintiff, or any of them, have received or are receiving benefits from collateral

sources of any kind, including but not limited to Public Aid, Medicare, disability insurance,

pension plans, financial assistance and/or medical assistance, or federal aid.

Plaintiff further prays that if the issue of Plaintiff’s collateral source benefits is revealed

to the jury in this matter, that the Court provide a limiting instruction to the jury in the form of:

Ladies and Gentleman of the jury I would like to caution you that you shall not speculate about or consider and possible sources of benefits the Plaintiffs may have received or might receive. After you have returned your verdict the court will make whatever adjustments are necessary in this regard.


It is well established in Illinois that evidence of benefits received by a personal injury

Plaintiff from collateral sources independent of the tort-feasor will not serve to diminish any

damages otherwise recoverable. Lang v. Lake Shore Exhibits, Inc., 305 Ill.App.3d 283, 289 (1st

Dist. 1999); Hammock v. Henry, 222 Ill.App.3d 487 (1st Dist. 1991). The First District

recognizes that “the theory behind this rule is to keep the jury from learning anything about

collateral income which could influence the decision of the jury; allowance of any evidence

regarding the benefits would render this long standing rule meaningless. Lang, 305 Ill.App.3d at

289.

WHEREFORE, Plaintiff prays that this Honorable Court, enter an order excluding the

aforesaid admission into evidence and prohibiting any questions, arguments or commentary

during any stage of the trial relating in any way to the aforesaid.







PLAINTIFF’S MOTION IN LIMINE NO. 17 LAWSUIT CRISIS/ TORT REFORM


ROMANUCCI & BLANDIN, and moves this Honorable Court, prior to the trial and selection of

the jury in this matter, to bar, in limine, any and all voir dire, statement, testimony, questioning,



venire, a panel, or the jury, any reference to a “litigation or lawsuit crisis,” “litigation explosion,”

the need for “tort reform,” or the like, or the effect a verdict for the Plaintiff and against

Defendants.

Such evidence is irrelevant and has no bearing on the issues in this case. See Kolakowski

v. Voris, 94 Ill. App. 3d 404, 410-411 (1st Dist. 1981); Torrez v. Raag, 43 Ill. App. 3d 779, 783

(2d Dist. 1967).

Further, Plaintiff moves to bar any reference to any type of “litigation explosion,” “tort

reform,” or eluding to what effect an award for the Plaintiff would have on the taxpayers, the

jurors, insurance premiums, the economy, or the defendant. Rush v. Handy, 255 Ill.App.3d 352


(4th Dist. 1993); Kowalski v. Voris, 94 Ill.App.3d 404 (1st Dist. 1981); Torrez v. Raag, 43

Ill.App.3d 799 (2nd Dist. 1976); Lukch v. Angeli, 31 Ill.App.2d 20 (1st Dist. 1961).

WHEREFORE, Plaintiff moves this Honorable Court, in limine, to bar reference to or

introduction of the foregoing by Defendants, their counsel or witnesses, at anytime during the

trial of this action in the presence of the venire, a panel or the jury.





IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS

COUNTY DEPARTMENT, LAW DIVISION RALPH LIVINGSTON, ) ) Plaintiff, ) ) v. ) Case No: 04 L 007505 ) WILLIAM EARMAN, D.O., ) ) Defendant. )

PLAINTIFF’S MOTION IN LIMINE NO. 22 TREATING DOCTORS NOT MEETING WITH DEFENSE ATTORNEY


ROMANUCCI & BLANDIN, and before the trial and selection of the jury of this cause, move

this Honorable Court, in limine, to bar mention, reference, remark or interrogation, either directly

or indirectly in pleadings, documents, or by comments of parties or counsel in the presence or

hearing of the jury, during the course of this trial, that counsel for the Defendant did not have an

opportunity to meet with Plaintiff's treating physicians and in support thereof states as follows:

It is anticipated that at the time of trial that counsel for the Defendants may attempt to

elicit testimony that Plaintiff’s medical care providers did not meet with Defendants’ attorneys

prior to their testimony or that Plaintiff’s counsel arranged the date and time of the medical care

provider’s testimony.

Any attempt by Defendants’ attorneys to ask such questions can only serve to imply that

there was some impropriety with a doctor meeting with Plaintiff’s attorney. Such inference is not

only highly improper, but said questioning flies in the face of the well established rule in Illinois

that a defense attorney in a personal injury action is prohibited from interviewing the plaintiff's


treating physician ex parte. Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 499

N.E.2d 952, 966 (1st Dist. 1986) cert. denied.

While IPI (Civil) 3d. 2.06 attempts to offset the 'ancient trick' of implying that there is

impropriety with a witness meeting with one of the attorneys, said instruction cannot offset the

implication that counsel herein is attempting to establish, i.e., that plaintiff's medical witnesses

refused to meet with Defendant’s attorney. Allowing Defendant’s attorney to imply that his

compliance and a treating doctor's compliance with Illinois law somehow benefits the plaintiff or

somehow disadvantaged the defendant is highly improper and can only serve to mislead the jury.

WHEREFORE, Plaintiff prays this Honorable Court for an order barring the Defendant’s

counsel from questioning Plaintiff's treating physicians as to whether said physicians met with,

or had the opportunity to meet with Defendant's counsel, as such questioning is highly

prejudicial.






COUNTY DEPARTMENT, LAW DIVISION RALPH LIVINGSTON, ) ) Plaintiff, ) ) v. ) Case No: 04 L 007505 ) WILLIAM EARMAN, D.O., ) ) Defendant. )

PLAINTIFF’S MOTION IN LIMINE NO. 23 OPINIONS AND TESTIMONY BASED ON MERE POSSIBILITIES


ROMANUCCI & BLANDIN, and moves this Court in limine and prior to the commencement of

trial to prohibit all witnesses heard upon trial of this cause from making any reference,

suggestion, or innuendo regarding testimony and opinions which are merely “possibilities” and

“speculation.” In support thereof, plaintiff states as follows:

ARGUMENT

I.P.I. Civil 1.01[2], states that a juror's "verdict must be based upon evidence and not

upon speculation, prejudice or sympathy." It is equally certain that expert opinion testimony may

not consist of conjecture, guess or speculation. Dyback v. Weber, 114 Ill. 2d 232, 500 N.E.2d 8

(1986).

Herein, plaintiff seeks to prohibit the introduction of opinion testimony or argument

which is based on a mere “possibility” of an event. Such testimony is improper as it fails to meet

the standard of admissibility, as testimony of a mere “possibility” is inadmissible as it tends to

confuse the issues and mislead the jury.


Circumstantial evidence must justify an inference of probability, not mere possibility.

Committee Comments to I.P.I. 3.04., citing McCullough v. Gallaheer & Speck, 254 Ill.App.3d

941 (1st Dist. 1993). Similarly, herein plaintiff seeks to prohibit defendants from offering

opinions and arguing these theories as there is simply no evidence, direct or circumstantial, on

any other mechanism of injury. It is clear that although anything is “possible,” not all things are

within a reasonable degree of certainty, and that the introduction of mere “possibilities” would

have a tendency to mislead and confuse the jury, thereby creating false issues for their resolution.

Thus, plaintiff seeks to insure that all opinions offered upon the trial of this cause are based on a

reasonable degree of certainty and do not consist of mere speculation, guess, or conjecture as to

what is “possible.”

Our appellate courts have held that expert opinion is only as valid as the reasons for the

opinion. Modelski v. Navistar, 302 Ill.App.3d 879, 707 N.E.2d 239 (1999). Testimony grounded

in guess, surmise, or conjecture not being regarded as proof a fact, is irrelevant as it has no

tendency to make the existence of a fact more or less probable. Id. Expert opinions based upon

the witness’s guess, speculation, or conjecture as to what he believed might have happened are

inadmissible. Id.

In Modelski, it was reversible error for the trial court to allow Defendant’s accident

reconstruction witness to present a theory that a tractor had stalled and that the operator was run

over by the tractor while standing on the ground. Said witness’ opinions on a mechanical

breakdown, necessitating the operator to dismount the tractor, were based on sheer speculation

and inadmissible. 302 Ill.App.3d at 886.

WHEREFORE, on the basis of the foregoing, Plaintiff moves in limine that defendants’

be prohibited from introducing into evidence as to mere possibilities and speculation.






IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS LAW DIVISION, COUNTY DEPARTMENT

ANDRZEJ SWIDERSKI, SR., Individually ) and as Special Administrator of the Estate ) of ANDRZEJ SWIDERSKI, JR., Deceased, ) ) Plaintiff, ) ) v. v. ) No. 04 L 009379 ) GEORGE KARKAZIS, Individually and as ) Special Administrator of the Estate of STELLA ) KARKAZIS, Deceased, as Trustee of the Stella ) Karkazis Trust, No. 10086, held at Northern Trust, ) and as Landlord and Owner of Strip Mall at ) 6352 N. Milwaukee Ave., Chicago, IL, ) ) Defendant. ) MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION IN LIMINE NO. TO BAR

REFERENCES TO THE CHARACTER OF ANDRZEJ SWIDERSKI, JR.

NOW COMES the Plaintiff, ANDRZEJ SWIDERSKI, SR., Individually and as Special

Administrator of the Estate of ANDRZEJ SWIDERSKI, JR., Deceased, by and through his

attorneys, ROMANUCCI & BLANDIN, and moves this Honorable Court, in limine, to preclude

any references by the parties to the character and criminal background of ANDRZEJ

SWIDERSKI, JR., and in support whereof states as follows:

Plaintiff anticipates that the Defendant will attempt to introduce evidence of prior

criminal convictions of Andrzej Swiderski, Jr., on the grounds that they are relevant to damages.

In Illinois, character evidence is inadmissible where are party’s character is not at issue. “In a

civil case, the reputation or character of a party is not an issue.” Wendell v. Turzynski 128

Ill.App.2d 139, 150, (1st Dist. 1970). Mr. Swiderski’s character is not an issue in this case, and


any reference to his criminal record should be excluded as irrelevant because the probative value

of the evidence outweighs its prejudicial effect.

All Illinois cases that address the admissibility of evidence regarding the decedent’s

character are criminal matters where the defendant claims self-defense and the decedent has a

violent criminal record. There are no cases inside of Illinois that consider the admissibility of

prior convictions of a decedent in a wrongful death claim. However, a number of other

jurisdictions have considered the matter. The Supreme Court of New Jersey found that evidence

of a decedent’s conviction was not relevant to damages claim for loss of advice, guidance, or

counsel as a parent, and that the admission of such evidence at trial constituted a reversible error.

Johnson v. Dobrosky, 187 N.J. 594, (N.J. 2006). In Johnson, the court found that the decedent’s

welfare fraud conviction was not admissible in the wrongful death action where the sole

pecuniary damages claim was for loss of the decedent’s advice, guidance, and counsel. Id. at

598-99. The court stated that such general character evidence was not relevant to the

relationship that the decedent had with her family or to the probability that she would advise,

guide and counsel her children in the future. Id. at 598. They analogized the character of the

decedent to the character of the plaintiff in a personal injury action, and stated that the

“decedent’s ‘character’ is not in issue in a wrongful death action except insofar as it is an

element of a particular claim or defense.” Id.

In another wrongful death matter, an Arizona court found that there was no error in a trial

court’s ruling to exclude any reference to the decedent’s prior felony conviction. Ritchie v.

Krasner, 221 Ariz. 288, 211 P.3 1272, (Ariz.App.Div.1 2009). The trial court found that the

claimant-decedent’s prior felony conviction could be used only to attack his credibility as a


witness, and the appellate court upheld the ruling, noting that it was not an abuse of discretion to

exclude evidence of prior convictions on the basis that its prejudicial effect is greater than the

probativeness. Id. at ---, 1286.

Lastly, Mr. Swiderski’s convictions are not admissible under People v. Montgomery,

which adopted the then-proposed Federal Rule of Evidence (FRE) 609. 47 Ill.2d 510 (1971).

The adoption of this rule allows evidence that a witness has been convicted of a crime to be

admitted, for the purposes of impeachment only, provided that the “probative value of the

evidence of the crime is substantially outweighed by the danger of undue prejudice.” Id. at In

Knowles v. Panopoulos, the Montgomery holding was extended to civil cases. 66 Ill.2d 585

(1977). Mr. Swiderski is not a witness in this matter, and as such his felony convictions are not

admissible under this rule.

Again, while no Illinois court has considered the matter, the Federal District Court for the

Northern District of Illinois published an opinion rulings on motions in limine in Thomas v.

Sheahan, and ruled that evidence of the decedent’s history of criminal involvement, prior arrests

and convictions should be barred in a wrongful death suit. 514 F.Supp.2d 1083, (N.D.Ill. 2007).

In their ruling, the court found that the evidence is not admissible under FRE 609 not only

because the decedent is clearly not a witness at the trial, but also because the probative value of

the conviction outweighs its prejudicial effect.

In conclusion, there are no grounds for introducing any evidence or testimony regarding

the prior criminal history of Andrzej Swiderski, Jr., at trial. Any references to his arrests or

criminal record are irrelevant, highly prejudicial, and inadmissible for any purpose.



ANDRZEJ SWIDERSKI, SR., Individually ) and as Special Administrator of the Estate ) of ANDRZEJ SWIDERSKI, JR., Deceased, ) ) Plaintiff, ) ) v. ) No. 04 L 009379 ) GEORGE KARKAZIS, Individually and as ) Special Administrator of the Estate of STELLA ) KARKAZIS, Deceased, as Trustee of the Stella ) Karkazis Trust, No. 10086, held at Northern Trust, ) and as Landlord and Owner of Strip Mall at ) 6352 N. Milwaukee Ave., Chicago, IL, ) ) Defendant. )

PLAINTIFF’S MOTION IN LIMINE NO. 3 BAR LAY OPINIONS RE: SPEED OF MANN VEHICLE

NOW COMES the Plaintiff, ANDRZEJ SWIDERSKI, SR, Individually and as Special

Administrator of the Estate of ANDRZEJ SWIDERSKI, JR., Deceased by and through his

attorneys, ROMANUCCI & BLANDIN, LLC, and moves this Honorable Court to bar any

testimony related to a lay opinion of the speed of the Mann Vehicle.

Plaintiffs expect that Defendants may refer to lay eyewitness accounts regarding the

speed of the Mann vehicle. For instance, in her testimony, Susan Doyle testified that the Mann

vehicle was going over 20 miles per hour. (Doyle Depo. at pg. 32-34). Moreover, she also

testified that it was going “fast for the conditions of being in the parking lot.” (Doyle Depo. 34:9)

Furthermore, she admitted that she told police that she thought Mann was “going about 30 to 40

miles an hour.” (Doyle Depo. 36:17-23).

Other eyewitnesses gave various accounts and guesses about the speed of the vehicle,

either in the police report or in their testimony. However, each was a lay bystander, and had no


background in forensic or accident reconstruction, and the estimates vary widely. Therefore, any

guesses at the speed of the Mann vehicle by any of these witnesses are mere speculation without

any foundation.

The only witness in this case that actually establishes the speed of the Mann vehicle is

Plaintiff’s Expert, Professor Ralph Barnett, who used measurements and a formula involving the

coefficient of friction and the weight of the vehicle. (Depo. of Barnett, at 37-39). Defendant’s

expert testified that he could not give opinions because “a lot of testing [would] be necessary to

figure out what the speed of this particular vehicle would be.” (Depo. of Wisniewski 54:20-22).

Surely, if Defendant’s expert cannot determine the speeds, even after being provided the

measurements and formula that Plaintiff’s expert based his calculations on, than a lay bystander

cannot give reliable testimony regarding the same subject matter.





By: ______________________________ Attorney for Plaintiff

Antonio M. Romanucci, Esq. David J. Vander Ploeg, Esq. ROMANUCCI & BLANDIN, LLC 33 North La Salle Street, Suite 2000 Chicago, Illinois 60602 312/458-1000 Atty. No.: 35875




PLAINTIFF’S MOTION IN LIMINE NO. 4 BAR OPINIONS RE: CAUSATION BY OFFICER HOLLAND-HUELS




opinion testimony regarding the causation of the incident by any witness other than those

disclosed pursuant to 213(f)(3).

Plaintiffs expect that Defendants may refer to an investigating officer’s opinions as to the

causation of this incident. In her testimony, Officer Talissa Holland- Huels, who took the

photographs of the scene of the occurrence, testified that she believed that the cause of this

incident was that “Mr. Mann put his foot on the accelerator instead of the brake.” (Depo.

Holland- Huels 49:19-22). Moreover, she stated that her opinion was “Based on the damage, the

injuries and the property damage.” (Depo. Holland- Huels 50:2-3).


However, she also testified that she never heard Hyman Mann make any such statements,

as she wasn’t “close enough to overhear any conversations Mr. Mann had” with other officers.

(Depo. Holland-Huels 51:5-7). Additionally, she said her sole basis for thinking that Hyman

Mann had experienced a brake slip was “through reports from others” (Depo. Holland-Huels

51:11-12). Officer Holland-Huels simply took photos of the scene of the occurrence, and did not

undertake any investigation of the incident. She is not a detective and has no experience in

accident reconstruction. Therefore, her entire opinion as to causation is based solely on hearsay,

speculation, and conjecture.

Moreover, Defendants did not disclose Officer Holland-Huels as an expert in their

213(f)(3) disclosures, nor did their expert base any of his opinions on her conclusions. Therefore,

Defense counsel should be barred from surprising the Plaintiff by relying on Officer Holland-

Huels’ opinions as to causation at the time of trial. Futhermore, as their expert did not base his

conclusions on this testimony, there is no prejudice to the Defendants arising out of excluding

this portion of Officer Holland-Huels’ testimony.






Antonio M. Romanucci, Esq. David J. Vander Ploeg, Esq. ROMANUCCI & BLANDIN, LLC 33 North La Salle Street, Suite 2000 Chicago, Illinois 60602




PLAINTIFF’S MOTION IN LIMINE NO. 5 IN SUPPORT OF ALLOWING STATEMENTS

MADE BY ANDRZEJ SWIDERSKI JR. INTO EVIDENCE



attorneys, ROMANUCCI & BLANDIN, LLC, and moves this Honorable Court to allow any

testimony regarding statements made by Andrzej Swiderski, Jr. into evidence.

Plaintiff believes that Defendant will try to bar any statements made by Andrzej

Swiderski, Jr. from the time of the occurrence until his death. Andrzej Swiderski lived for almost

half an hour between the time of the occurrence and the time he died. For the majority of that

time, he was communicative and responsive to a bystander that was administering him first aid.

(Depo of Latin, at 34). This bystander, Lori Latin, stated that initially, Andrzej was only able to

make a “grunting, growling, whining noise without speaking.” (Depo. of Latin, 70:15-20), but

that after she calmed him down and asked his name, he was able to answer her. (Depo. of Latin,


30:17-20). She administered first-aid, including fashioning a tourniquet out of a belt, which she

had to adjust as it was situated on his throat. (Depo. of Latin, 33:18-34:2). During this whole

ordeal, he was talking and responding in a very strong Polish accent. (Depo. of Latin, 31:1-5).He

was able to give his name and respond to her questions about the tightness of the belt. (Depo. of

Latin, 30:17-20, 70:15-20).

The out-of-court statements made by Mr. Swiderski at the scene are admissible under the

spontaneous declaration hearsay exception. The exception is premised upon the idea that

excitement caused by an event or condition temporarily impairs the out-of-court declarant’s

capacity for reflection, thereby producing statements that are free of conscious fabrication. As

such, a statement relating to such an event or condition that is made while the declarant is under

the stress or excitement from that event or condition is admissible under this exception if the

statement expresses the declarer’s then-existing state of mind, emotion, sensation, or physical

condition, including mental feeling, pain, or bodily health. In re Estate of Holmgren, 237

Ill.App.3d 839 (3d Dist. 1992); In re Marriage of Arcaute, 261 Ill.App.3d 263 (3d Dist. 1994).

A statement, made by one not testifying at trial, will be recognized as a spontaneous declaration

or excited utterance when there is: (1) an occurrence sufficiently startling to produce a

spontaneous and unreflecting statement; (2) an absence of time to fabricate; and (3) a

relationship between the statement and the circumstances of the occurrence. Morelli v. Ward,

315 Ill.App.3d 492 (3d Dist. 2000). Mr. Swiderski’s statements at the scene clearly fit into each

of these elements: a car driving through the window of the store is certainly a startling event, he

was still at the scene and had no time or opportunity to fabricate, and his statements were related

to the occurrence, most likely his mental feeling, pain, and bodily health at the time.


WHEREFORE, Plaintiff moves this Honorable Court, in limine, to allow reference to or

introduction of the foregoing by Plaintiffs, their counsel, or any witnesses, at anytime during the

trial of this action, in open court.



Antonio M. Romanucci, Esq. David J. Vander Ploeg, Esq. ROMANUCCI & BLANDIN, LLC 33 North La Salle Street Suite 2000 Chicago, Illinois 60602 312/458-1000 Atty. No.: 35875




PLAINTIFF’S MOTION IN LIMINE NO. 6 PERMIT USE OF DEMONSTRATIVE EXHIBITS,

INCLUDING 3-D ANIMATIONS AND A SCALE MODEL



attorneys, ROMANUCCI & BLANDIN, and moves this Honorable Court, in limine, to permit

use of demonstrative exhibits depicting wheel stops throughout the course of this trial. The use

of this evidence to illustrate the various witnesses’ testimony is entirely proper under Illinois

law.

The demonstrative exhibits to be utilized by plaintiffs are relevant, helpful and not

misleading. It is well-settled that the use of demonstrative exhibits is favored to help the jury

better understand the issues in a case. Burke v. Toledo, P. & W.R.R. Co., 148 Ill.App.3d 208 (1st

Dist. 1986). The admittance of demonstrative evidence rests within the discretion of the trial

court. Papas v. Fronczak, 249 Ill.App.3d 42, 51 (1st Dist. 1993). The relevant inquiry in


determining the admissibility of demonstrative evidence is whether the evidence is relevant,

helpful and not misleading. Peterson v. Lou Bachrodt Chevrolet Co., 76 Ill.2d 353 (1979). The

same standard applies to medical charts and exhibits being used as demonstrative evidence.

Papas, 249 Ill.App.3d at 51. In People v. Burke, for instance, the Court affirmed the use of a

railroad crossing standard equipped with cross bars and flashing lights because the standard

“helped several witnesses . . . describe the items at the scene of the accident.” 147 Ill.App.3d at

213.

It is clear that to fully understand the issues in this case, the parties must be able to

communicate the layout of this area as it existed on the day in question. Moreover, in order to

demonstrate their expert’s proposed solution to the problem, it is necessary to depict what the

bollards would look like and where they would be located.

Plaintiff anticipates that the Defendant will attempt to bar photographs, videos, and

models depicting both the condition of the Subway Sandwich Shop in question on the day of the

occurrence, and the bollards Plaintiff’s expert proposed as a remedy to that condition. Plaintiff

believes that Defendant will object on the grounds that any depiction of the bollards is equivalent

to showing a subsequent remedial measure. However, Plaintiffs will not be showing the actual

attempted subsequent remedial measure, which are the wheel stops that are currently located

there. Plaintiff only asks to show the condition of the lot in question and to demonstrate what the

bollards would look like once in place.

Even if the court finds that the bollards constitute a subsequent remedial measure, the

depiction of such is only barred if it is being used for the purpose of proving negligence or

culpable conduct. Plaintiff is seeking to use these exhibits for other purposes, including

impeachment, establishing the feasibility of a safer design, and other relevant purposes.


First, Plaintiff anticipates that Defendant’s expert will testify, consistent with his

deposition, where he testified as follows:

BY MR. ROMANUCCI: Was there any requirement for the owner to install bollards, vertical bollards?

A. No. Q. Was there anything that prevented the owner from installing bollards in this particular case? … THE WITNESS: We would have to research that, whether the fire department would have some problems with that in terms of their radiuses and getting in there would be the first place I'd go. Snow removal is a real concern. Those are two things. … BY MR. ROMANUCCI: Is there any code requirement that prevented the owner from installing bollards in this parking lot to protect the front of the Subway sandwich shop? A. That's a different question now if you're talking about code requirements. No, there's no code requirements that I know of but, again, I just gave you in terms of vehicles, this is generally defined as the fire lane and I'd have to do a little more research before I ever put that in the drawing to say you can do that. --- Q. Why else wouldn't you install pipe bollards in front of that store other than drainage and snow removal? A. Well, again, I've answered already in terms of, again, I think it causes site [sic] line problems where you have them at least at the frequency that Mr. Barnett is going, people driving in from the streets will have a blind spot, especially -- again, I'm more concerned about little individuals. Again, I think in terms of that close to the driveway or the drive lane, I think causes a real concern as people walk out beyond the pipe bollard. They have no distance between the pipe bollard and the driving vehicle and, in other words, impact can happen immediately and you've got a movable object that is going to crush somebody. I mean, it could be catastrophic. So again, I just believe that's a very hazardous situation to do that in this location. (Depo of Gregory Wisniewski, 67:2-68:23, 92:18- 93:12, emphasis added). If the

Defense’s expert testifies similarly, then the photographs, animation, and model of the location

in question in its condition on the day of the incident, and including the placement of bollards,

located where the sidewalk meets the pavement, is clearly evidence tending to impeaching the

expert’s credibility as to whether the bollards pose any risk due to all of the reasons given in his

testimony above. By looking at the animation and the models with the naked eye, the jury can

see for themselves whether there are any sight line issues.


Second, the photographs, animation, and model of the location in question in its condition

on the day of the incident, and including the placement of bollards, also establish the feasibility

of a safer design. Since their expert suggests that it would be “very hazardous” to place the

bollards as proposed, it is perfectly legitimate to use the photos to establish the fact that the safer

design was in fact feasible.

WHEREFORE, plaintiff requests that this Court enter an Order permitting use of

demonstrative exhibits of the location in question in its condition on the day of the incident, and

including the placement of bollards, throughout the course of this trial.







PLAINTIFF’S MOTION IN LIMINE NO. 7 ALLOW USE OF PHOTOGRAPHS DEPICTING BOLLARDS

FOR PURPOSES OF IMPEACHMENT



attorneys, ROMANUCCI & BLANDIN, and moves this Honorable Court, in limine, to permit

use of demonstrative exhibits depicting use of bollards in parking lots not including the one at

issue in order to impeach the credibility of the Defense’s expert witness.

Plaintiff anticipates that the Defendant will object to the use of photographs taken of

bollards or pillars installed in various parking lots throughout the community. Plaintiff will seek

to use these photographs only for the purposes of impeaching the Defendant’s expert.

The use of this evidence to impeach the witnesses’ testimony is entirely proper under

Illinois law. “Any evidence otherwise admissible which is relevant and material on the issue of


the credibility of a witness is competent as impeaching evidence.” 37 Ill. Law and Prac.

Witnesses § 92 (ref. Kennedy v. Modern Woodmen of America, 243 Ill. 560 (1910)).

Plaintiff anticipates that Defendant’s expert will testify, consistent with his deposition,

where he testified as follows:

Q. Subparagraph C, you state that they are not – bollards and barriers are not installed as custom and practice in front of stores in strip shopping centers? THE WITNESS: Correct. Q. That’s your opinion, is that correct? THE WITNESS: Correct. Q. What is the basis for that opinion? THE WITNESS: Based on my thousands of shopping centers I reviewed as part of my work and life in terms of looking at parking lot design and installations. Q. So if there exists a strip shopping center that has either pillars or bollards or barriers installed, would you be critical of that design? THE WITNESS: Well, it would be something that I have never seen. (Depo. of Gregory Wisniewski, 84:19- 85:10, emphasis added).

Q. You wouldn’t criticize or condemn the owner of these premises if bollards were installed in front of the Subway sandwich shop to protect pedestrians on the sidewalk or patrons inside the shop, true? … THE WITNESS: It is not something done. You raise all sorts of issues in doing that of preventing cars now from stopping in front and opening their – you create blind spots. You create problems in snow removal. … (Depo. of Gregory Wisniewski, 77:03-77:15, emphasis added). The Defense’s witness also states in his deposition to state that the parking lot is “just

typical of all the others” he has seen in the Chicagoland area. (Depo. of Gregory Wisniewski,

82:04-82:05). If Defense’s expert testifies similarly to his deposition testimony, Plaintiff will

seek to use photographs from the surrounding area that depict the use of bollards to protect

pedestrians and sidewalks to impeach his testimony that such structures are “not something [that

is] done” to protect sidewalks and pedestrians from vehicles and that a parking lot designed

without such bollards is “just typical” of all the others. The photographs would also be used to


attack the witness’s credibility as an expert who has seen “thousands” of shopping strip parking

lots but yet has “never seen” such a shopping center with bollards or pillars installed.

WHEREFORE, plaintiff requests that this Court enter an Order permitting use of

photographs depicting the widespread use of bollards in the community, should they be

necessary for purposes of impeachment.







PLAINTIFF’S MOTION IN LIMINE NO. 8 BAR REFERENCE TO ALLEGED CAR MALFUNCTION




testimony regarding any reference to an alleged malfunction of the Chrysler Sebring being

driven by Hyman Mann.

Throughout the pendency of this case, in multiple depositions, various Defense counsel

have asked multiple witnesses whether there is any evidence of car malfunction being a cause of

the occurrence in question. Each of these witnesses has testified that they do not have any

evidence to support that conclusion. That includes each of the investigating officers in this

matter.


To the contrary, all evidence introduced in this case shows that Hyman Mann mistook his

brake for his accelerator. Officer Marchfield testified that Hyman Mann told him that he “put his

foot on the accelerator instead of the brake.” (Depo. Marchfield 23:3-7). Officer Paraino testified

that Mr. Mann told him that “he had mistakenly stepped on the accelerator rather than the brake.

(Depo. Paraino 12:1-2). Therefore, allowing evidence to come in that the car may have

malfunctioned will be more prejudicial than probative, and will confuse the jury as to the issues

in this matter.

WHEREFORE, Plaintiff moves this Honorable Court, in limine, based on the foregoing

to bar reference to or introduction of the foregoing by Defendants, their counsel or witnesses, at

anytime during the trial of this action in the presence of the venire, a panel or the jury.






LAW DIVISION, COUNTY DEPARTMENT


PLAINTIFF’S MOTION IN LIMINE NO. 10 TO BAR EVIDENCE, REFERENCE, ARGUMENT,

INFERENCE, OR QUESTIONING REGARDING PLAINTIFF’S DIVORCE

NOW COMES the Plaintiff, ANDRZEJ SWIDERSKI, SR., by and through his attorneys,

ROMANUCCI & BLANDIN, and moves this Honorable Court for an order in limine barring the

defendants from introducing any evidence, reference, argument, inference, or questioning

regarding plaintiff’s divorce from Barbara Swiderski.

At the time of the filing of this action, Andrzej Swiderski, Sr., was married to Barbara

Swiderski. Subsequently, Andrzej Swiderski, Sr., and Barbara Swiderski have divorced. Both

remain the real parties at interest in this lawsuit, as reflected in the jury instructions, and both

agree that Andrzej Swiderski, Sr. is competent to serve as Special Administrator. The divorce

has no impact on the amount each individual has suffered as a result of the loss of their son.


Therefore, the divorce between Andrzej Swiderski, Sr., and Barbara Swiderski is completely

irrelevant, and highly prejudicial. Therefore, any testimony as to their divorce is inadmissible.










PLAINTIFF’S MOTION IN LIMINE NO. 11 BAR OFFICER TESTIMONY RE: LACK OF CODE VIOLATIONS




testimony related any responding officer not citing Karkazis for any code violations.

Throughout the pendency of this matter, Defense counsel has asked each responding

officer whether they gave any citations to the Karkazis family for any code violations. Such

questioning is improper for multiple reasons.

First, the Chicago Police Department is not the government body responsible for

enforcing any code violations. Any violations of code are enforced during any inspections that

were conducted by the City of Chicago Department of Inspectional Services.


Second, when Chicago Police Officers respond to the scene of a major incident with

multiple injuries, they would not be focusing their investigation on whether there were any

violations of the code. A code violation is not readily apparent to the untrained, naked eye,

especially when you are responding to an accident scene that is described by a veteran officer as

“chaos.” Further, no investigating officer ever did an accident reconstruction or the type of full

investigation necessary to uncover code violations.

Third, even if the Chicago Police Department noted a violation at the time of the

occurrence and had the authority to enforce the code, they would not which entity to cite without

doing an investigation as to which entity was responsible for which portion of the parking lot and

restaurant. Officers responding to an accident scene are not going to have access to the leases,

corporation papers, and translators on hand to discover who to cite for a code violation.

Fourth, both parties are in agreement that there was no code violation, and that the BOCA

Code does not apply.

Fifth, Defendants did not disclose any of these responding officers as experts in their

213(f)(3) disclosures, nor did they disclose any of the City of Chicago Department of

Inspectional Services employees with knowledge of the subject property. Furthermore,

Defendant’s expert does not rely on the lack of any code violation citations by responding

officers in coming to his opinions. He looked through the applicable codes and all the materials

related to this location to come to his opinions.

Therefore, this type of evidence is irrelevant, cumulative, and runs a high risk of

prejudicing a jury, and, because they do not rely on the evidence, the Defendant will suffer no

prejudice if this evidence is excluded.







Antonio M. Romanucci, Esq. David J. Vander Ploeg, Esq. ROMANUCCI & BLANDIN, LLC 33 North La Salle Street, Suite 2000 Chicago, Illinois 60602 312/458-1000 Atty. No.: 35875



DANIEL CORRADO and ) MARY ELLEN CORRADO, ) ) Plaintiffs, ) No. 10 L 8487 ) v. ) ) BRIAN HAEFLINGER, ) ) Defendant. )

PLAINTIFF’S MOTION IN LIMINE NO. 1 TO BAR MENTION OF HOW FAST BRIAN HAEFLINGER WAS DRIVING AT TIME

OF IMPACT

NOW COME the Plaintiffs, DANIEL CORRADO and MARY ELLEN CORRADO , by

and through his attorneys, ROMANUCCI & BLANDIN, LLC, and moves this Court to bar any

mention including testimony, questioning, statement, remark argument and/or any other

reference to how fast DANIEL CORRADO was driving the vehicle, prior to the accident. In

support thereof, Plaintiff states as follows:

1. On October 16, 2008, Mr. Corrado was driving a rented Lexus ES350 westbound on

interstate I-90/I-94. (See Illinois Traffic Crash Report, attached hereto as Exhibit A).

At approximately 3:44 p.m., the car operated by Mr. Corrado, which was stopped due

to heavy traffic, was struck from behind by the Nissan Altima driven by the

Defendant, Brian Haeflinger.

2. Liability is indisputable in this case. According to the police report, the Defendant

was given citations for driving too fast for conditions and for failure to reduce speed.

(See Illinois Traffic Crash Report, Exh. A). Defendant pled guilty to both charges and


paid the fines by mail. During his deposition, the Defendant did not dispute the

accuracy of the police report or that he caused the collision that occurred.

3. During deposition, Defendant was not able to say how fast he was going at the

moment of impact and such testimony was not otherwise disclosed (See Haeflinger

Deposition, attached hereto as Exhibit 1; See also Defendant’s 213 answers to

interrogatories, attached hereto as Exhibit 2). Therefore, defense should be barred

from saying how fast Defendant, Brian Haeflinger, was driving at the time of impact.

WHEREFORE, Plaintiffs, DANIEL CORRADO and MARY ELLEN CORRADO, by

and through his attorneys, ROMANUCCI & BLANDIN, LLC, respectfully request this

Honorable Court to enter an order barring any evidence, testimony, questioning, statement,

remark, argument, and/or any other reference to how fast Defendant, Brian Haeflinger, was

driving the vehicle, at the time of impact, and for any further relief this Court deems appropriate

and just.


By: ________________________________

Attorney for Plaintiff Michael E. Holden Stephan D. Blandin ROMANUCCI & BLANDIN, LLC 33 North La Salle Street; Suite 2000 Chicago, Illinois 60602 Tel: (312) 458-1000 Fax: (312) 458-1004



DANIEL CORRADO and ) MARY ELLEN CORRADO, ) ) Plaintiffs, ) No. 10 L 8487 ) v. ) ) BRIAN HAEFLINGER, ) ) Defendant. )

PLAINTIFF’S MOTION TO RECONSIDER BARRING DEFENSE FROM SHOWING PICTURES OF DAMAGED VEHICLES

NOW COMES the Plaintiffs, DANIEL CORRADO and MARY ELLEN CORRADO ,

by and through his attorneys, ROMANUCCI & BLANDIN, LLC, and moves this Court to

reconsider barring defense from showing pictures of the damaged vehicles to contest the

reasonableness of Defendant’s actions. In support thereof, Plaintiff states as follows:

1. Since, the court granted Plaintiff’s motion to exclude photographs of the vehicles for

the purpose of showing the nature and extent of Plaintiff’ injuries, we ask the court to

reconsider barring the photographs completely because the Defendant made judicial

admissions of negligence in his deposition taken on April 6, 2011. Therefore, he

should not be able to make a contradictory argument saying that he is not negligent.

2. A judicial admission is a deliberate, clear, unequivocal statement of a party about a

concrete fact within that party's peculiar knowledge. See McCormack v. Haan, 20

Ill.2d 75 (1960); Baker-Wendel, Inc. v. Cohon & Associates, Ltd., 100 Ill. App.3d

924,929 (1981). Additionally, a party cannot create a factual dispute by contradicting

a previously made judicial admission. See Smith v. Ashley, 29 Ill.App.3d 932, 935


(1975); Fountaine v. Hadlock, 132 Ill.App.3d 343 (1971). “[A] party may not create a

genuine issue of material fact by taking contradictory positions, nor may he remove a

factual question from consideration just to raise it anew when convenient.” See

Schmahl v. A.V.C. Enterprises, Inc., 148 Ill.App.3d 324, 331 (1986). The frequently

stated purpose of the doctrine of judicial admissions is to eliminate the temptation to

commit perjury. Id. at 331.

3. The assertions made by Haeflinger in his deposition, as shown below, constitute

binding judicial admissions because they clearly admit negligence. He admits he rear-

ended Plaintiff. He admits he pled guilty to driving too fast for conditions. He admits

he pled guilty to failing to reduce speed. He admits he was at fault for the accident.

See Haeflinger Deposition, p. 20, L.18-20; p. 24, L. 18-21; p. 25, L. 8-24; p. 26, L.1-

2; p. 27, L. 6-7, L. 12-18.

Q: The front end of your car struck the rear end of another vehicle, true?

A: Yes.

Q: So you admitted – you pled guilty, meaning that you admitted what the

tickets were made out to for; is that true?

A: Yes.

Q: The police report indicates you received a ticket for driving too fast for

conditions. Do you agree with that?

A: Yes.

Q: It also indicates you received a ticket for failure to reduce speed. Do you

agree with that?

A: Yes.


Q: So, in other words, if the police report indicates you were driving too fast

for conditions and you failed to reduce speed, those are the tickets that you

pled guilty to; is that true?

A: Yes.

Q: And you just did not slow in time?

A: Correct

Q: You did not react in time for the brake lights in front of you?

A: Yes.

Q: And that’s what caused the impact between your vehicle and the vehicle in

front of you, true?

A: Yes.

WHEREFORE, Plaintiffs, DANIEL CORRADO and MARY ELLEN CORRADO, by

and through his attorneys, ROMANUCCI & BLANDIN, LLC, respectfully request this

Honorable Court to enter an order barring defense from showing pictures of the damaged

vehicles to contest the reasonableness of Defendant’s actions, and for any further relief this

Court deems appropriate and just.


By: ________________________________

Attorney for Plaintiff Michael E. Holden Stephan D. Blandin ROMANUCCI & BLANDIN, LLC 33 North La Salle Street; Suite 2000 Chicago, Illinois 60602 Tel: (312) 458-1000 Fax: (312) 458-1004




ATHENA CHRISTUS, ) ) Plaintiff, ) ) vs. ) No.: 09 L 6126 ) ABIDA KASSIM, ) ) Defendant. )

PLAINTIFF’S MOTION IN LIMINE NO. 1 TO BAR TESTIMONY OF DEFENDANT’S 213(F)(3) EXPERT, ERNEST CHIODO

NOW COMES the Plaintiff, ATHENA CHRISTUS, by and through her attorneys,

ROMANUCCI & BLANDIN, and moves this Honorable Court to bar Defendant’s 213(f)(3)

witness, Ernest Chiodo for the following reasons: (1) Illinois courts do not generally recognize

biomechanical engineer testimony with regard to motor vehicle accident; (2) Chiodo’s opinions

regarding speed and force lack adequate foundation and are not actually specific to Ms. Christus

or this occurrence; (3) Dr. Chiodo’s opinions do not meet the requirement of Rule 702 that it

assist the trier of fact. In support thereof, Plaintiff states as follows:

1. This case involves a two car rear-end motor vehicle collision. The Defendant,

Abida Kassim, rear-ended the Plaintiff, Athena Christus, when Ms. Christus stopped for a yellow

arrow in the left-turn lane at the intersection of Skokie Blvd. and Golf Rd. in Skokie, Illinois. As

a result of the collision, Plaintiff has claimed injuries to her back. Plaintiff’s medical providers

have diagnosed her as suffering from facet syndrome, and will testify that the injuries were

caused by the May 24, 2007 motor vehicle collision.

2. Defendant has hired a biomechanical engineer (who is also a practicing internal

medicine physician), who reviewed Plaintiff’s post-occurrence medical records, Plaintiff’s


deposition, and photos of Ms. Christus’ motor vehicle. Defendant’s expert prepared a report in

this matter (attached hereto as Exhibit A), which offered four basic opinions: (1) that, based on

review of the photographs, the speed of the collision was less than 2.5 miles per hour; (2) that,

based on a speed of 2.5 miles per hour, the forces involved in the collision were less than 1.14

Gs; (3) based on one 1994 article, such forces are less than are generally experienced in daily-

activities, such as plopping down in a chair; and (4) that because Plaintiff would have plopped

down in her car before the accident, she would have experienced forces greater than experienced

in the accident, as such her injuries were not caused by the accident.

3. Defendant’s opinions fail to satisfy the requirements for expert testimony in

Illinois, and, as such should be barred. Specifically, 1) Illinois courts do not generally recognize

biomechanical engineer testimony with regard to motor vehicle accident; (2) Chiodo’s opinions

regarding speed and force lack adequate foundation and are not actually specific to Ms. Christus

or this occurrence; (3) Dr. Chiodo’s opinions do not meet the requirement of Rule 702 that it

assist the trier of fact.

Argument

A. Illinois courts do not recognize biomechanical engineer testimony with regard to motor vehicle accidents.

4. The admissibility of biomedical engineer testimony is tested under the evidentiary

standards applied to scientific testimony in general. Biomedical engineering has been described

as the application of engineering principles to explain how things how things interact with the

human body. Biomedical engineering testimony as to the cause of a victim’s injuries has been

held admissible where the injuries occurred during a medical procedure or a sports event. It has

been held inadmissible where the victim’s injuries followed a traffic or household accident. Dale

Joseph Gilsinger, J.D., Annotation, Admissibility of Biomedical Engineer Testimony, 43 A.L.R. 6


327 (2011) (a copy of said article is attached as Exhibit B).

5. Biomedical engineering testimony has not been recognized in Illinois involving

motor vehicle accident. Martin v. Sally (341 Ill.App.3d 308, 792 N.E.2d 516 (2d. Dist. 2003))

held biomedical engineer testimony was not allowed. In Martin, it was undisputed that the

defendant rear-ended the plaintiff’s vehicle. Defendant called an expert witness, an accident

reconstructionist and biomechanist, to testify as to the results of studies done in the field of

biomedical engineering, which attempted to determine what injuries would result to humans in

low-speed impacts. Defendant’s expert witness testified that the studies and tests he utilized

were all subjected to a peer-review process, that he used methodology or techniques firmly

established in the field of biomechanical engineering, and that they were scientifically

performed. Id. The trial court denied the plaintiff’s motion in limine to bar, and allowed the

defendant’s expert to testify. The jury returned a verdict for the defendant. The appellate court

reversed and remanded finding that the defendant’s expert was improperly allowed to testify

because he rendered an opinion as to individuals in general, which had no relevant to the

plaintiff.

6. The Martin court also held the fact that other individuals had not suffered injuries

in low-impact vehicular crashes had no bearing on whether the plaintiff in particular suffered

injury in the particular crash. There was no indication that the defendant’s expert laid an

adequate foundation establishing that the information upon which the expert based his opinion

was reliable. Additionally, there was no indication in the record that the defendant’s expert

considered the plaintiff’s height, weight, and age, whether the plaintiff wore her seat belt, how

she was seated, or whether she had pre-existing conditions at the time of the crash. Id.

7. Similarly, in Whitting v. Coultrip (324 Ill.App.3d 161, 755 N.E.2d 494 (3d. Dist.


2001)) the plaintiff brought suit against the defendant for back injuries she sustained in a 2 car

accident. The trial court allowed the defense to introduce testimony of a biomechanical engineer

that the amount of force experienced by plaintiff due to the collision was not sufficient to cause

her injuries. The appellate court held that the trial court erred in allowing such testimony as the

defendant failed to prove that the methods of study employed by the biomedical engineer were

both generally accepted and reliable. Id. The appellate court held that the biomedical engineer’s

testimony was “novel scientific evidence” and did not involve a firmly established technique. Id.

Further, the Whitting court found no Illinois cases wherein a biomedical engineer was even

certified as an expert, let alone permitted to testify that a plaintiff’s injuries were not consistent

with the type of accident sustained. Id.

8. Here, Defendant’s expert suffers the same inadequacies as the experts in Martin

and Whitting. Defendant’s expert’s opinion, while couched in terms applying this matter to Ms.

Christus, is really a general opinion that people involved in this type of accident cannot be

injured because they experience greater forces in everyday life. Defendant’s expert does not take

into account the plaintiff’s height, weight, age, vehicle type, pre-existing medical conditions,

position at the time of the accident, whether she was wearing a seat belt, or the type of vehicle

the defendant was driving. Defendant’s expert simply opines that the forces are too low.

Further, Defendant’s expert does not perform any sort of analysis other than looking at photos

damage on the bumper of one car involved. He performed no reconstruction, no testing, and no

computer models, did not personally view the scene of the occurrence, did not personally view

the damage to either vehicle, and did not do any scientific analysis. He merely looked at the

photos and stated that based on his experience, the damage is consistent with a crash at less than

2.5 miles per hour. Defendant’s expert then uses this 2.5 mph number as the basis for the


remainder of his opinions. As such, there is no way to challenge the expert’s opinion, rather, the

Plaintiff is more-or-less forced to take the defense expert’s word on the matter. Because of this,

his opinions should be barred.

B. Chiodo’s opinions regarding speed and force lack adequate foundation and are not actually specific to Ms. Christus or this occurrence, and should be barred.

9. Second, Chiodo’s opinions fail to satisfy the foundation requirements for

admissible evidence because they are based on assumptions, estimations, approximations and

guesses. In Illinois, the admission of an expert’s opinion testimony requires the proponent to lay

an adequate foundation establishing that the information upon which the expert bases his opinion

is reliable. Martin v. Sally, 341 Ill.App.3d 308, 315-16 (2nd Dist. 2003). An expert witness may

not testify an opinion as to individuals in general without any relevance to the plaintiff. Id.

10. All of Chiodo’s opinions rely on generalities, assumptions, and guesses. For

instance, Chiodo opines that since the Plaintiff would have experienced more force getting into

the car, it is not probable that she was injured in the accident (Report, p. 5). In support of this

opinion, Chiodo relies on one article published in 1994 which discussed the forces experienced

during every-day activities. However, Chiodo concedes that there are no studies which suggest

just how much force a human must experience to sustain and injury. Specifically, when asked at

his evidence deposition as to whether there is any literature on the issue, he testified “I don’t

believe that such a guideline exits that would be generally accepted and authoritative.” As such,

despite being of the opinion that there is no generally accepted literature as to the threshold a

human must experience to be injured, he can say that an injury did not occur in this accident.

11. Essentially, Chiodo’s opinion is based on semantic tricks, logical sleight of hand,

and the misuse of scientific literature and principles. When boiled down to its basic premise,


Chiodo’s opinion is that the forces of the collision are of less magnitude as the accelerations of

every-day noninjurious activities such as sneezing or plopping in a chair, and, as such, could not

have been caused by the occurrence.

12. The reasoning offered by Chiodo, that if a one event (a crash) has lower forces

than an innocuous activity like sneezing then it logically follows that the crash has less injury

potential as the innocuous activity. The basis for Chiodo’s claim is a paper by Allen, et al

published in 1994. The claim is a semantic and logical trick; the fact that a rear impact collision

may produce less force than a sneeze does not mean that the collision and sneeze are comparable

in any other respect, including injury potential, and Chiodo offers no testimony as to how exactly

these events are comparable. Such comparisons are designed solely to mislead. Motor vehicle

crashes produce 2.9 million non-catastrophic spine injuries annually in the United States, and

result in 500,000 to 900,000 cases of permanent pain. It is illogical to nullify the 40-60% of these

injuries that occur in the presence of minimal vehicle damage with a study of people sneezing

and plopping in chairs.

13. Further, the entire basis for Chiodo’s causation opinion in this matter is his speed

“estimation” of less than 2.5 mph. Here, again, Chiodo concedes that he performed no

investigation or study other than looking at photographs of the damage to Plaintiff’s vehicle.

Chiodo did not perform an accident reconstruction, did not visit the location of the occurrence,

did not create any computer models, did not personally view either vehicle in the collision, and

did not recreate the accident in any way to confirm his speed estimation in this case. As such, it

is no more valid than the court looking at the photos and saying the accident must have been

“about 2.5 mph.” With such reliability, the opinion must be barred. Because it is the basis for

the remainder of his opinions, those opinions too must be barred.


14. As stated above, in Martin v. Sally, the Second District Court held that the trial

court erred by allowing the defendant’s retained accident reconstructist to testify that the motor

vehicle collision did not cause injury to plaintiff. 341 Ill.App. 3d at 315-16. The Court held that

the expert’s opinions lacked adequate foundations because the expert did not base his opinions

on the specific facts of the occurrence but rather on generalities. Id. The Appellate Court

admonished the trial court for permitting the expert’s testimony, stating:

The fact that other individuals in general might not suffer injuries in low-impact vehicular crashes has no bearing on whether [a] particular plaintiff might have suffered injury in this particular crash. Id. 15. Again, here, Chiodo’s opinions, while couched in terms applying to Ms. Christus,

do not actually have any direct application to this occurrence or to Ms. Christus. Chiodo did not

account for the plaintiff’s height, weight, age, gender, how she was seated in the vehicle, whether

she had any pre-existing conditions, whether she was wearing a seat-belt, and did not account for

any particularities (e.g. type of vehicles, weight of vehicles, duration of impact, etc.) of this

particular collision other than his “estimation” of speed.

16. The Defendant cannot be permitted to confuse a jury by attempting to present

evidence that does not apply specifically to Mr. Christus but, rather, to accidents in general.

Furthermore, this “expert” should not be permitted to substitute into the trial as an additional

eyewitness by contriving the facts of the eyewitnesses with no scientific basis. It does not take a

special expertise to read depositions and come up with a random formula to support one version

of the facts; however, it does usurp the jury’s decision-making province as it robs them of the

ability to review the testimony of both parties and come to a determination based on credibility

and the factual evidence before them.

C. Chiodo’s Opinions do not Assist the Trier of Fact, as Required by Rule 702, and Should be Barred.


14. Rule 702 provides that expert testimony is admissible “if scientific, technical, or

other specialized knowledge will assist the trier of fact to determine a fact in issue.” Here,

Defendant’s expert’s opinions do no such thing.

15. Here, when you remove the semantics and false logic Chiodo testifies to, his

“expert” opinion boils down to offers an opinion that it is unlikely for someone to get hurt in a

low speed accident. Simply because an event is unlikely does not mean it is impossible. It is

unlikely that I will win the lottery in my lifetime. However, assuming I purchase lottery tickets,

it is not impossible. The only opinion even based on this accident is his speed estimation which

merely goes to confirm that this was a low-speed impact. Plaintiff is perfectly willing to

acknowledge that this impact was a low-speed impact. All parties testify as to approximate

speeds, which are all low. No one is disputing this issue. Further, the jury will hear from a

medical doctor who will opine that the injury was caused by the occurrence. Should the jury find

that opinion not credible based on the testimony of how the accident occurred, and the

description of the impact by the parties, they are able to reach their own conclusion as to

causation. As such, Defendant’s “expert” opinion should be barred as it does not assist the trier

of fact.

WHEREFORE, Plaintiff, ATHENA CHRISTUS, by and through her attorneys,

ROMANUCCI & BLANDIN, respectfully requests this Honorable Court enter an order barring

any mention including testimony, questioning, statement, remark argument and/or any other

reference that the Plaintiff was contributorily negligent in this matter, and ruling, in limine, that

the jury instructions in this matter be tendered with no reference or evaluation of contribution or

allocation of fault in this matter.

Respectfully submitted,


ROMANUCCI & BLANDIN, LLC By: _______________________________ Attorney for Plaintiff Michael E. Holden ROMANUCCI & BLANDIN, LLC 321 N. Clark St.; Ste. 900 Chicago, Illinois 60654 Tel: (312) 458-1000 Fax: (312) 458-1004 Email: [email protected] Atty. No. 35875




PLAINTIFF’S MOTION IN LIMINE NO. 2 BARRING DEFENSE FROM SHOWING PICTURES OF DAMAGED VEHICLES


ROMANUCCI & BLANDIN, and (pending this Court’s ruling on Plaintiff’s Motion in Limine

No. 1) moves this Honorable Court to bar defense from showing pictures of the damaged

vehicles to imply the low damage on the car correlates to the injuries sustained by Athena

Christus. In support thereof, Plaintiff states as follows:

1. Should this Court grant Plaintiff’s Motion in Limine No. 1, and bar Defendant’s

expert from testifying in this matter, Plaintiff would further move this Honorable Court to bar the

defense from showing pictures of the damaged vehicles to imply the low damage on the car

correlates to the injuries sustained by Athena Christus (should this court deny Plaintiff’s Motion

in Limine No. 1, Plaintiff concedes that the photos would be admissible in this matter).

2. As a direct and proximate cause of the May 24, 2007 collision, Plaintiff has

alleged that she sutained injuries to her back. Further, her physician, Dr. Frank, will testify that

those injuries were caused by the motor vehicle accident. Plaintiff anticipates that, if the defense

expert in this matter is barred, that the defendant would attempt to offer photos of the damage

sustained by Ms. Christus’ car. However, the admission of such photos should be barred under


Rule 403, and risks that the jury would draw improper inferences as to whether the damage is

consistent with injuries sustained by the Plaintiff.

3. It is within the discretion of the trial court to decide whether evidence is relevant

and admissible. Ferro v. Griffiths, 361 Ill.App.3d 738, 742, 297 Ill.Dec. 194, 836 N.E.2d 925

(2005). Evidence is relevant if it has “‘any tendency to make the existence of any fact that is of

consequence to the determination of the action more or less probable than it would be without

the evidence.’ ”DiCosola v. Bowman, 342 Ill.App.3d 530, 535, 276 Ill.Dec. 625, 794 N.E.2d 875

(2003) (quoting Wojcik v. City of Chicago, 299 Ill.App.3d 964, 971, 234 Ill.Dec. 137, 702

N.E.2d 303 (1998)). The critical question in admitting photographs into evidence is whether the

jury can properly relate the vehicular damage depicted in the pictures to the injury without the

aid of an expert. Ferro, 361 Ill.App.3d at 743, 297 Ill.Dec. 194, 836 N.E.2d 925. This is an

evidentiary question that the trial judge must resolve. Ferro, 361 Ill.App.3d at 743, 297 Ill.Dec.

194, 836 N.E.2d 925.

4. In DiCosola, the plaintiff was stopped in a Dominick’s parking lot aisle waiting

for someone to back out of a spot, when the defendant, who was not looking at the plaintiff’s

vehicle, drove her vehicle through a parking space and collided with plaintiff’s car. DiCosola,

342 Ill.App.3d at 532 (2003). The trial court granted plaintiff’s motion in limine to exclude

photographs of the vehicle damage because they were irrelevant. Id. at 533-535. In DiCosola, the

Illinois Appellate Court affirmed the trial court’s decision to grant plaintiff's motion in limine to

exclude the photographs of the vehicles because they were irrelevant to any issues in the case.

DiCosola v. Bowman, 342 Ill.App.3d 530, 535, 276 Ill.Dec. 625, 794 N.E.2d 875 (2003). The

Appellate Court reasoned that “no Illinois case stands for the proposition that photographs

showing minimal damage to a vehicle are automatically relevant and must be admitted to show


the nature and extent of a plaintiff's injuries. There simply is no such bright-line rule that

photographs depicting minimal damage to a post-collision vehicle are automatically admissible

to prove the extent of a plaintiff's bodily injury or lack thereof.” DiCosola, 342 Ill.App.3d at 535,

276 Ill.Dec. 625, 794 N.E.2d 875; See also Baraniak v. Kurby, 371 Ill. App. 3d 310, 318 (1st

Dist. 2007) (Appellate Court affirms trial court’s decision to bar accident photos from being used

to show extent of injuries). Similarly, in the case at issue, the photographs of the vehicles are

also irrelevant to any issues in the case, other than to mislead and confuse the jury. Thus, the

prejudicial effect far outweighs the probative value of these photographs.

5. Furthermore, the Illinois Appellate Court in DiCosola cited to the case of Davis v.

Maute, 770 A.2d 36 (Del. 2001), in which, the Delaware Supreme Court held that a party in a

vehicular personal injury case generally may not argue that there is a correlation between the

extent of vehicular damage and the extent of a person’s injuries caused by the accident in the

absence of expert testimony on that issue and may not rely on photographs of the vehicle(s)

involved to indirectly accomplish the same purpose because “absent such expert testimony, any

inference by the jury that minimal damage to the plaintiff’s car translates into minimal personal

injuries to the plaintiff would necessarily amount to unguided speculation.” DiCosola at 537-538

citing to Davis, 770 A.2d at 40. Similarly, defense is indirectly trying to accomplish a correlation

between the extent of the vehicular damage and Athena Christus’ injuries, and would be

allowing the jury to speculate without any guidance and is only serving to prejudice the jury

against the Plaintiff.

6. Moreover, the parties have agreed to stipulate to points of contact, so there is no

need to show photographs of the vehicles, other than to prejudice the jury. Thus, the prejudicial

effect of the photographs outweighs the probative value of them.


7. Furthermore, in the case of Maple v. Gustafson, the jury considered expert

medical testimony presented by the defendant to show that the plaintiff sustained no injury.

Maple, 151 Ill.2d 445, 177 Ill. Dec. 438, 603 N.E.2d 508 (1992). Expert testimony is required to

show a proper correlation between the extent of the vehicular damage and the nature and extent

of plaintiff's injury. Without expert testimony from an expert who can speak to the correlation

between vehicular damage and injuries, defense must be barred from making the argument that

the low damage to the car correlates to the extent of Ms. Christus’ injuries.



defense from showing pictures of the damaged vehicles to imply the low damage on the car

correlates to the injuries sustained by Athena Christus.

Respectfully submitted, ROMANUCCI & BLANDIN, LLC By: _______________________________ Attorney for Plaintiff Michael E. Holden ROMANUCCI & BLANDIN, LLC 321 N. Clark St.; Ste. 900 Chicago, Illinois 60654 Tel: (312) 458-1000 Fax: (312) 458-1004 Email: [email protected] Atty. No. 35875




PLAINTIFF’S MOTION IN LIMINE NO. 3 TO BAR ANY EVIDENCE OF A “SUDDEN STOP” BY PLAINTIFF


ROMANUCCI & BLANDIN, and moves this Honorable Court to bar any mention including

testimony, questioning, statement, remark argument and/or any other reference that, immediately

prior to the accident Plaintiff made a “sudden stop,” stopped quickly, or any testimony suggested

that Plaintiff stopped in a manner that prevented the defendant from avoiding the collision. In

support thereof, Plaintiff states as follows:

1. Liability is indisputable in this case. According to the testimony of both Plaintiff

and Defendant, Defendant rear-ended Plaintiff’s vehicle when it stopped at a yellow turn arrow

at the intersection of Skokie Blvd. and Golf Rd. in Skokie, Illinois.

2. At deposition, the defendant testified as follows:

Q: At some point did the car in front of you begin to move? A: Yes. Q.: And then tell me what happened.

A: Okay. When that light turns green, everybody was moving to the – to turn to the left. And the light turns yellow. She was about to leave. She was about to turn, but she could have turned left and I could have turned left. There was plenty of time when the light was yellow. And she didn’t turn left, and she


stopped. And while she braked her car, I have to brake too, and it was a minor bump to her car.

(Depo. Kassim, p. 26:4-26:18).

*** Q: After the green turn signal went on and you went forward, you said it turned

yellow again and then the gold car stopped, right? A: (nodding head) Q: Yes? A: Yes. Q: So when the gold car stopped at that point it was the first car, right? A: Yes. Q: Okay. And at that point, was the gold ar still in the left turn lane? A: Yes. Q: It wasn’t in the intersection or anything, right? A: That, I don’t remember. It was not the intersection. Q: You were still in the left turn – A: Yes.

Q: -- lane, right? Just so I understand you correctly, when you saw the light was yellow, you thought there was enough – there was enough time to go, right?

A: Yes. Q: So you were expecting to go through the intersection, yes? A: Yes.

Q: And then at some point you realized that the gold car was stopping and so you tried to stop too, right?

A: Yes. (Depo. Kassim, p. 30:10-31:15). 3. At no point in time did Ms. Kassim testify, imply, or otherwise suggest that there

was anything about the manner in which the plaintiff stopped her car that was “sudden.” At

most, her testimony suggests that she was not paying attention to Ms. Christus’ car until she

began to stop, which is why she was unable to stop before making contact with the plaintiff’s

car.

4. Further, Defendant’s 213 disclosures say nothing to suggest that the Defendant is


going to offer testimony that Plaintiff’s stop was “sudden.” Defendant’s disclosure states: “Ms.

Kassim is expected to testify concerning her actions and observations before, at the time of, and

after the occurrence, her background and experience, and other matters, opinions, and facts

addressed in her deposition.”

5. To now allow the Defendant, or any other defense witness, to offer testimony that

that stop was sudden is not consistent with the evidence gathered in the discovery of this matter,

and would be prejudicial to Plaintiff in presenting this matter to the jury.




reference that, immediately prior to the accident Plaintiff made a “sudden stop,” stopped quickly,

or any testimony suggested that Plaintiff stopped in a manner that prevented the defendant from

avoiding the collision





PLAINTIFF’S MOTION IN LIMINE NO. 4 TO BAR DEFENDANT FROM MAKING A CLAIM FOR CONTRIBUTORY

NEGLIGENCE


ROMANUCCI & BLANDIN, and moves this Honorable Court to bar any mention including

testimony, questioning, statement, remark argument and/or any other reference that the Plaintiff

was contributorily negligent in this matter. In support thereof, Plaintiff states as follows:

1. Plaintiff in this matter anticipates that Defendant may attempt or interject that an

Plaintiff is somehow contributorily negligent in causing her injuries. However, a defense of

"contributory negligence" is an affirmative defense and must be pleaded and proved by

Defendant. See, Grote v. Estate of Franklin, 214 Ill. App. 3d 261, 573 N.E.2d 360 (2nd Dist.

1991); Burns v. Grezekn, 155 Ill. App. 3d 294, 508 N.E.2d 449 (2nd Dist. 1987); Hoggart v.

Melin, 29 Ill.App.2d 23, 172 N.E.2d 389 (3rd Dist 1961).

2. An affirmative defense not timely pleaded cannot be considered, even if

evidence suggests its existence. First National Bank of Lake Forest v. Village of Mundelien,

166 Ill.App.3d 83, 519 N .E.2d 476 (1988).

3. During the time this action has been pending, Defendants have failed to


file any affirmative defenses or special defenses alleging that Plaintiff was contributorily

negligent. To allow the Defendant at this late stage to inject a contributory negligence defense

would be untimely and severely prejudice the rights of the Plaintiff in this case.

4. Furthermore, such defense is not supported by the evidence gathered during the

course of discovery in this matter. The only potentially conceiveable allegation the defendant

could make that that Plaintiff was contributorily negligent in this matter is that Ms. Christus

stopped suddenly. As discussed in Plaintiff’s previous Motion in Limine, the defendant has not

offered any testimony or evidence that the Plaintiff stopped suddenly, or somehow created a

situation that made this accident unavoidable. To now allow the Defendant, or any other defense

witness, to offer testimony that that stop was sudden is not consistent with the evidence gathered

in the discovery of this matter, and would be prejudicial to Plaintiff in presenting this matter to

the jury.

5. As such, there is no evidence, and no affirmative defense has been plead

supporting a claim for contributory negligence, and any such arugment, reference, or suggestion

should be barred during the course of this trial.

6. Further, Plaintiff would ask this court to proffer jury instructions in this matter

which omit any reference to contributory negligence and which do not ask the jury to make any

evaluation as to allocation of fault in this matter.




reference that the Plaintiff was contributorily negligent in this matter, and ruling, in limine, that

the jury instructions in this matter be tendered with no reference or evaluation of contribution or


allocation of fault in this matter.












1

Evidence & Objections: Laying Foundations for Introducing and Raising and Rebutting Evidence

Tangible Objects

• Exhibit can be identified visually, or through other senses. • Witness recognizes the exhibit. • Witness knows what the exhibit looked like on the relevant date. • Exhibit is in the same or substantially the same condition now as when the

witness saw it on the relevant date. Chain of Custody (2 methods)

• Show that the exhibit has been in one or more persons' continuous, exclusive, and secure possession at all times; or

• Show that the exhibit was in a uniquely, marked, sealed, tamper-proof container at all times.

Photographs, motion pictures and videotapes

• Witness is familiar with the scene portrayed in the photograph. • Witness is familiar with the scene at the relevant date (and time, if important). • Photograph "fairly and accurately" shows the scene as it appeared on the

relevant date. Diagrams, models, and maps

• Witness is familiar with the scene represented by the diagram, model, or map. • Witness is familiar with the scene at the relevant date (and time, if important). • Reasonably accurate or to scale. • Useful in helping the witness explain his testimony to the jury.

Recordings

• Witness must be able to testify that the recording is an accurate reproduction of the events involved.

• Both the equipment used to record the original event and the equipment used to show it in court must be in good working condition.

• Witness must be able to identify the scenes, person, or voices on the tape • Recording was securely stored to prevent the possibility of erasing, editing, or

other tampering. Computer Generated Graphics and Animation

• The data used by the expert and put into the computer program are accurate. • The integrity of the data was maintained. • Data were accurately transferred into a properly functioning computer. • The computer software program used to create the animation is based on valid

and accepted scientific methodology. • The computer animation accurately reflects how the event happened. • The computer animation will help the jury understand or determine a fact in

issue.

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Signed Instruments • May be authenticated by any of the following:

o A witness who saw the party place his signature on the document. o A witness who is familiar with party's signature and can identify it. o The signing party as an adverse witness to admit the signature is his. o A handwriting expert who can testify that, based on handwriting o comparisons, the signature was made by the party.

Business Records (witness)

• Witness is the "custodian or other qualified witness." • Record is a "memorandum, report, record or data compilation." • Record was "made by a person with knowledge" of the facts or was "made

from information transmitted by a person with knowledge" of the facts. • Record was "made at or near the time" of the "acts, events, conditions,

opinions, or diagnoses" appearing on it. • Record was made as part of "the regular practice of that business activity." • Record was "kept in the course of a regularly conducted business activity.

Letters

• Witness received the letter. • Witness recognizes the signature as the other party's. • Letter is in the same condition today as when first received.

Copies

• Original once existed. • Copy of the original was made. • Copy was true and accurate. • Original was unintentionally lost or is unavailable, etc. • A thorough search for the original in every possible location failed to produce

it. Habit (custom and practice)

• Have a habit, custom or practice. • Conduct is automatic or invariably regular under the circumstances. • Followed the habit.

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CASE AND RULE ANALYSIS Business Records

• The admission of business records into evidence is governed by Illinois Supreme Court Rule 236 which states:

(a) Any writing or record, whether in the form of any entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter.... The term "business," as used in this rule, includes business, profession, occupation, and calling of every kind. 145 Ill. 2d R. 236.

Computer Records

• In Grand Liquor Co. v. Department of Revenue, the Illinois Supreme Court held that computer records are admissible as business records if the equipment itself is shown to be standard, the entries were made in the regular course of business at or near the time of the transaction, and the source of information and method and time of the preparation shows the records to be trustworthy. Grand Liquor Co. v. Dep’t of Revenue, 67 Ill. 2d 195, 202 (1977).

• The cases make a distinction between "computer-generated" and "computer--

stored" data. People v. Holowko, 109 Ill. 2d 187, 191-92 (1985).

In Holowko, the court explained that computer-generated data, such as that recorded spontaneously to track incoming telephone calls, are generally admissible as representing the tangible result of the computer's internal operations. Holowko, 109 Ill. 2d at 191-92. Absent some infirmity in the underlying source material or the way in which the program is set up, a computer print-out of the spontaneously created data is reliable enough to satisfy the foundation requirement of a business record. People v. Casey, 225 Ill. App. 3d 82, 89 (1st Dist. 1992). To be admissible, all that must be shown is that the recording device was accurate and operating properly when the evidence was generated. People v. Houston, 288 Ill. App. 3d 90, 98 (4th Dist. 1997). In contrast, computer-stored data, constitutes statements placed into the computer by out-of-court declarants and therefore cannot be tested by cross-examination unless the statements fall under a hearsay exception. Holowko, 109 Ill. 2d at 191. Computer printouts of this type of information are admissible under the business records exception to the hearsay rule if it is shown that (1) the business uses electronic computer equipment recognized as standard; (2) the entries are made in the ordinary course of business reasonably close in time to the event recorded; and (3) the court is satisfied that the

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sources of information and the mode and time of preparation indicate trustworthiness. People v. Universal Public Transp., Inc., 401 Ill. App. 3d 179, 197 (1st Dist. 2010).

• As a general rule, emails, texts, and tweets are considered hearsay and will

therefore not be admitted unless they meet an exception to the hearsay rule, such as the business records exception. In Integrated Genomics, Inc. v Kyrpides, No. 06-C-6706, 2008 WL 630305, at *5 (N.D. Ill. 2008), an email was admitted as a party admission. In Ware v. LaSalle Bank Corp., No. 07-C-3974, 2008 WL 5083127, at *6 (N.D. Ill. 2008), the court held that an email objected to by the plaintiff was not hearsay and could be admissible as a present sense impression.

• Where e-mail messages are not properly authenticated, they will not be

admitted as evidence. CCP Ltd. P’ship v. First Source Fin., Inc., 368 Ill.App.3d 476, 499 (1st Dist. 2006). In CCP Limited Partnership, e-mails attached to a summary judgment motion were inadmissible when the Bank failed to properly authenticate the e-mails. Id. The sworn affidavit attesting to the e-mail’s authenticity was insufficient where the author had no personal knowledge of the receipt of the email. Id. Similarly, in Complete Conference Coordinators, Inc. v. Kumon North America, Inc., the court held that the mere fact that the defendant produced in discovery certain print-outs of e-mail messages allegedly created by her was insufficient to authenticate the messages and thus they were inadmissible. Complete Conference Coordinators, Inc. v. Kumon N. Am., 394 Ill. App. 3d 105, 108-09 (2d Dist. 2009).

• However, in Wilgus v. Cybersource Corporation, the court reversed the trial

court's grant of summary judgment against the plaintiff, finding that the e-mails held inadmissible by the trial court on the basis of hearsay and/or parol evidence were admissible, since the defendant in the case had also relied on them in support of its motion for summary judgment. Wilgus v. Cybersource Corp., 393 Ill. App. 3d 1039, 1049 (5th Dist. 2009).

• The Third District allowed e-mails into evidence by likening the emails to the

standards applicable to authenticate reply letters. People v. Downin, 357 Ill. App. 3d 193, 202-03 (3d Dist. 2005). In Downin, the court held that the trial court did not abuse its discretion in admitting into evidence two printed versions of e-mails purportedly sent by the defendant to the victim and which contained admissions of guilt, despite claims that the e-mails were not sufficiently authenticated. The court explained that in admitting such evidence, the prosecution need only prove a rational basis upon which the fact finder may conclude that the exhibit did in fact belong to the defendant. The court further explained that an e-mail message may be authenticated by direct or circumstantial evidence, that circumstantial evidence of authenticity includes such factors as appearance, contents, and substance, and that prima facie authorship of a message may include a showing that the writing contains knowledge of a matter sufficiently obscure so as to be known to only a small

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group of individuals. In the present case, the court pointed out that although the defendant argued the characteristics of e-mails precluded the application of standards used to authenticate reply letters, the similarities between the two offered guidance in determining the authenticity of the e-mail copies.

Medical Records

• The admission of medical records is treated as a business record and governed by Illinois Supreme Court Rule 236. Krengiel v. Lissner Corp., 250 Ill. App. 3d 288, 295 (1st Dist. 1993). Committee Comment (b) explains "the rule was amended in 1992 to allow medical records to be treated as any other business record under paragraph (a)." 145 Ill. 2d R. 236. However, the medical records must still be established as business records. In a recent decision by the Third District, the appellate court held that a trial court was still authorized in a parent’s medical malpractice action against the doctor and doctor’s employer to bar the medical records from a subsequent treating physician because the parent’s failed to establish a sufficient foundation that the records were in fact business records. Jackson v. Reid, 402 Ill. App. 3d 215 (3d. Dist. 2010).

• In Troyan v, Reyes, the court held that diagnoses and opinions contained in

medical records should be admissible and published to the jury as a proper part of the business records exception to the hearsay rule, even without "live testimony." The Troyan decision is a departure from Kelly v. Heinz Construction Co., 282 Ill. App. 3d 36 (4th Dist. 1996), which held that medical records could not be admitted as evidence without "live testimony." In reaching its decision, the Troyan court reasoned that, like other business records, medical records are inherently reliable because they are generated by those who have no reason to prevaricate and must rely on their accuracy. The court concluded that because medical records meet the foundational requirements of a business record, a custodian of the records, who is not the author of the records, may admit the records into evidence. Troyan v. Reyes, 367 Ill. App. 3d 729 (3d Dist. 2006).

Medical Bills

• The Illinois Supreme Court described the admissibility of medical bills for the purpose of recovering medical expenses in Peterson v. Lou Bachrodt Chevrolet Co. In that case, the plaintiff sought to recover the reasonable value for his son's medical services, although they had been provided free-of-charge by a children's hospital. The Court held that the plaintiff could not recover for those services, reasoning that the "policy behind the collateral-source rule is not applicable if the plaintiff has incurred no expense, obligation, or liability in obtaining the services for which he seeks compensation." Peterson v. Lou Bachrodt Chevrolet Co., 76 Ill. 2d 353, 362 (1979).

• The Illinois Supreme Court revisited the issue 26 years later in Arthur v. Ca

tour, and endorsed the view that the benefit of free medical services for the plaintiff should not become a windfall for a defendant who no longer has to

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pay those damages. This was in stark contrast to the views of the Peterson Court, yet Arthur did not overrule Peterson. The Arthur Court determined that a plaintiff is allowed to recover for medical expenses if he or she proves (1) that he or she has paid or become liable to pay a medical bill, (2) that he or she necessarily incurred the medical expenses because of injuries resulting from the defendant's negligence, and (3) that the charges were reasonable for services of that nature. When evidence is admitted, through testimony or otherwise, that a medical bill was for treatment rendered and that the bill has been paid, the bill is prima facie reasonable. A party seeking admission into evidence of a bill that has been paid can establish reasonableness by introducing the testimony of a person having knowledge of the services rendered and the usual and customary charges for such services. Once the witness is shown to possess the requisite knowledge, the reasonableness requirement necessary for admission is satisfied if the witness testifies that the bills are fair and reasonable. Defendants are also free to challenge plaintiff's proof on cross-examination and to offer their own evidence pertaining to reasonableness of the charges. The defendant may rebut the prima facie reasonableness of a medical expense by presenting proper evidence casting suspicion upon the transaction. Arthur v. Catour, 216 Ill. 2d 72, 81-83 (2005).

• In Wills v. Foster, the Supreme Court finally addressed the discrepancies

between Peterson and Arthur, and officially overruled Peterson after finding its reasoning incompatible with the reasonable-value approach adopted in Arthur. In Wills, the trial court followed Arthur and determined that a plaintiff is not limited to recovering only the medical expenses paid by Medicare and Medicaid. The appellate court disagreed, holding that a plaintiff is precluded from recovering more than what Medicare and Medicaid paid. The appellate court reasoned that the case was distinguishable from Arthur because the plaintiff in Wills did not incur liability for her medical expenses, did not bargain for coverage and did not pay any premiums as part of a contractual relationship. However, the Supreme Court applied Arthur's reasonable-value approach and reversed, holding that "the fact that the collateral source was the government instead of a private insurance company is a distinction without a difference. All plaintiffs are entitled to seek to recover the full reasonable value of their medical expenses." Wills v. Foster, 229 Ill. 2d 393 (2008).

• Proper subjects of a request to admit are both the necessity and reasonableness

of a medical bill incurred by a plaintiff to treat his or her injuries. Szczeblewski v. Gosset, 342 Ill. App. 3d 344 (5th Dist. 2003). In Szczeblewski, the plaintiff sent the defendant a Request to Admit Facts that the attached bill represented charges for services, which were reasonable and necessary and were fair and reasonable charges for the services performed. Defendant responded that he could neither admit or deny the request for admission of fact in that it requires someone to give a medical opinion which he is not qualified to do and defendant had insufficient knowledge to admit or deny. The court concluded that a defendant's conduct as to the cause of an occurrence, the necessity and

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reasonableness of the medical services a plaintiff received, are all facts that are proper subjects for a Supreme Court Rule 216 Request to Admit. Moreover, a party that receives a Request to Admit has a good faith obligation to make a reasonable effort to secure answers to Requests to Admit and may not give lack of information or knowledge as a reason for their failure to admit or deny unless the party has made such a reasonable inquiry. Accordingly, defendant's attorney, insurance investigators or representatives must avail themselves to respond to the requests. In the end, the court ordered the defendant to answer the requests. Szczeblewski v. Gosset, 342 Ill. App. 3d 344 (5th Dist. 2003).

Government Documents

• The admission of government documents into evidence is governed by Illinois Supreme Court Rule 216(d), which states:

If any public records are to be used as evidence, the party intending to use them may prepare a copy of them insofar as they are to be used, and may seasonably present the copy to the adverse party by notice in writing, and the copy shall thereupon be admissible in evidence as admitted facts in the case if otherwise admissible, except insofar as its inaccuracy is pointed out under oath by the adverse party in an affidavit filed and served within 14 days after service of the notice. 145 Ill. 2d R. 216(d).

• Hence, government documents are admissible into evidence provided that the

party intending to use them prepares a copy of the document and seasonably presents the copy to the adverse party by notice in writing.

Self-Authenticating Documents, i.e. certified copies

• The new Illinois Rule of Evidence 902 provides that extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to copies of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office. Ill. R. Evid. 902(4).

• Thus, certified copies of public records are self-authenticating. A record is

certified when there is a statement attached to it stating that the record is in fact a record from that public agency. It typically bears the seal of the agency. Accordingly, no witness is necessary to qualify the exhibit for admission. The certified copy need only be offered into evidence and then published to the jury.

Documents Reasonably Relied upon by Experts in the Field

• An expert is entitled to rely on facts not in evidence if they are the type of facts reasonably relied upon by experts in the field. In Wilson v. Clark, the Illinois Supreme Court adopted Federal Rules of Evidence 703 and 705. The court determined that even though the trial court improperly admitted hospital

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records into evidence, the expert witness was still allowed to rely on those same records in reaching his decision since hospital records were facts of the type reasonably relied upon by experts in the field. The court noted that the key element in applying FRE 703 is whether the information upon which the expert bases his opinion is of a type that is reliable. The court also noted under FRE 705 the burden is placed upon the adverse party during cross-examination to elicit the facts underlying the expert opinion. The advisory committee's note to FRE 705 allows an expert opinion without disclosure of underlying facts whether the opinion is based on firsthand or secondhand information. Wilson v. Clark, 84 Ill. 2d 186, 192-95 (1981). The new Illinois Rules of Evidence 703 and 705 substantively reflect FRE 703 and 705.

• The following are particular types of information that, generally, can be relied

upon if shown that they are reasonably relied upon by experts in the field:

• Reports and medical records prepared by others. See People v. Anderson,113 Ill. 2d 1 (1986).

• Patient progress notes relied upon by a psychiatrist. People v. Scott, 148 Ill. 2d 479 (1992).

• Audits and financial reports in ascertaining the financial status of a company of individual.

• Handwriting samples in conducting a handwriting comparison. • Interviews and conversations with investigators and other experts. • Laboratory test results. • Safety codes. • Statistics and statistical models.

See 49 A.L.R. Fed. 363, 1 a, Richard Neumeg, What Information is of Type "Reasonably Relied Upon by Experts within Rule 703, Federal Rules of Evidence, Permitting Expert Opinion Based on Information Not in Evidence.

Judicial Notice

• Judicial notice is an alternative to the presentation of formal evidence. The judge relieves the parties of the duty to present evidence by noting a fact and informing the jury of the fact's existence. To be judicially noticeable, a fact must be either: (1) generally known within the territorial jurisdiction of the trial court, or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Thus, Illinois law recognizes two separate, independent bases for judicial notice: (1) the fact is a matter of common knowledge within the court's territorial jurisdiction, and (2) the fact is a readily verifiable certainty. See In re Marriage of Kohl, 334 Ill. App. 3d 867, 874 (1st Dist. 2002) (a court may take judicial notice of facts that are a matter of common and general knowledge and are well established and known within the court's jurisdiction); People v. Mata, 217 Ill. 2d 535, 539 (2005), as modified on denial of reh’g (Jan. 23, 2006) (a court may take judicial notice of matters that are readily verifiable from sources of indisputable accuracy); Illinois Evidentiary Foundations § 12-C, Judicial

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Notice, Matthew Bender & Co. (2004).

• The procedure for judicial notice varies. While most Illinois judges permit attorneys to orally request judicial notice during trial, some judges prefer that the attorneys submit judicial notice requests in writing before trial. The emerging view is that the procedure depends on the basis for judicial notice the party is invoking. If the party claims that the fact is a matter of common knowledge, the request can be informal. If the knowledge of the fact is widespread in the territorial area, the judge and attorneys should know the fact; and a formal hearing would be a waste of time. On the other hand, if the party claims that the fact is a readily verifiable certainty, the request should be written and supported by documentary material. For example, if the party requests judicial notice of a scientific principle, the party should submit at least documentary proof of the principle's validity. Illinois Evidentiary Foundations § 12-C, Judicial Notice, Matthew Bender & Co. (2004)

• Although not generally known, matters may be so capable of verification as to

be beyond reasonable controversy and hence proper subjects of judicial notice. Murdy v. Edgar, 103 Ill. 2d 384 (1984). Matters falling within this category are numerous and varied, and include: geographical facts, historical events, tables, statistics, and economic facts, the calendar, court personnel, acts and records of court, governmental matters and public records, scientific principles and authoritative treatises. Ill. Evid. Hand. Sec. 202.

Medical Literature

• Under Illinois common law, medical texts are hearsay and therefore inadmissible as substantive evidence. See Jackson v. Reid, 402 Ill. App. 3d 215 (3d Dist. 2010) (stating that “In Illinois, scientific and medical treatises are hearsay and are not admissible as evidence of the statements contained therein,” and holding that, therefore, exhibit containing one page of a medical article was inadmissible); Hoem v. Zia, 239 Ill. App. 3d 601, 624 (4th Dist. 1992). Even the most reliable medical authorities may not be used either in direct or cross-examination for the purposes of proving the statement asserted. Illinois courts merely allow experts to use medical literature as the basis of their testimony. The parties may also present the contents of medical texts to impeach an expert witness on cross-examination. A testifying expert, however, may not read aloud from a medical treatise upon which she based her opinion. Schuman v. Stackable, 198 Ill. App. 3d 209, 230 (5th Dist. 1990). The expert cannot summarize the finding in articles for the purpose of supporting his opinion. Mielke v. Condell Memorial Hosp., 124 Ill. App. 3d 42, 54 (2d Dist. 1984). Moreover, the summarizing of medical studies by the plaintiff's expert was found to be an improper attempt to recite the contents. Mielke, 124 Ill. App. 3d at 53. For a more detailed analysis See "Expanding the Use of Treatises in Illinois Trials," Terry Lavin, ILLINOIS BAR JOURNAL, Vol. 94 (August 2006).

• In Bowman v. University of Chicago Hospitals, testimony by experts that a

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given study or textbook was "standard," "well respected," "a good source" or "a very good book" was deemed sufficient to allow cross-examination with the literature in question. The court specifically discounted the fact that the witnesses failed to agree with the "magic" word "authoritative," saying, "We do not find the fact that neither expert used the term `authoritative' to be controlling." Bowman v. Univ. of Chi. Hosps., 366 Ill. App. 3d 577 (1st Dist. 2006).

• In Stapleton v. Moore, 403 Ill. App. 3d 147, 156-57 (1st Dist. 2010) reh'g

denied Aug. 13, 2010, the appellate court held that an undisclosed medical journal article could be used to impeach the plaintiff’s expert on cross-examination. “The disclosure requirements of Rule 213 simply do not apply to cross-examination of an opposing party’s opinion witness.” Id. at 156 (citing Skubak v. Lutheran Gen. Health Care Sys., 339 Ill. App. 3d 30, 32 (2003)). “Supreme Court Rule 213(g) does not require that a party disclose journal articles that the party intends to use in cross-examining the opposing party’s opinion witness.” Id. at 156-57 (citing Maffett v. Bliss, 329 Ill. App. 3d 562, 577 (2002)).

• While Illinois courts have not explicitly opined that Rule 237 mandates the

pre-trial production of medical literature with regard to expert testimony, it has been deemed “reversible error” to permit the utilization of undisclosed materials during cross-examination of the opposing party’s proffered witness. In Bianchi v. Mikhail, 266 Ill. App. 3d 767, 776-77 (1st Dist. 1994), the appellate court held that plaintiff was unfairly prejudiced and entitled to a mistrial when plaintiff’s expert was cross-examined with a laboratory manual that had not been previously disclosed in discovery and its use “completely nullified his testimony.” The court noted that plaintiff had the right to assume that defendant complied with the Rule 237 Notice to Produce, and because defendants failed to do so, plaintiffs were unable to effectively rehabilitate their own expert with the same manual. Id.

• Stapleton elaborates on the standard set forth in Darling v. Charleston Comm.

Mem. Hosp., 33 Ill. 2d 326, 336 (1965) (the leading case on laying foundation for the use of medical literature for purposes of cross-examination) by stating that cross-examination of a witness based on medical texts acknowledged as authoritative makes expert testimony “a more effective tool in the attainment of justice.” (quoting Ruffin v. Boler, 384 Ill. App. 3d 7, 25-26 (2008)). In addition, an expert witness at trial may establish the authoritativeness or reliability of an author of specific literature in the relevant field to which he or she is testifying; the rule is not restricted to only proving authoritativeness of the actual literature that is being relied upon by the expert. See Stapleton, 403 Ill. App. 3d at 158.

• Medical literature that post-dates the occurrence in question cannot be used to

demonstrate the standard of care at the time of the treatment in question. Bergman v. Kelsey, 375 Ill. App. 3d 612, 630 (1st Dist. 2007). This is because using post-occurrence literature as evidence of a deviation from the standard

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of care is akin to measuring the conduct of a physician to knowledge and standards not in existence at the time the conduct at issue occurred. Granberry v. Carbondale Clinic, 285 Ill. App. 3d 54, 65 (5th Dist. 1996). However, post--occurrence medical literature is allowed when used in relation to issues other than the standard of care, such as causation or the accuracy of a particular diagnostic tool. See, e.g. Granberry, 285 Ill. App. 3d at 65; McLaughlin v. Rush, 68 Ill. App. 3d 546, 552 (1st Dist. 1979). Courts have reasoned that when it is clear the party is attempting to use the post-occurrence literature to show something other than the standard of care, the post-occurrence literature is no longer highly prejudicial. Granberry, 285 Ill. App. 3d at 65.

• Federal Rule of Evidence 803(18) created the learned treatise exception to the

hearsay rule. The rule states that learned treatises can be properly admitted as substantive evidence "to the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination." The Illinois Supreme Court has declined to adopt Rule 803(18) and allow medical treatises to be admissible as substantive evidence. Roach v. Springfield Clinic, 157 Ill. 2d 29 (1993), however, the Bowman decision mentioned supra indicates Illinois courts may be moving away from their strict standard towards the federal standard.

Photographs

• Sufficient foundation for the introduction of a photograph can be made by the testimony of any person with personal knowledge of the object of the photograph or tapes at a time relevant to the issues, that the photograph or tape is a fair and accurate representation of the object at that time. People v. Thomann, 197 Ill. App. 3d 488 (4th Dist. 1990) (citing People v. Hebel, 174 Ill. App. 3d 1 (5th Dist. 1988)).

Reconstruction Testimony

• For accident reconstruction testimony to be admissible, there must be sufficient data about the accident in evidence to provide a reasonable basis for the expert's opinion. The admission of an expert's testimony lies with the sound discretion of the trial court. Turner v. Williams, 326 Ill. App. 3d 541, 553 (2d Dist. 2001). In Turner v. Williams, it was an abuse of discretion for the trial court to bar reconstruction testimony when there was a multitude of conflicting eyewitness testimony regarding the accident. Id.

• The existence of eyewitness testimony is not a conclusive factor in

determining whether accident reconstruction testimony is admissible. Instead, the threshold question is whether the expert's reconstruction testimony assists the jury in understanding scientific principles and enables it to make factual determinations. Watkins v. Schmitt, 172 Ill. 2d 193, 206 (1996).

• In Brown v. Ford, the appellate court affirmed the trial court's decision to

admit testimony from an accident reconstructionist and a videotape depicting a

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reconstruction of the accident. Defendant's reconstruction expert reviewed various depositions, examined the scene, and performed test crashes. The expert's reconstruction crash tests were videotaped and shown to the jury at normal speed and in slow motion. Over the plaintiff's objection, the court concluded that the videotape was admissible even though an eyewitness had already testified to the speed of the vehicle. In affirming the trial court's decision, the appellate court concluded that the videotape is admissible for its intended purpose if it fairly and accurately shows whatever it intends to show and if it is not unduly prejudicial. The court, in part, based its dcision on the principle that whether experimental evidence meets the criteria for admission is left to the trial court's sound discretion. Brown v. Ford, 306 Ill. App. 3d 314 (1st Dist. 1999).

Re-enactments, "Crash Tests" and Experiments

• In Schaffner v. Schwinn, the trial court allowed the defendant to use a juror to participate in an in-court demonstration. Schwinn's expert, DeLong, conducted a "spin test" before the jury where he held the front wheel of the bicycle, fork and handlebars by the stem, spun the wheel and exerted a slight twisting motion on the stem. The intent of the demonstration was to show the gyroscopic effect of the movement. Schwinn's counsel then asked the trial court whether a juror could participate in the demonstration. The court inquired whether there was any objection. As there was no objection, the court permitted the demonstration. DeLong stated that when the wheel was spun at an angle, it "should throw it over to this direction to the right." The juror tried it, and said, "It does throw it off. There is a force." Schaffner v. Chi. & N.W. Transp. Co., 161 Ill. App. 3d 742, 761-62 (1st Dist. 1987).

• The Schaffner court, while it frowned on the use of a juror in the experiment,

concluded that the plaintiffs and the railroad waived their rights to raise this issue on appeal because they failed to object at trial when the trial court expressly asked the parties whether they had any objection to the demonstration. Moreover, the court determined it is within the trial court's discretion to determine whether demonstrative evidence may be permitted for the purpose of clarifying expert testimony. Finally, the court could not conclude that the brief exchange between the juror and the expert witness tainted the impartiality of the jury, particularly in view of the fact that the demonstration model in question was sent back to the jury and was equally available to all jurors during their deliberations. Schaffner v. Chi. & N.W. Transp. Co., 161 Ill. App. 3d 742, 761-62 (1st Dist. 1987).

Computer Generated Animations

• Computer generated graphics are used the same way as other demonstrative evidence, such as diagrams and models. To lay the proper foundation, a qualified witness must testify that he is familiar with the scene or object, that the graphic fairly and accurately represents the scene or object, and that the graphic helps the witness explain his testimony to the jury.

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• In Spyrka v. County of Cook, the court overturned the trial court's decision to

allow plaintiff's expert to use a video animation that helped him explain his testimony. Plaintiff's expert testified that the video animation would help him explain to the jury what a DVT is, what a pulmonary embolism is and how tPA and Heparin prevent death. The trial court instructed the jury that the video animation was a demonstrative aid and not evidence. Using the video animation, the expert testified that defendant doctor had deviated from the standard of care. On cross-examination, the expert testified that he had nothing to do with the creation of the video animation and admitted that he did not know whether any physician helped create the video animation. The expert further testified that the animation "generically" supported his opinions, but he was not saying that the video represented what actually happened to the plaintiff, because he could not say what actually happened to her. Spyrka v. County of Cook, 366 Ill. App. 3d 156, 162 (1st Dist. 2006).

In concluding that a new trial was warranted the Spyrka court relied on the fact that the video animation was not timely disclosed, nor was it a general demonstrative aid. Moreover, the court determined the animation would tend to precondition the minds of the jurors to accept the plaintiffs’ theory and ignored evidence contrary to that theory. In addition the animation presented as fact at least one aspect for which plaintiffs had identified no support in the record. Furthermore, the expert could not state that the animation was an accurate portrayal of what it purported to show. The court concluded that the decision to admit the video animation was not only arbitrary, but also legally incorrect and ordered a new trial. Spyrka v. County of Cook, 366 Ill. App. 3d 156, 169 (1st Dist. 2006)

Seat Belt Evidence

• In Clarkson v. Wright, the Illinois Supreme Court held that evidence of the failure to use seat belts, particularly in the absence of any statutory requirements, should be inadmissible. This is now known as the seat-belt gag rule. Shortly thereafter the General Assembly enacted Illinois' mandatory seat-belt use law. Subsection(c) provided: "Failure to wear a seat safety belt in violation of this Section shall not be considered evidence of negligence, shall not limit the liability of an insurer, and shall not diminish any recovery for damages arising out of the ownership, maintenance, or operation of a motor vehicle." 625 Ill. Comp. Stat. 5/12-603.1. Thus, the statutory version of the seat-belt gag rule was born.

• Although no Illinois appellate court has reviewed the seat-belt gag rule in the

context of a crashworthiness case, the seventh circuit has. In 1994, in DePaepe v. General Motors Corp., the court rejected the plaintiff's argument that the seat-belt gag rule precluded the defendant from introducing evidence about the seat-belt restraint system to demonstrate the overall reasonableness of the vehicle's design. The court reasoned that a plaintiff who brings a crashworthiness action against a manufacturer alleges that the design of the

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vehicle is unreasonably dangerous, and reason dictates that the defendant should be able to defend the reasonableness of the design by presenting evidence of the vehicle's crash-related safety features, including the seat-belt restraint system. DePaepe v. General Motors Corp., 33 F.3d 737 (7th Cir. 1994).

• Given that belt use is now legally mandatory, the reasoning of Clarkson can

and should be questioned. Expert Testimony in Medical Malpractice Regarding Personal Practice

• In Mazzone, the court excluded expert testimony on what the expert would have done in the same situation as irrelevant to the standard of care. In reaching its decision, the court restated the general principle that to prevail on a claim of medical malpractice, a plaintiff must establish (1) the standard of care by which the defendant's conduct is to be measured, (2) that the defendant deviated from this standard of care, and (3) that the defendant's conduct caused injury to the plaintiff. (Walski v. Tiesenga, 72 Ill. 2d 249 (1978)) Based on this principle, the court concluded that on the issue of whether the defendant deviated from the standard of care, an expert's statements as to what he would have done are not relevant because differences in opinion are consistent with conformity to the applicable standard. Mazzone v. Holmes, 197 Ill. App. 3d 886, 898-99 (Ill. App. Ct. 1990).

• In Gallina v. Watson, however, the court held that there were exceptions to

Mazzone, in which testimony as to personal practice was admissible. Specifically, such testimony may be relevant and admissible when it affects the persuasive value of the expert's opinion. Even though such testimony might not prove that the standard of care was breached, it would be relevant to the credibility and persuasive value of the expert's opinion on whether defendant's actions were within the standard of care. The Gallina court did agree that a plaintiff could not establish a prima facie case of medical negligence based solely on the testimony of another physician that he or she would have done things differently, but the court concluded that there were situations when such testimony was relevant. Gallina v. Watson, 354 Ill. App. 3d 515, 521 (Ill. App. Ct. 2004).

• In Schmitz v. Binette, 368 Ill. App. 3d 447 (1st Dist. 2006), the court held that

a medical expert's personal practices may well be relevant to that expert's credibility, particularly when those practices do not entirely conform to the expert's opinion as to the standard of care. The court reversed and remanded the trial court's decision to exclude questioning on cross-examination of the defendant's expert regarding his personal practice. The defense expert testified that the defendant physician complied with the standard of care. At his deposition he had also testified that his personal practice was to perform the exact tests that plaintiff alleged should have been performed in this case. The court found evidence of his personal practice relevant but adhered to the general rule that an expert's personal practice could not be used to establish a

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prima facie case in a medical negligence action. Schmitz v. Binette, 368 Ill. App. 3d 447 (1st Dist. 2006).

• Neither party may introduce evidence of physician personal practice for the

substantive purpose of establishing the standard of care or defendants' compliance with it. In Bergman v. Kelsey, 375 Ill. App. 3d 612 (1st Dist. 2007), defendants argued that they should have been allowed to use evidence of personal practice to establish the standard of care because similar evidence was permitted for impeachment purposes. The court followed the supreme court precedent in Walski and found no error in excluding evidence as to the personal practices used by physicians at certain hospitals. Bergman v. Kelsey, 375 Ill. App. 3d 612 (1st Dist. 2007).

Custom and Practice or Habit

• Illinois’s new Rule of Evidence 406 reflects verbatim Federal Rule of Evidence 406. Prior to Illinois’ promulgation of the Rules of Evidence, Illinois courts adopted Federal Rule of Evidence 406 regarding the admission of evidence of habit or routine practice. Hajian v. Holy Family Hosp., 273 Ill. App. 3d 932, 942 (1st Dist. 1995). Evidence of routine practice or custom may be established by opinion testimony of a person with personal knowledge, or by the introduction of specific instances of conduct sufficient in number to support a finding of routine or common practice. While there are no cases that directly address the issue of supplementing partial recollection testimony with evidence of custom or routine practice, some cases suggest that it is permissible. See, e.g., Hajian, 273 Ill. App. 3d at 934-35, 942 (holding that the admission of nurse’s testimony that habit was to respond to patient and family requests for attention was proper to rebut the inference that the nurse may have dismissed the possibility of plaintiff experiencing a serious medical problem, per the “plea” of a family member).

• In Wingo v. Rockford Memorial Hosp., 292 Ill. App. 3d 896 (2d Dist. 1997),

testimony by an expert witness and defendant physician regarding physician's state of mind with respect to telephone conversation between physician and nurse, the substance of which physician could not specifically recall, was admissible in medical malpractice action as routine practice and custom testimony to demonstrate probable action in conformity therewith.

Telephone Conversations

• Communications by telephone do not authenticate themselves. A mere assertion by the speaker as to his identity, being hearsay, cannot be taken as a sufficient showing of his identity. Testimony that the witness was familiar with and recognized the speaker's voice is obviously sufficient, § 901.6 supra. Bell v. McDonald, 308 Ill. 329 (1923). The familiarity maybe acquired prior to the conversation, Bell v. McDonald, id., or afterward, People v. Nichols, 378 Ill. 487 (1942); People v. Abrego, 142 Ill. App. 3d 973 (1986). Authenticating evidence may also be circumstantial, such as contents of the statement or the

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reply technique. People v. Poe, 121 Ill. App. 3d 457 (1984) (citing Handbook). See § 901.5 supra. See also People v. Nichols supra, subsequent statement indicating knowledge of contents of calls.

• Furthermore, under Illinois Rule of Evidence 901(b)(6) a telephone

conversation may be authenticated by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (1) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (2) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone. See also Accord Tomaszewski v. Godbole, 174 Ill. App. 3d 629 (1988)(testimony of defendant doctor regarding what he learned about plaintiff patient from his telephone conversation with unidentified person at clinic was competent and did not constitute hearsay).

Affidavits in Support of Motions for Summary Judgment

• "Affidavits in support of and in opposition to a motion for summary judgment shall be made on the personal knowledge of the affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn, or certified copies of all papers upon which the affiant relies; shall not consist of conclusions but of facts admissible in evidence; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto." 145 Ill. 2d R. 191(a). Even though an expert may give opinion testimony at trial without disclosing the facts underlying that opinion, in an affidavit used to oppose a summary judgment motion, those facts must be laid out pursuant to Supreme Court Rule 191. Northrop v. Lopatka, 242 Ill. App. 3d 1, 8 (4th Dist. 1993). The Northrop court held that the affidavit did not comply with Rule 191 since it was conclusory and did not include the facts upon which the opinions were based. Northrop, 242 Ill. App. 3d at 8.

• Rule 191(b) provides the procedure when material facts necessary for an

affidavit are not obtainable by affidavit because the affiant is unavailable by reason of hostility or otherwise. Specifically, Rule 191(b) states:

If the affidavit of either party contains a statement that any of the material facts which ought to appear in the affidavit are known only to persons whose affidavits affiant is unable to procure by reason of hostility or otherwise, naming the persons and showing why their affidavits cannot be procured and what affiant believes they would testify to if sworn, with his reasons for his belief, the court may make any order that may be just, either granting or refusing the motion, or granting a continuance to permit affidavits to be obtained, or for submitting interrogatories to or taking the depositions of any of the persons so named, or for producing papers or documents in the possession of those persons or furnishing sworn copies thereof. The

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interrogatories and sworn answers thereto, depositions so taken, and sworn copies of papers and documents so furnished, shall be considered with the affidavits in passing upon the motion. 145 Ill. 2d R. 191(1).

Requests to Admit

• Requests to admit are part of the discovery process, and under Rule 216, must be answered within 28 days. However, courts have discretion under Rule 183 to allow a late response for "good cause." In Bright v. Dicke, the Illinois Supreme Court held that the mere absence of inconvenience or prejudice to the opposing party is not sufficient to establish good cause under Rule 183. Rather, a determination of good cause is based upon the facts of each case and is within the discretion of the trial court. The burden of establishing good cause is on the party requesting the additional time. Bright v. Dicke, 166 Ill. 2d 204, 209-10 (1995).

• In Vision Point of Sale, Inc. v. Haas, the Illinois Supreme Court held that in

determining whether good cause exists to support an extension of time to comply, the court cannot take into consideration facts and circumstances that go beyond the reason of noncompliance. Noting that the appellate court had melded the narrow Bright holding with a second inflexible standard that "mistake, inadvertence, or attorney neglect" can never be the sole basis for establishing good cause, the Court clarified its holding in Bright and overruled a line of appellate cases in which it was misapplied. See, e.g. Hammond v. SBC Comminications, Inc. 365 Ill. App. 3d 879 (1st Dist. 2006); Robbins v. Allstate Insurance Co., 362 Ill. App. 3d 540 (2d Dist. 2005); Larson v. O'Donnell, 361 Ill. App. 3d 388 (1st Dist. 2005). The Court also held that Rule 216 requires the party to whom the requests to admit are directed to serve the requesting party either a sworn statement denying the requests, or written objections that need not be sworn. This, in effect, overruled Moy, et al., v. Ng et al., 341 Ill. App. 3d 984 (1st Dist. 2003). Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334, 348, 352, 355 (2007).

• In Troyan v. Reyes, mentioned supra, the court held that requests to admit are

proper if they relate to statements or opinions of fact, or the application of law to fact. Accordingly, the amount of medical expenses a plaintiff incurred, the necessity and reasonableness of medical services, and the fair reasonable cost of medical services rendered are all proper subjects for requests to admit. Troyan v. Reyes, 367 Ill. App. 3d 729 (3d Dist. 2006).

• In Magee v. Walbro, the court held that if facts have been admitted pursuant

to a Rule 216 request, and the requesting party presents evidence at trial to prove those same facts, the admissions are waived and the requesting party must rely on the strength of the evidence at trial. Magee v. Walbro, 171 Ill. App. 3d 774 (1st Dist. 1988).

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Other Occurrence Evidence

• Evidence of other occurrences to establish the existence of a particular danger or hazard is only admissible if the plaintiff first establishes that the other occurrences involved substantially similar circumstances. For example, in a products liability case the plaintiff must establish, at a minimum, that the other occurrences involve the same product and product design, the same alleged negligent design, and the same alleged use and cause of injury. Bachman v. General Motors Corp., 332 Ill. App. 3d 760, 786-87 (4th Dist. 2002) (witnesses' similar-occurrence testimony regarding events following premature deployment of air bags in cars was inadmissible in action by driver of same type of car against car's manufacturer and others for injuries suffered in accident allegedly caused by premature deployment of air bag; driver claimed air bag hit her face, knocked her out, and caused her to lose control of car, no witnesses testified that air bag knocked them out, some witnesses did not testify that deployment caused them to lose control of cars, and others testified that deployment did not cause them to lose control of cars); Bass v. Cincinnati, Inc., 180 Ill. App. 3d 1076 (1st Dist. 1989); see also McKenzie v. S.K. Hand Tool Corp., 272 Ill. App. 3d 1 (5th Dist. 1995); Gowler v. Ferrell-Ross, 206 Ill. App. 3d 194 (1st Dist. 1990).

• Other occurrence evidence can also be used to show the defendant's notice of

the generally hazardous nature of the product or accident site. However, the law is unclear on whether the substantially similar requirement is relaxed when the other occurrence evidence is used for this sole purpose. In Nevious v. Bauer, the Third District held that when evidence is being offered just to show the defendant's notice, the plaintiff does not have to establish a foundation showing the similarity between other occurrences and the present occurrence. Evidence of even dissimilar other occurrences is relevant to the defendant's knowledge. Nevious v. Bauer, 281 Ill. App. 3d 911, 917 (3rd Dist. 1996).

However, in Ballweg v. Springfield, the Illinois Supreme Court held that when evidence is introduced to show notice to the defendant, the other occurrences must be clearly demonstrated to be substantially similar to the present occurrence. Ballweg v. Springfield, 114 Ill. 2d 107, 114 (Ill. 1986). The First District also stated in Cleveringa v. J.J. Case Co. that the proponents of evidence of other occurrences must meet the substantial similarity test even when the purpose of the evidence is to prove notice to the defendant. Cleveringa v. J.J. Case Co., 230 Ill. App. 3d 831 (1st Dist. 1992).

In Loitz v. Remington Arms Co., the Illinois Supreme Court identified three factors in determining whether substantially similar other occurrence evidence is sufficient to put the defendant on notice and justify punitive damages: (1) the ratio of prior substantially similar occurrences to the total number of products sold and the number of products in use; (2) the ratio of substantially similar occurrences to the frequency of the product's use; and (3) the particular product's inherent dangers. Loitz v. Remington Arms Co., 138 Ill. 2d 404

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(1990).

• A proper foundation must be built for each piece of other occurrence evidence, or it will be inadmissible hearsay that cannot be used for any purpose that assumes the truth of the matter asserted. However, since other occurrence evidence rarely has any relevance or probative value to other issues unless its truth is actually assumed, it is difficult to admit other occurrence evidence at all. See Waechter v. Carson Pirie Scott & Co., 170 Ill. App. 3d 370 (2d Dist. 1988).

• Other occurrence evidence is possibly irrelevant in design defect products

liability cases under the risk-utility analysis. In Calles v. Scripto-Tokai Corp., the Illinois Supreme Court created a list of factors in a risk-utility analysis. While the Court cautioned that its list was non-exhaustive, other occurrence evidence did not make the list of 11 factors. Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247 (2007).

Evidence of Intoxication/Drug Use

• Illinois courts have consistently held that evidence of alcohol consumption, though probative, is so prejudicial that it should be excluded absent a showing of intoxication resulting in impairment of physical or mental capabilities. Bodkin v. 5401 S.P., Inc., 329 Ill.App.3d 620, 633 (1st Dist. 2002); Bielaga v. Mozdzeniak, 328 Ill.App.3d 291, 296 (1st Dist. 2002); Wagner v. Zboncak, 111 Ill.App.3d 268, 270 (2nd Dist. 1982); Kitten v. Stodden, 76 Ill.App.2d 177, 180-82 (5th Dist. 1966).

• In Wagner, the defendant was not found liable for plaintiff's injuries that

resulted from an automobile accident. Before trial, the court granted plaintiffs motion in limine, which prohibited the defendant from introducing evidence of plaintiff’s alcohol consumption prior to the accident. However, at trial, the defendant testified that the accident "smelled like a brewery" and that the occupants of plaintiff’s car had attempted to conceal beer bottles in an adjacent lot. Plaintiff moved for a mistrial, which was denied.

On appeal, the court held that plaintiff was denied a fair trial because, although defendant's testimony was only a reference to plaintiffs alcohol consumption, the court found that the jury could have been influenced by that testimony, particularly since it occurred during the examination of the first witness, when the jury was highly attentive. The court further found that defendant's testimony violated the motion in limine and plaintiff was unable to rebut the allegation without himself violating the order. Wagner, 111 Ill.App.3d at 270.

• The court in Marshall v. Osborn, 213 Ill.App.3d 134, 141 (1991) held that

expert testimony and evidence from blood alcohol tests are admissible to establish intoxication. The court emphasized the relevance of such evidence in a negligence case. "Evidence of a plaintiffs intoxication is relevant to the extent that it affects the care that he takes for his own safety and is therefore

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admissible as a circumstance to be weighed by the trier of fact in its determination of the issue of due care." Id. at 140.

In Marshall, the plaintiff’s decedent was killed when he was struck by the defendant's car. Evidence at trial showed that the decedent was struck while walking on an unlighted highway with a posted speed of 55 miles per hour on a dark and foggy night. It was further established that the decedent's blood alcohol level would have had a profound effect on his perception, judgment, and physical abilities. Therefore, the court found that the trial court did not err in admitting evidence of the decedent's intoxication.

• In products liability cases, however, courts generally find it necessary to

exclude evidence of intoxication or drug use, as it may unduly influence or confuse a jury. In Carillo v. Ford Motor Company, 325 Ill.App.3d 955, 968 (2001), a driver sued a manufacturer for injuries she received when her seat collapsed during a rear-end collision. The appellate court upheld the trial court's ruling to exclude evidence of the other driver's drug impairment. Although the drug screen on the driver came back positive for cocaine and PCP, the court found that this evidence had no relevance to the only question at issue, which was whether the Ford Explorer seat was unreasonably dangerous.

• In the criminal context, the State can use circumstantial evidence of

intoxication to prove a defendant guilty of DUI. People v. Diaz, 377 Ill.App.3d 339, 345 (1st Dist. 2007). Further, the State need not present chemical evidence of intoxication in the form of a Breathalyzer or blood test to obtain a conviction; rather, the credible testimony of the arresting officer may be sufficient to prove the offense. People v. Janik, 127 I11.2d 390, 402 (1989).

In People v. Hood, a defendant was convicted of reckless homicide. On appeal, the defendant argued that, absent any evidence of intoxication or other evidence of recklessness, his conviction could not stand. However, IL Supreme Court found sufficient evidence to uphold the conviction. The Court pointed out that, although defendant claimed he only had 2 1/2 beers, the jury was free to disregard defendant's testimony as not credible, in light of the other evidence of intoxication. Other evidence included a physician's testimony regarding defendant's blood-alcohol level, as well as two officers' testimony that they had smelled alcohol on defendant's breath, that his eyes were glassy and bloodshot, his speech was slurred, and his walk was unsteady. "Where there is conflicting evidence of intoxication, it is the jury's function to determine the credibility of witnesses and the weight accorded their testimony." People v. Hood, 213 Ill.2d 244, 263-64, 821 N.E.2d 258 (2004) (citing People v. Smith, 149 I11.2d at 566, 174 111.Dec. 804, 599 N.E.2d 888).

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Internet Evidence

• Internet evidence generally refers to three types of evidence: data posted on a website by the site’s owner, data posted on a website by others with the owner’s consent (i.e. chat room and Twitter posts), and data posted on a website by others without the owner’s consent (i.e. hacking).

• Admissibility as Non-Hearsay - Illinois Rule of Evidence 801(d) provides that

prior consistent statements in rebuttal to a charge against the declaration of recent fabrication or improper influence or motive, and admissions of a party opponent, are considered “non-hearsay.” While Illinois courts have yet to interpret the new Illinois rule, the federal courts’ interpretation of FRE 801(d) provides guidance on the admissibility of internet evidence.

Courts have held that statements made by an opposing party on its website are admissible pursuant to FRE 801(d)(2). Telewizja Polska USA, Inc. v. Echostar Satellite Corp., No. 02 C 3293, 2004 WL 2367740, at *7 (N.D. Ill. Oct. 15, 2004). However, statements made on a website by a third party are inadmissible unless it can be shown that the statement was authorized by or adopted by the opposing party. U.S v. Jackson, 208 F.3d 633, 637-38 (7th Cir. 2000).

• Authentication of Internet Evidence – Illinois Rule of Evidence 901(a), which

copies verbatim FRE 901(a), provides that “the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Ill. R. Evid. 901(a) (2011).

According to the federal courts, this is a highly relaxed standard. In U.S. v. Simpson, the Tenth Circuit held that a criminal defendant’s chat room printout was properly authenticated and admissible where the criminal defendant’s screen identity of “Stavron” yielded his name and address. U.S. v. Simpson, 152 F.3d 1241, 1250 (10th Cir. 1998). The Seventh Circuit cited Sampson in dicta in a case holding that the District court’s admission of a chat in a criminal case where the defendant was convicted of multiple sexual exploitation and pornography offenses was not an abuse of discretion or prejudicial. U.S. v. Burt, 495 F.3d 733, 738 (7th Cir. 2007).

• Admission by Judicial Notice – Illinois Rule of Evidence 201 also copies verbatim FRE 201, providing that judicial notice may be taken of facts that are not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources which cannot reasonably be questioned. Ill. R. Evid. 201 (2011).

Illinois courts have ruled that information from mainstream Internet sites such as MapQuest and Google Maps is reliable enough to support a request for

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judicial notice. People v. Stiff, 391 Ill. App. 3d 494, 503-04 (5th Dist. 2009); Hoskin v. Union Pacific R.R. Co., 365 Ill. App. 3d 1021, 1023-25 (5th Dist. 2006).

• Self-Authenticating Evidence – Illinois Rule of Evidence 902(5), taken verbatim from FRE 902(5), provides that official publications in the form of “books, pamphlets, or other publications purporting to be issued by public authority,” are self-authenticating. A recent case out of the Southern District of Ohio has found that FTC press releases printed off the Federal Trade Commission’s webpage and attached to the defendant’s motion for summary judgment were self-authenticating official publications under FRE 902(5) and did not require an affidavit to authenticate. Sannes v. Jeff Wyler Chevrolet, Inc., No. C-1-97-930, 1999 U.S. Dist. LEXIS 21748, at *10 n.3. However, some forms of Internet evidence cannot be authenticated without a certification from the website’s Webmaster. This is governed by Illinois Rule of Evidence 902(11), which is substantively the same as FRE 902(11). Illinois Rule 902(11) permits an original or duplicate record of regularly conducted activity to be admitted if accompanied by written certification of the custodian (in this case, the site Webmaster) that: (1) the record was made at or close to the time of occurrence of the matters set forth by, or from information conveyed by, a person with knowledge of those matters; (2) was kept in the course of regularly conducted activity; and (3) was made by that regularly conducted activity as a regular practice. Ill. R. Evid. 902(11) (2011). It is no longer necessary to get business records testimony of such a person under Rule 902(11), rather, it can be done by affidavit or deposition. Bellas, George S. and Patrick Andes, “Internet Evidence: How to Authenticate Evidence From the Internet Under the New Illinois Rules of Evidence,” BENCH & BAR, May 2011, at 6.

• Proof of Authenticity – To authenticate internet evidence posted by a website’s owner, a witness must testify as to (1) what was on the website, (2) the exhibit fairly and accurately reflects what was on the website, and (3) the exhibit is fairly attributed to the website’s owner. Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.Supp.2d 1146, 1155 (C.D. Cal. 2002). Testimony must set forth that the witness typed in the URL, logged on, received what was on the website, and printed out or otherwise captured it in an exhibit, which fairly and accurately reflects what the witness saw. Id.

Internet Archives – a common problem occurs when a particular website has replaced the web page that is the subject of the litigation, often months or years before the lawsuit is brought. The obsolete pages can still be authenticated and admitted into evidence, but a certification from the website’s archive administrator or employee pursuant to 902(11) is required to get it in. Bellas, George S. and Patrick Andes, “Internet Evidence: How to Authenticate Evidence From the Internet Under the New Illinois Rules of Evidence,” BENCH & BAR, May 2011, at 6.

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The New Illinois Rules of Evidence - - Foundation Highlights

IRE 201 - Judicial Notice - Of any fact general known, not subject to reasonable dispute, or capable of accurate and ready determination.

IRE 406 - Permitting use of habit testimony.

IRE 803(6) and (7) - Permitting use of business records as a hearsay exception to prove an occurrence or a non-occurrence.

IRE 902(11) - Business records can be certified by the affidavit of a custodian,

and thus be self-authenticating - no need for custodial witness. IRE 902 - Public documents under seal, certified copies of public records, official

publications, and newspapers and periodicals are all self-authenticating. IRE 803(4) - Statements made for the purposes of obtaining medical diagnosis or

treatment are a hearsay exception. IRE 803(8) - Public records, except for police reports, are a hearsay exception. IRE 702 - Experts - Frye "general acceptance" test. IRE 703 - Data relied upon by experts need not be admissible provided it is

reasonably reliable. IRE 803(17) - Market reports and commercial publications are a hearsay

exception. IRE 803(24) - A receipt or paid bill is admissible as prima facie evidence of

reasonableness. IRE 1006 - Summaries of voluminous photos, writings, or data are admissible.

Notable Absences

IRE 803(18) - The court reserved a rule on medical treatises. IRE 407 - The court reserved a rule on subsequent remedial measures.

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TRIAL OBJECTIONS AND EFFECTIVELY RESPONDING TO OBJECTIONS

EVIDENCE & OBJECTIONS: LAYING THE FOUNDATIONS FOR INTRODUCING AND

REBUTTING EVIDENCE

THE CHICAGO BAR ASSOICATION October 16, 2013

John L. Nisivaco BOUDREAU & NISIVACO, LLC. 120 N. LaSalle Street

Suite 2850 Chicago, Illinois 60602

Tel: 312-263-0300 Email: [email protected]

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Objections in a trial context can and should be studied to

develop a methodology that, when joined with some actual

experience, will result in ultimate mastery of this essential

trial skill. These materials will discuss the types of

evidentiary objections commonly encountered at trial, when to make

objections, how to make them, how to make offers of proof and how

to respond to objections.

I. Standard Objections Frequently Raised At Trial

Objections to questions

a. calls for irrelevant answer b. calls for immaterial answer c. witness is incompetent d. violates the best evidence rule e. calls for a privileged communication f. calls for a conclusion g. calls for an opinion (by an incompetent witness) h. calls for a narrative answer i. calls for a hearsay answer j. leading k. repetitive (asked and answered) l. beyond the scope (of the direct, cross, or redirect) m. assumes facts not in evidence n. confusing/misleading/ambiguous/vague/unintelligible o. speculative p. compound question q. argumentative r. improper characterization s. mistakes evidence/misquotes the witness t. cumulative u. improper impeachment

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Objections to answers a. irrelevant b. immaterial c. privileged d. conclusion e. opinion f. hearsay g. narrative h. improper characterization i. violates parole evidence rule j. unresponsive/volunteered Objections to exhibits a. irrelevant b. immaterial c. no foundation d. no authentication e. contains hearsay f. prejudice outweighs its probative value g. contains inadmissible matter (mentions insurance, prior

convictions, etc.)

Objections during jury selection

a. Mentioning insurance

It is improper to mention to the jury that any person

involved in the case was or was not covered by liability

insurance.1 This necessarily follows since the existence of

insurance is irrelevant to the issue of negligence and its

disclosure is inevitably prejudicial.

However, lawyers conducting the voir dire examination of the

jurors in personal injury and other tort cases, particularly

plaintiff's attorneys, are vitally interested in knowing whether

any of the prospective jurors have worked for insurance companies

or related businesses.2

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b. Arguing Law

Advising the jury of the applicable law is a judicial

function. The only appropriate consideration during voir dire is

whether the juror will commit himself or herself to follow the law

as the judge gives it.

Objections during opening statements

a. Argumentative

The opening statements should be a summary of the anticipated

facts that will be presented during the trial.3 Accordingly, it

is improper to make the opening statement argumentative, such as

arguing the credibility of witnesses and other evidence the jury

will hear, or arguing inferences and deductions from that

evidence. These comments are more appropriately stated during

closing arguments.

b. Mentioning inadmissible evidence

It is improper to bring before the jury, evidence that has

been suppressed by pretrial motions; privileged matters, such as

attorney-client communications; or evidence of settlement

negotiations.

c. Mentioning unprovable evidence

A lawyer can include in his opening statements only evidence

that he in good faith believes is both available and admissible at

trial.4

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Objections during closing arguments

a. Misstating evidence

It is improper to misstate evidence or misquote testimony

admitted during the trial. However, it is proper to argue any

reasonable inferences and deductions from such evidence.

b. Giving personal opinions

It is improper for counsel to inject his personal opinions,

beliefs, and attitudes into the case at any time. Therefore,

comments such as "I think" and "I believe", unless clearly and

directly linked to the evidence, are improper.

c. Prejudicial arguments

A large number of arguments are improper because they are

prejudicial and have little or nothing to do with the evidence.

For example, it is improper to ask the jury to put itself in the

shoes of any of the parties, since this is really a direct appeal

to the juror's emotions.

II. Effective Presentation of Objections

* Know the law. Their are two general categories of

objections; objections to the substance of the evidence offered

and objections to the form of the question. Substantive

objections involve the entire law of evidence and, if sustained,

will result in the exclusion of evidence. On the other hand,

objections to form can usually be cured by rephrasing the question

or answer. I encourage you to read the rules and the

corresponding case law, not for the sake of memorization, but from

the perspective of stating an objection.

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* Be aware of the jury. In a jury case the judge remains the

key to whether you win or lose any single objection but your

overriding objective is to persuade the jury. Objection

strategies and techniques are an important part of the impression

that you make on the jury concerning the credibility of your case.

The jury's reaction to your objection must be weighed and

considered as part of the tactical decision to object.

If you do object, you want to minimize any adverse effect it

may have on the jury. The jurors' natural reaction is annoyance

because the objection seems to indicate that you are trying to

hide evidence from them. A seasoned trial lawyer makes his or her

objection so that it educates the jury as to the reasonableness of

excluding the other side's evidence. This should be done

succinctly, without excessive argument. However, even succinct

legal grounds are rarely understood by the jury. The judge, who

understandably wants to move the case along, will not permit

extensive explanation in front of the jury. The trick is to

briefly explain your objection so that the jury will believe that

your opponent is acting unfairly, without irritating the judge.

For example, "Objection-leading," becomes, "Objection. Your

Honor, he is putting words in the witness's mouth." Instead of

"Objection-compound." you might try, "Your Honor, he is asking

more than one question."

If an objection is likely to result in only temporary delay

of the evidence or if a witness is doing well under cross-

examination and the jury seems impressed, don't object. You

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certainly do not want to object for objection's sake or because

you do not like the evidence. If you are unsure whether your

objection will be sustained, carefully consider the effect on your

credibility of a series of unsuccessful objections. The basic

rule to remember is that objecting is an art, not a science.

* Know your opponent. Consider the resourcefulness of the

opposing lawyer. Can he frame a proper question if pressed? A

frequent objection based on form is that the question is

ambiguous. However, even if this objection is sustained, consider

that a rephrased question following an objection draws the jury's

attention to the question and frequently results in more

persuasive testimony than if no objection was made at all.

On the other hand, if your opponent is easily rattled, you

may choose to make more objections as to form in the hopes of

permanently excluding the evidence. Even if your opponent is

resourceful, you may wish to make a valid objection to slow his

momentum on direct. Considerations such as these may bear on

whether it is tactically wise to make an otherwise valid

objection.

* Know your Witness. How does the witness handle himself?

Does he need the assistance of every valid objection that you

could make? For example, if your expert can turn the tables on a

lawyer who is putting words into his mouth, his impact on the jury

will be increased if he can fend for himself.

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You may know some areas to be more dangerous than others

because of your preparation. An otherwise valid objection may

serve to warn the witness of danger and keep him from becoming

confused. The more you know about the witness, the better you can

judge whether or not to object.

* Know your case. You must object for the right reason.

There should be a strategic and a tactical advantage which is

consistent with your overall theory of the case. Will admission

of the evidence open up other unfavorable evidence from this or

other witnesses? Could the judge's ruling sustaining your

objection be used against you by your adversary when you seek to

introduce testimony?

Be consistent in your objections throughout the case. Know

what is important. Some lawyers object to a question because they

believe the answer will hurt their case, even if only a little.

Do not compound a little damage by an objection that emphasizes

evidence that will probably be admitted. Sometimes silence is a

better weapon.

III. How to be Forceful Without Irritating the Judge and Jury

* Know your judge. While preserving your record for the

appellate court is important, you should concentrate in the short

run on the trial judge, not the appeals court.

Knowing the judge involves knowing his attitude toward

procedure and substance. The judge has such broad discretion that

you may encounter directly contrary rulings from different judges

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on many objections, particularly those as to form. This should

not be unexpected. You only ask that each judge be consistent.

This key is to find out what the judge in your case usually

does. Ask the clerk. Ask other lawyers. Sit in the back of the

judge's courtroom during another case.

Regardless of your knowledge of the judge, politeness is

always a good staring point. Always allow the question to be

completed before objecting, unless completing the question will

itself be prejudicial. You should direct your objections to the

judge, not opposing counsel. If the judge is irritated by

argument, limit your objections to a succinct statement of your

ground in understandable language.

The safest procedure is to make the objection, then hesitate

a moment before stating a legal basis for the objection. If the

basis for the objection is obvious, the court may sustain the

objection without requiring you to state the legal basis.5 This

is the best of all possible worlds, because the court's ruling is

proper if there is any proper basis for the ruling. By

momentarily hesitating, you give the court a chance to sustain

your objection without having to state a basis for it. Always be

prepared, of course, to state the legal basis for any objection

you make in case the judge requests a basis.

A specific objection is a waiver of all grounds not

specified; in other words, one ground cannot be urged at trial and

another on appeal.6

IV. When to Object

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Every trial involves numerous situations in which objections

can properly be made. When to make objections, however, involves

more than simply having proper situations in which to make them.

It also involves almost instantaneous decisions on whether to make

the objections at all.

If you do make an objection, be reasonably sure you will be

sustained. Have authority ready to support the major objections

you anticipate making during the trial. Making an objection and

having it overruled is often worse than not making it at all,

since the objection merely draws the jurors' attention to the

question and eventual answer.

Objections to evidence should be made as soon as the ground

for the objection becomes apparent. If an answer is improper, an

objection must be made as soon as that fact become apparent.7

Although it is entirely proper (and necessary in order to protect

the record) to object to a completed answer and, if sustained, ask

that the answer be struck and the jury instructed to disregard it,

this is obviously an unsatisfactory solution.8 Everyone is

familiar with the old cliche', you can't "unring a bell". Nor

will the jury be able to, although the instruction to disregard

alerts jurors to the improper evidence so that they will not be

likely to discuss it during deliberations.

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V. When NOT to Object

Experienced trial lawyers, particularly those who have been

stung due to trial error, often warn young lawyers to be careful

of objections. Their reason is that lawyers who seem to be hiding

something cause jurors to lose confidence in them and their case.

The old battle-scared trial lawyers specifically warn novices

that objections frequently fail and that the impact of damaging

evidence is heightened by an objection that focuses attention on

that very evidence.

Think of yourself as a baseball player. When a question is

asked in a courtroom, think of it as a pitch. You may not want to

swing even though it's a strike, the same way that a batter need

not swing at every pitch.

VI. Effectively Responding to Objections

Inexperienced lawyers are usually intimidated by objections,

and frequently abandon an important point or line of questioning

when an objection is sustained. As the direct examiner, you

should always ask: If the point is important, how can I overcome

the objection and get the evidence properly admitted? Was the

objection based on a significant rule of evidence, such as hearsay

or privilege, or was it based on an improper form of questioning?

If the former, you should always see if you can get the same, or

nearly the same, evidence properly admitted. If the latter,

simply rephrasing the question will usually get around the

objection.

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VII. Offers of Proof If your opponent’s objection has successfully excluded

important evidence, you must make an offer of proof. The offer is

necessary for two reasons. First, it may convince the trial judge

to reverse his ruling. Second, the offer will create a record so

that the reviewing court will know what the excluded evidence was

and be able to determine if the exclusion was improper, and, if

so, whether the improper exclusion constituted reversible error.

An offer of proof is required whenever it is not apparent from the

context what the excluded evidence is.9

There are two principal ways to make an offer of proof.

Under the first method the lawyer simply tells the court what the

proposed testimony would be, either in a narrative or question-

and-answer format. This should be done outside of the jury's

presence. Tell the court you would like to make an offer of proof

and ask for a side-bar conference, or, if your offer of proof will

be lengthy, ask that the jury be excused for a few minutes.

The second method involves using the witness himself. Again

out of the jury's presence, continue the examination of the

witness, using the same questions to which objections had been

sustained. In this way, the reviewing court will have a verbatim

transcript of the testimony the trial court excluded.

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VIII. Conclusion

The objection is an important tool. Don't abandon it.

However, you must think before you object, and object when

appropriate. An objection in proper form and for a good reason

can provide important tactical and strategic benefits and greatly

improve your effectiveness as an advocate.

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Endnotes

1. Smithers v. Henriquez, 368 Ill. 588 (1938); Imparato v. Rooney, 95 Ill. App. 3d 11 (1981).

2. Haymes v. Catholic Bishop of Chicago, 41 Ill.2d 336 (1968). 3. People v. Hampton, 78 Ill. App. 3d 238 (1979). 4. People v. Weinger, 101 Ill. App. 3d 857 (1981). 5. Massey v. Farmer’s Nat'l Bank, 104 Ill. 327 (1982). 6. Forest Preserve Dist. V. Lehmann, 388 Ill. 416 (1945); Diorio

v. City of Chicago, 99 Ill. App. 3d 1047 (1981). 7. People v. Trefonas, 9 Ill.2d 92 (1956). 8. People v. Fritz, 84 Ill. 2d 72 (1981). 9. Miller v. Chicago Transit Auth., 78 Ill. App. 2d 375 (1966);

Wright v. Stokes, 167 Ill. App. 3d 887 (1988). 1. Smithers v. Henriquez, 368 Ill. 588 (1938); Imparato v.

Rooney, 95 Ill. App. 3d 11 (1981).

2. Haymes v. Catholic Bishop of Chicago, 41 Ill.2d 336 (1968).

3. People v. Hampton, 78 Ill. App. 3d 238 (1979).

4. People v. Weinger, 101 Ill. App. 3d 857 (1981).

5. Massey v. Farmer's Natl. Bank, 104 Ill. 327 (1882).

6. Forest Preserve Dist. v. Lehmann, 388 Ill. 416 (1945); Diorio v. City of Chicago, 99 Ill. App. 3d 1047 (1981).

7. People v. Trefonas, 9 Ill.2d 92 (1956).

8. People v. Fritz, 84 Ill.2d 72 (1981).

9. Miller v. Chicago Transit Auth., 78 Ill. App. 2d 375 (1966); Wright v. Stokes, 167 Ill. App. 3d 887 (1988).

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I.

PUT IT ON THE RECORD

PRESERVING THE RECORD FOR APPEAL

David A. Novoselsky

Jonathan P. Novoselsky

NOVOSELSKY LAW OFFICES Chicago, Il1inois

INTRODUCTION

This particular topic, Preserving the Record For Appeal, has been presented for many

years and has always contained a central theme—one which should be easy to follow but

apparently has been honored more in the breach than the practice. That principle of law is,

simply stated, “if it is not on the Record, it did not happen for the purpose of appeal.”

This is not a mere technical issue. It is the purpose of appellate review to do just that—

review what took place at the trial level. Reviewing courts will, with rare exception, not

consider argument on errors that are not properly preserved for appeal. Proper preservation

requires that the specific objections and bases for those objections be contained in the transcripts

and/or written objections and ruling on those objections preserved in the Record on Appeal.

This rule has been stated by me at numerous seminars, appears in practice handbooks and

statements of virtually every appellate practitioner who has lectured or written on the topic, and

should be easy to follow. Nonetheless, numerous decisions of the reviewing courts of Illinois, as

well as virtually every other jurisdiction whether it be State or Federal, are replete with

observations by the reviewing courts that a particular argument cannot be reviewed on appeal

because there is no record before the reviewing court that it was ever raised at the trial level and

therefore considered to be waived.

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This form of waiver is not simply embarrassing, it may be so fundamental that it is a

potential issue for a legal malpractice case brought against you for this failure. Accordingly, if

you come away with nothing else from this seminar or from reading this portion of the written

materials, please remember that it is relatively easy to preserve your Record for appeal and this

should be considered a fundamental message to take away from this seminar and apply in your

practice.

This principle is simple, there are various traps that take place during trial—inadvertent

or otherwise—that may lead you astray. The primary trap is a decision by you to present

arguments and objections “off the record.” Even if you are invited to do so by the trial court or

opposing counsel, a decision to proceed “off the record” means that the argument and objection

did not take place and waiver then becomes either self generated or an error that you acquiesced

to in the trial court proceedings.

There may be a fine line between preserving a record and becoming obnoxious--

something I have often been accused of myself. While I do not mean to suggest that anyone

engage in disruptive or contumacious conduct, it nonetheless is your obligation as an attorney to

adequately preserve the record for appeal. Since arguments and rulings that take place "off the

record" cannot be considered by a reviewing court, it is your obligation to politely request that the

trial court give you the opportunity to "spread of record" your arguments and objections as well

as to ask that the rulings of the trial court be placed on the record if any of these vital matters

take place outside the presence of a court reporter.

The case of Hall v. National Freight, 264 Ill. App. 3d 412 (1st Dist, 1994), appeal

denied, 1 57 Ill. 2d 500 (1994), a decision which is still cited frequently despite the fact that it

goes back several decades, illustrates many of these points and several others which I will

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discuss. The Hall decision shows why objections and arguments must be placed on the record. In

Hall, the appellate court disposed of a rather crucial argument presented by defendants regarding

the missing evidence instruction with the fol1owing comment:

A review of the record reveals that defendants did not object to the giving of the missing evidence instruction during the instruction conference. Accordingly, we find that defendants have "waived this argument on appeal. (Hall, 264 Ill. App. 3d at 424.)

Another example of what can go wrong when proceedings are not "spread of record" is

illustrated by K4 Enterprises v Grater, Inc., 394 Ill. App. 3d 307 (1st Dist. 2009). In that case,

the trial judge presided over off the record discussions that resulted in an oral settlement. The

jury was then discharged. However, no one recited the settlement terms in open court. Nobody

bothered to file any written document setting out the terms. Needless to say, the parties then got

into a dispute about the actual terms of the oral settlement.

The trial judge allowed the defense the opportunity to present an offer of proof regarding

what the defense claimed as the settlement terms. The defense declined to do so without first

hearing the trial judge's description of his recollection as to the terms. The trial judge stated his

recollection of the terms on the Record.

The Appellate Court followed the trial judge’s recollection and held the defense had

waived any right to challenge the trial judge's statement of the terms because the defense did not

present an offer of proof regarding its “recollection” including the testimony of its witnesses in

such an offer.

Another waiver that can arise is in the jury verdict itself "When there is a general verdict

and more than one theory is presented, the verdict will be upheld if there was sufficient evidence

to sustain either theory, and the defendant, having failed to request special interrogatories, cannot

complain." Dillon v. Evanston Hosp., 199 Ill. 2d 483, 492 (2002). Special interrogatories are the

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means by which issues for a post trial motions and later appeals are set.

For other cases discussing waiver, see Dienstag v Margolies, 396 Ill. App. 3d 25 (1st

Dist. 2009) (appellate court does not consider claim of error in plaintiff's closing argument when

defendant did not object to this closing argument); Curi v. Murphy, 366 Ill. App. 3d 1188 (4th

Dist. 2006) (appellate court held the defendants forfeited claim that a specialist standard of care

applied to plaintiff's medical malpractice claims when issue was not raised below, either during

jury instruction conference or in post-trial motion); York v. El-Ganzouri, 353 Ill. App. 3d 1, 10

(lst Dist, 2004) (appellate court held the defendant waived his claim the length of the jury voir

dire was improperly limited by failing to make a timely objection to the procedure).

This is not to say that all hope is lost if no objection is made during trial. The waiver and

forfeiture doctrines binds litigants but not the reviewing courts themselves. "The forfeiture

doctrine is an admonition to the litigant, not a limitation on the authority of the reviewing court."

Maffett v. Bliss, 329 Ill. App. 3d 562, 573 (4th Dist. 2002). The waiver doctrine is "an admonition

to the parties and not a limitation upon the power of a reviewing court to address issues of law as

the case may require." Schutzenhofer v. Granite City Steel Company, 93 Ill. 2d 208,211 (1982).

"Reviewing courts may look beyond considerations of waiver in order to maintain a sound and

uniform body of precedent or where the interests of justice so require." Halpin v Schultz, 234 Ill.

2d 381,390 (2009).

Notwithstanding the courts' authority to forego enforcement of the waiver doctrine under

certain circumstances, courts do not always do so. For example, in Lazenby v Mark's

Construction, 236 Ill. 2d 83 (2010), the plaintiff alleged negligence and willful and wanton

misconduct by the defendant, but the circuit court entered summary judgment for the defendant

based upon the Firefighters Rule. On appeal, the plaintiff asked the supreme court to address the

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split among appellate courts regarding whether the Firefighters Rule applied to claims of willful

and wanton conduct. The supreme court stated the issue was forfeited because the plaintiff did

not raise the issue in the circuit court, the appellate court, or the petition for leave to appeal.

Moreover, there are cases that impose an extremely stringent test for disregarding the

waiver rule. When a claim of error has been waived, "the error may be addressed if it constituted

plain error. . . . . In a civil case, plain error occurs when an error is of such magnitude that a party

cannot otherwise receive a fair trial or a deterioration of the judicial process occurs . . . . Our

supreme court has noted that cases where plain error has been found have involved blatant

mischaracterizations of fact, character assassination, or base appeals to emotion and prejudice."

Prairie v. Snow Valley Health, 324 Ill. App. 3d 568, 574 (2nd Dist. 2001). Very few errors can

be said to constitute such heinous conduct, so again, save yourself the headache and object at

trial.

In short, you might get lucky and find a reviewing court that will ignore your waiver. A

good attorney should not, however, ‘bet the ranch’ on that happening and should, instead, take

the necessary steps to preserve potential objections and claims of error on the Record and at the

time they occur. Luck is a wonderful thing, but planning is a bit more reliable.

Of course, there are ways to correct a defective record. For example, an offer of proof

can be made following discussions off the record as to the discussions that were had outside the

presence of the court reporter. In addition, if the record simply omits discussions that did in fact

take place, IL. Sup. Ct. R 323(c) provides for a "bystander's report." If all else fails, a

bystander's report should be promptly submitted in order to supply anything missing from the

record. However, the submission of a bystander's report does not guarantee its acceptance. In In

re Dawn H., 281 Ill. App. 3d 746 (1996), a father appealed an order terminating his parental

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rights. Father's attorney prepared a bystander's report pursuant to Rule 323 when it was

discovered one of the transcripts was unavailable. Id. at 752. Because a dispute arose regarding

the accuracy of the father's report, the trial court rejected that report and certified its own. The

appellate court affirmed the trial court's decision finding that the father "failed to show us how he

was prejudiced by the use of the certified report rather than [his own bystander's] report .... "Id.

at 758. Therefore, the best course is one which avoids the necessity for these "safety measures"

by making sure the record is complete in the first place.

II.

OFFERS OF PROOF.

Beginning with the rather basic premise that the failure to object waives the argument for

purposes of review, the next question to consider is what else is necessary for preservation of the

record for appeal. One of the most common mistakes made by practitioners is failing to make an

offer of proof. Whenever the trial court sustains an objection and bars the testimony of a witness,

or where the court grants a motion in limine excluding all or a portion of testimony or evidence,

a simple objection is insufficient to preserve any claim of error for appeal. An offer of proof must

be made outside the presence of the jury in order to preserve the right to later raise a claim of

error in excluding that evidence.

"An offer of proof is not required where it is apparent the trial court clearly understood

the nature and character of the evidence sought to be introduced." Dillon v. Evanston Hosp., 199

Ill. 2d 483, 495 (2002). It is better to be safe than sorry, especially because whether the trial court

clearly understood the nature of the evidence at issue lies in the eyes of the beholder. If you chose

not to make an offer of proof, understand that if you are wrong you may well have waived any

claim of error. Also understand that the waiver of a claim of error due to the failure to make an

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offer of proof could well be considered malpractice.

In terms of how to make an offer of proof, the following language from the Illinois

Supreme Court should be considered as a guide:

It is well recognized that the key to saving for review an error in the exclusion of evidence is an adequate offer of proof in the trial court, [Citations.] The purpose of an offer of proof is to disclose to the trial judge and opposing counsel the nature of the offered evidence and to enable a reviewing court to determine whether exclusion of the evidence was proper. [Citation.] The failure to make an adequate offer of proof results in a waiver of the issue on appeal. [Citation.] Where an objection is sustained to the offered testimony of a witness, an adequate offer of proof is made if counsel makes known to the trial court, with particularity, the substance of the witness' anticipated answer. [Citation.] An offer of proof that merely summarizes the witness' testimony in a conclusory manner is inadequate. [Citation.] (People v. Andrews, 146 Ill.2d 413, 420-21 (1992).)

As the supreme court points out, the substance of the witness' answer or testimony should

be made known with "particularity." My recommendation is to present that testimony in

"question and answer" form through the witness' testimony outside of the presence of the jury.

Failing that, if opposing counsel will stipulate to the propriety of a narrative offer of proof, you

can present a detailed and specific narrative of what the witness would have testified to if he or

she had been permitted to do so. Finally, when using such a narrative offer, make sure to err on

the side of inclusion rather than exclusion.

The same holds true when the court grants motions in limine. When a motion in limine

in granted, the key to saving for review an error in the exclusion of evidence is an adequate offer

of proof in the trial court. Snelson v. Kamm, 204 Ill. 2d 1 (2003). "Counsel makes an adequate

offer of proof if he informs the trial court, with particularity, of the substance of the witness'

anticipated answer; an offer of proof that merely summarizes the witness' testimony in a

conclusory manner is inadequate [Citation.]." Id. at 23.

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Offers of proof are necessary even i f the trial court grants a motion in limine before

trial. Motions in limine are pre-trial, interlocutory orders. They are presented before trial in

order to present and resolve questions of evidence before they are raised in front of a jury. They

are not, and should not, be considered as "part of the trial itself." Valdovinos v. Luna-Manalac

Med. Ctr., Ltd., 328 Ill. App. 3d 255,266 (1st Dist. 2002). In other words, the order of the trial

court is not "written in stone," and is subject to review and modification in light of what takes

place during trial.

A denial of a motion in limine does not preserve an objection to evidence later admitted

at the trial. Gee v. Treece, 365 Ill. App. 3d 1029, 1035 (5th Dist. 2006). Failure to renew the

objection at trial constitutes waiver. Id. A motion in limine ruling remains open to

reconsideration by the court throughout the trial. Id. Consequently, the party seeking to exclude

evidence that the court has previously considered must specifically object to the evidence when it

is offered at the trial. Id.

This is, again, illustrated by the opinion in Hall v. National Freight, cited supra. In that

case, following a pre-trial in limine order, defendants presumed that defendant Thomas would

not be permitted to testify as barred by the Dead Man's Act. After some testimony was

introduced by plaintiff, the trial court ruled that the Act had been waived, in part, by the

introduction of that evidence. Despite this, the defendants failed to call Thomas and, more

importantly for the purpose of this discussion, failed to make an offer of proof as to precisely

what testimony they later claimed on appeal had been improperly excluded by the pre-trial order.

The appellate court held that the failure to present an offer of proof could not be excused by

defendants' "reliance" on the pre-trial rulings and stated:

A review of the record reveals that the trial court ruled, over plaintiff's vigorous objections, that plaintiff had partially

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waived the protection of the Dead Man's Act. Despite this fact, defendant made no effort to call [defendant] Thomas, who was present during the entire trial, as a witness following the court's ruling in this regard. Furthermore, defendants failed to even question whether any ambiguity existed regarding the scope of the court's ruling or the strictures which remained from the court's original ruling on the motion in limine plaintiff brought with respect to the application of the Dead Man's Act. Finally, defendants made no offer of proof as to what the allegedly barred testimony of Thomas might have been had he been called as a witness by defendants in their case. As such, defendants failed to preserve this issue for appeal. However, because this issue involves a substantive right, we will consider it.

During their post-trial arguments before the trial court,

defendants themselves conceded that the real issue here was one of waiver, admitting they made no offer of proof as to the proposed testimony of Thomas. Notwithstanding this fact, they claimed that an offer of proof was unnecessary because it was clear what the testimony of the witness would be absent such an offer.

Plaintiff asserts that this argument is erroneous for several

reasons, not the least of which is the fact that the trial court had already vacated its in limine order, thereby raising a substantial question as to precisely what additional testimony defendants would have offered but failed to actually present at trial. Plaintiff argues that the absence of an offer of proof under these circumstances was critical. We agree.

Defendants concede that Thomas was extensively cross-

examined before the jury, and that much of his testimony regarding the accident was already before it. Therefore, in order to establish that they were precluded from introducing any additional evidence, an offer of proof was necessary. Moreover, when the trial court ruled that the Dead Man's Act had been partially waived, the scope of that waiver could and should have been explored with the court, Instead, defendants chose to make no effort to revisit with the court the issue of the in limine order or to ask the court to reconsider the limits placed on the testimony of Thomas, in light of its ruling of partial waiver. (Hall, 264 Ill.App.3d at 419.)

The passage above illustrates the point that I am trying to make. A discussion

immediately following this portion of the Hall opinion also points out that an attorney need not

incur the risk of contempt in making an effort to present an offer of proof. As the Hall court

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continued in its opinion:

[W]here the attitude of the trial court is such as to prevent a party from presenting offers of proof, none are necessary in order to preserve for review the court's rulings which exclude evidence. Aguinaga v. City of Chicago (1993),243 Ill. App. 3d 552, 572). (Hall, 264 Ill.App.3d at 420.)

In other words, where you politely ask for leave to make an offer of proof outside the

presence of the jury, and the trial court states that no offer of proof will be permitted, "honor has

been served." You will have done all that is technically necessary to preserve this issue for

review. I would suggest that you prepare an offer of proof in written form and tender it to the

court and ask that it be accepted as soon as practical thereafter. If the trial court rejects your offer

under those circumstances, your opponent cannot be later heard to argue on appeal that you have

not done everything necessary to preserve the record in this regard. Moreover, that document is

at least in the Record to show the reviewing court.

In short, the lesson from Hall is that while there may be certain limited circumstances in

which an offer of proof is not "necessary," the more prudent course is to always presume that an

offer of proof will be necessary in order to preserve objections and arguments for appeal. Short

of an outright refusal on the part of a trial court to allow you to make an offer of proof, there is

very little which will excuse the failure to present an offer of proof. There is no better way to

ensure waiver than to neglect this simple, crucial step.

III.

VOIR DIRE EXAMINATION OF WITNESSES.

In conjunction with offers of proof, many practitioners neglect to consider a request to

conduct a voir dire examination of a witness as part of an effort to show why the testimony of the

witness should be excluded or (following any ruling excluding the witness) allowed into

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evidence. In your efforts to bar a witness from testifying, a simple objection may 110t be

sufficient to preserve the record for appeal.

The best way to preserve for review the issue of whether the trial court erred in refusing

to exclude the testimony of a witness is to conduct a voir dire examination of the witness to show

why that testimony should have been excluded. Do not count on your opponent bringing out all

of the objectionable material during the examination before the jury. (At the same time, once the

"harm has been done," it is too late to raise objections that will do you any good before the jury.)

Accordingly, ask for leave to conduct a brief, voir dire examination of the witness in support of

your claim that the witness should be excluded or, following a ruling on a motion in limine, ask

leave to present a voir dire examination under the umbrella of an offer of proof not only to

convince the trial court that he or she may have erred, but also to preserve that matter for review.

It is true that an offer of proof in question and answer form may not be technically

necessary to preserve matters for review. However, the best way to illustrate the arguments you

wish to have an appellate court consider is to have the testimony come from the mouth of the

witness rather than from your own statements.

In determining whether an expert is qualified to render an opinion based on novel

scientific evidence, Illinois follows the test set forth in Frye v. United States, 293 F. 1013 (D.C.

Cir. 1 (2003), which was more recently discussed in Donnellan v. First Student, Inc., 383 Ill.

App. 3d 1 040 (1st 2008). A thorough discussion of voir dire examinations of experts can be

found in In Re Marriage of Gambla and Woodson, 367 Ill.App. 3d 441 (2nd Dist. 2006).

Naturally, this is not to be confused with the federal standard set out in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993).

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IV.

AVOIDING REVERSlBLE ERRORS IN GENERAL.

The Hall case should be reviewed as an example of why it is necessary to make sure that

objections are specific, explicit, and set forth on the record. As I stated in the Introductory section

of these comments, if it is not placed on the record to begin with, it simply did not take place as

far as the reviewing court is concerned, and it is not preserved for appeal. Further, as the Hall

opinion points out, raising arguments for the first time in the post-trial motion is insufficient to

preserve arguments for appellate review.

A contemporaneous objection is required in order to preserve anything for review!

"When a motion in limine is denied, a contemporaneous objection to the evidence at the time it is

offered is required to preserve the issue for review .... Moreover, when an objection is made,

specific grounds must be stated and other grounds not stated are waived on review." Jones v.

Rallos, 384 Ill. App.3d 73, 83 (1st Dist. 2008). Contemporaneous is not the same as

instantaneous, but objections should be raised at the earliest opportunity.

Common sense must always prevail. Continuing to raise objections when those

objections themselves become obnoxious or irritating before the jury is unnecessary. Motions in

limine are the preferred means to preserve potential error for review, recognizing of course that

even the denial of a motion in limine is insufficient to allow you to ignore the requirement of a

contemporaneous objection. As noted in Romanek-Golub v. Anvan Hotel Corporation, 168 Ill.

App. 3d 1031 (lst Dist. 1988):

A motion in limine merely presents an issue of admissibility of evidence which is likely to arise at trial in a pre-trial setting. As such, the order, like any other interlocutory order, remains subject to reconsideration by the court throughout the trial. [Citation omitted.] 'When a motion in limine is made, the trial judge must exercise his discretion in granting the motion or in

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denying it, thereby leaving to the unsuccessful movant the procedure of specifically objecting to the evidence when it is offered at trial.' [Citation omitted.] (Romanek, 168 Ill. App.3d 1031, 1040.)

I n other words, even if a motion in limine has been presented at the beginning of trial,

and the trial court rejects that motion, it is necessary to make a contemporaneous objection to

preserve the issue for review. Jones v. Rallos, 384 Ill. App. 3d 73, 83 (1st Dist. 2008).

Next, make sure that you get a ruling on your motions and objections. This is particularly

important with regard to an offer of proof, which must be presented to show the scope of the

excluded evidence:

In addition, defendants made an offer of proof to the court that the arbitrator's decision should be submitted to the jury. The exhibits were admitted into evidence for the limited purpose of the offer of proof, but the record does not show a final ruling by the trial court. We assume the court rejected the offer of proof as the record does not indicate the jury received evidence or heard arguments based on the arbitrator's decision. For future guidance to the trial courts, we would require a ru1ing on an offer of proof even though a ruling has been made on the same matter via a motion in limine. A motion in limine is a preliminary ruling which the court may change as the evidence in the trial is fully developed. In this case, defendants, in effect, asked for a change in the court's initial ruling through the offer of proof. The court heard the argument, but the record does not indicate an explicit ruling on defendants' offer. (Ely v. National Supermarkets, Inc., 149 Ill. App. 3d 752, 760 (4th Dist. 1986).)

Finally, even if an objection is made and sustained, you must consider the impact of the

objectionable material upon the jury. If what was done before the jury can be "cured" by

instructing the jury to disregard the evidence, ask that the trial court do so. In those instances,

however, where the effect of what the jury has heard is so prejudicial that you believe your client

can no longer receive a fair trial, you must ask for a mistrial in order to preserve this matter for

review even if the objection has been sustained and the jury instructed to disregard what it just

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heard.

It is difficult for any attorney to ask for a mistrial. After doing all of the work and

spending a considerable amount of time and expense during a trial, you are naturally reluctant to

ask the trial court to grant a mistrial because the trial court may accept your request. At the same

time, you must recognize that if what has taken place is so prejudicial that you believe the jury

cannot remove it from their deliberations, you must ask for a mistrial in order to preserve this

issue rather than sitting back and speculating on the chances of winning the case despite the

impropriety:

A motion for a mistrial is a procedural tool designed to cut short a trial for legal reasons which preclude a verdict and judgment. [Citation omitted.] A motion for mistrial prevents parties from getting two chances at a verdict, and, thus, can be made only before the jury returns its verdict. [Citation omitted.]

If the motion is not made before the verdict, the party

seeking a new trial has waived the mistrial issue. (Redmond v. Socha, 216 Ill. 2d 622, 639 (2005).)

Of course, like many other "rules," the reviewing courts have not always adopted

consistent positions on this issue. For example, in Brown v. Bozorgi, 234 Ill. App. 3d 972 ( 1st

Dist. 1992), the First District distinguished an earlier opinion of the same court in Bauer v.

Tiinucci, 33 Ill. App. 3d 1051 (1st Dist, 1975), in which the Court had held that the failure

to make a timely motion for a mistrial was deemed to be a waiver of the error as a basis for

a new trial. The court in Brown commented as follows:

Defendant relies on Bauer v. Timucci (1975),33 Ill. App. 3d 1051,339 N.E.2d 434, where plaintiffs failure to make a timely motion for mistrial was deemed a waiver of the error as a basis for a new trial. Bauer, 33 Ill. App. 3d at 1057, 339 N.E.2d 434.

However, courts have clearly distinguished Bauer on the ground that the prejudicial conduct alleged in Bauer was not raised in the form of either an objection or a motion for mistrial.

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[Citations omitted.] A simple objection is sufficient to preserve the issue of

misconduct for consideration on a post-trial motion. [Citations omitted.] If counsel entered timely objections to the remarks at the trial and specifically set forth the errors in his post-trial motion, then the issue has been preserved for our consideration. (Brown, 234 Ill. App. 3d at 975.)

Again, the request for a mistrial is a decision that must be weighed in light of the

particular circumstances confronting you at the time. Justice Greiman's observations in Brown

may be accepted by a reviewing court as obviating the need for an objection and a motion for

mistrial. On the other band, the facts of the case may leave you in a situation where a reviewing

court might later ask why, if you were satisfied to simply have the trial court sustain your

objections and ask the jury to be instructed to disregard the comments, you chose to "roll the

dice" and await the outcome before claiming that the alleged misconduct was so grievous that

your client could no longer receive a fair trial.

The answer to this question is, again, common sense. If what has taken place is really

that egregious, a motion for a mistrial should be considered if for no other reason than the fact that

error is never presumed on appeal. It is always your burden as the party appealing to establish

that error not only took place, but also that it was prejudicial rather than harmless. To conclude

with yet another rubric, appeals are decided on the basis that no one is entitled to a perfect trial,

but only a "fair one." Carlson v. City Construction Company, 239 Ill. App. 3d 211, 246 (1st Dist.

1992). In light of this, if you really believe that what your opponent has done has placed you in a

position where the jury can no longer fairly consider your client's position, ask for a mistrial and

do not presume that the appellate court will come through like the United States Cavalry and

save the day at a later date.

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CONCLUSION

There are exceptions to every rule, including every one of the "rules" I have set out above. It is

quite possible that you may violate everyone of the principles I have discussed in this brief

commentary and still be able to convince a reviewing court to consider your arguments and

objections even if they have not been arguably preserved for review. At the same time you owe it

to your clients, to yourself, and to other attorneys who must bear the brunt of legal malpractice in

general through rising malpractice insurance rates, not to count on reviewing courts bending over

backwards to consider issues which could and should be preserved by fol1owing these simple

guidelines.

Also, please remember the post trial motion and the appellate process are exercises in

hindsight, whereas the trial is a live event unfolding in real time. Tactical considerations

obviously influence whether a trial lawyer makes an objection and how such an objection is

made. For example, a trial lawyer's decision not to object to certain testimony because the trial

attorney does not want to call too much attention to the matter is what I as an appellate

practitioner will call waiver. Hopefully in a trial you get what you want in terms of evidentiary

rulings, but if you lose the trial and bear the burden of proving why a new trial should be

ordered, you may not want what you got.

The point is that a trial lawyer's tactical decisions at trial may not necessarily be the best

decisions in the retrospective appeal process.

Good luck!'

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