and ten by dr peter j keris of the springfield clinic this is a medical malpractise case arising out of that procedure and to begin with there are a few here facts where there is no dispute between however the defendant disputes and disagrees with whether or not this injury could have occurred even in the presence of well i'm sorry but your phrase that whether or not this injury could occur without a violation of the standard of care in the absence of any net reagents there also is an allegation that the defendants in this case failed to obtain informed consent of the plaintiff prior to her stating the procedure and whether or not the informed her of the risk of post surgical bleeding specifically related to the spleen and the potential injury of the spleen all of parties agree the injury to the spleen is a known complication of a call and ask if your procedure  appeal are whether or not the trial court made errors in some of his evidentiary findings as well as in terms of the argument that was allowed during the argument the st of which is the allegations by the defendants that the plaintiff was a harm however the manner in which the definitiveness case approached that argument was relatively novel in that they did not file the in for a minute defenses contributory negligence or failure to mitigate but rather argue that this evidence and this argument was appropriate  conduct of individuals not a party to the lawsuit or conditions that are not caused by argument the parties for example in the sullivan v edwards case one of the allegations was that the nurses did not properly administer medicine the nurses were not parties to the lawsuit under traditional so proximate cause analysis it would be appropriate for the defendant in that case to request that was improper and should not have been introduced was all evidence regarding mrs ark about misconduct that the defendant argued caused her harm so for example that she was taking aspirin and failed to inform her physicians that she was taking aspirin and that she continued to take aspirin after the surgical procedure may i interrupt you there for a moment again looking up the complaint and actually i'm not sure i think this was i've lost track your that's an amended that information did not change the rules of civil procedure the defendant was free to deny those allegations and to present evidence to the contrary in court regarding the plaintiff's conduct however the defendant still had to follow the rules of civil procedure which say that when a defendant wants to continue to raise an allegation of the plaintiff either contribute to her own harm or fail to mitigate her damages those const affirmative defenses and as affirmative defenses they must be pled in contained in the answer to but in the absence of that in the absence of that regardless of the allegations contained in the complaint as written by the plaintiff where the defendant has not raised as a firm defenses they are wait and they may not be raised during trial so yes while the plaintiff raises particular allegations and the defendant was free to refute these allegations either by is an argument that the plaintiff did not did not preserve this issue for review want to appeal as was discussed in the plaintiff's reply brief however that rule has a very specific requirement and that is because in most instances when it comes to the admission of evidence is both preferable and necessary for the court to consider that admission and evidence contemporaneously to its proffer however that is not the only while there are instances such as here where the court is looking at something that does not require that contemporaneous consideration because here are the court was making a legal determination it was answer a question of long question o whether or not this all proximate cost can be used to it to raise issues regarding the plaintiff's conduct and in that context because the court addressed this issue extensively representations which one hopes will be accurate but as the evidence is presented may not be which is one of the other key reasons why motions and limited may be reconsidered during the course of a you would have known better has been the trial court has an opportunity to reconsider that ruling and to reconsider the context up to and including the moment when the  clearly the general rule with regard to motions in limine that they are not final until after the evidence has already been heard and they are in a laboratory and however courts have recognized that in some instances and  plainest position here this is one of those instances that contemporaneous objection is not necessary because the trial court's order on a motion in limine was sufficiently definite as to inform the parties that its ruling proposals i appreciate your position and i would agree with you to some extent that this exception to the general rule of contemporaneous objection should be used sparsely that there is a reason that the appellate courts have developed a rule that you must really raise that objection to the testimony because so often the admission of testimony depends so much on how it is presented but when there is an exception that has been created even though it is a narrow one it was created for instances like this one where the court is making a decision on a question of law where has had ample opportunity to hear argument from the parties and to understand exactly how that information and that testimony was going to be presented at trial in which it was it was consistent with the counsel's representations as well as the discovery depositions before trial in this instance the need and the reason for the existence of the rule is no longer a clickable because the integrity of the trial court's decision has been maintained and the hardest kind of in this instance understand that even if this had been reraised even if objection had been made during the trial the outcome and the ruling from the court would have been the same however i would also add that in this particular instance where the question is a relatively novel one dollar and one dollar with significant potential impact that the questions of for iture waiver as we noted in our reply brief control the actions of the parties but do not apply to them or so i would encourage the court to consider the legal issues and that are that are raised by this case and to make a determination that even if you believe that forfeiture and waiver are appropriate in this matter and that you would like to take a stricter application of that general rule that in this particular instance it is nonetheless worthwhile for the court to address the issues that have been to me that plaintiff's asserted a claim that it would seem the same time she seeks to preclude the introduction of evidence or the evidence that if it's not to admit was only relevant if that issue had been raised the plaintiff raised a very specific issue which is that the defendant was negligent because the defendant failed to inform her of the risk of taking ask the defend defendant in order to raise that and to make this relevant evidence that was admissible had to follow the rules of civil procedure in it as we've discussed in our brief this is a very important procedure to be followed it is not a mere technicality because it goes to the very heart of how illinois has apportioned fought between the parties under under tort law and under the modified comparative fault thank the amec has been in both adopted by the only supreme court and then ratified by the only legislature which says that there must be a portion of fall between the parties so when a defendant seeks to follow a sole proximate cause or impeach air defense that is an all or nothing argument it s must be informed that allocation of fault is appropriate between the parties and furthermore it when the defendant seeks to say that the plaintiff was at fault that the plaintiff should bear some burden of the responsibility of harm that distinctions that are to be made about how it is been framed how it has been phrased before the court on appeal but my interpretation of trial counsel's argument at trial was consistent with what we are arguing now which is i think you're on mute mr graham i am ok i'm not being now your honour's good morning and karen to grand and behalf of the defendant of police springfield clinic and dr peter curacao may please t issue of law plaintiff has not reason issue of law has not raised a novel issue of law this is not a legal issue this is a well settled issue they had a defending and may raise  a sole proximate cause defense as the trial court specifically recognized when the evidence merits it this is an issue that is intrusted to the sound to the sound raising a contemporaneous objection and it is if there were ever an exception to that rule this case would not provide the exception because if the record in this case points out nothing else it's that the very kind of changes trial judge was paying close attention to the testimony throughout the case and the judge at the end of the at the end of the trial  example of where it's absolutely necessary for the purposes not just for the trial court to know when this is them or is very important because as all of the justices on this panel know the trial judge it's certainly not the burden of the trial judge to jump in and say did you want to preserve that objection to this testimony or that testimony but how else can this court will what what is the testimony that plaintiff's now is contesting and we know that the judge was willing to consider those issues and went back and did consider them and if and it was one of the threshold issues that we raised in our grief not only was there not a contemporaneous objection to the testimony and candidly there shouldn't have been because the testimony as justice harris pointed out responded specifically not only to the elevation allegation that neither dr purist's nor any other agent or employee of the spring it biased rebecca that she should not take aspirin for a period of time after the call and ask to be yet brought th and it's you know counsel cites what she says was the issue before the jury that's not accurate because the issue before the jury wasn't simply the issue that plaintiff put in plaintiff's instruction plaintiff started out from the very get go of this trial arguing that there was a diagnosis and arguing there at the at the at and promising frankly that the jury was going to hear an expert come forward and testify to the to the things that d or if i understand correctly it's your position that the plaintiff's conduct kiran be the basis of a so proximate cause the birds a sort of by the friend in this case or other we know that what was alleged in the complaint here raise the type of evidence that was presented and again i have to correct counsel who say that that that there was some sort of blaming or some sort of accusation of negligence claiming sole proximate cause you already knew basically was coming in through the plaintiff's own case based upon their allegations and there are many complaint yes your honor and also based upon the testimony of their expert so when the when the players council stood up and and at the beginning of the trial said you're going to hear from from dr i'm and i hope i'm pronouncing his name correctly doctor  you're arguing should apply really has limited it to these sort of factual circumstances where everything that would be needed for that proximate so proximate cause defense is already going to be expert in it and well without you know without without you having to present a defense or assert it as a defense because the plaintiffs are going well you should have had to raise these defenses absolutely not your  i thought was pretty unique or interesting at least was that no cuz everything we need for sole proximate cause is coming in through the plaintiff's case so we don't need to assert affirmative defenses out there that's exactly right your honor and i things do they apply to the ones you just moved to the apply when so proximate cause the fence is based upon the conduct of the plaintiff and specifically have you address or argument that very experienced lawyers doing this a lot you understand that this court is ready to decide this case the right guidance number two it's so my question is what are we supposed to s especially when considered in a situation like this where the failure or the lack of information given back to springfield clinic when the springfield clinic was calling to say this arc of our how are you doing and the information they're getting back is i'm ok they're not getting anything about the problems she was experiencing and the fact that  subject of a surprise because defense but i also can say it when the court raises the issue of well you know what what is the what is the take away from this case for future cases for future situations is their issue doesn't even have to be addressed because what happened here was the judge denied the motion or rather deny the instruction refusing instructions tendered by the defense and there was a limiting instruction that i think we would argue and you know again the judge gave the limiting instruction we bennett's within his discretion becomes one of but there there are the plaintiff excepted it the plaintiff accepted what the court did to cure and under the how the way case of this court you know what it is i think reported that paraphrase was what was fair enough then is fair enough now so for the plaintiff now to say well it wasn't good enough it didn't cure the problem the plaintiff gave the court delivering instruction which the court re verbatim to the jury the only sort of after the facts suggestion of a motion for a mistrial is nat appropriately i documented in the record there is no honor in there was and i'll submit to the court that there was no requirement that the defense object to the plaintiff putting that affidavit in the record row three hundred and twenty three c talks about it i  both defense counsel and the trial court referred to the affidavit and there was no objection made or criticism as to the lack of compliance with the supreme court about some other thing and the other thing is the ingestion of these medications and the other thing is no report to spring for a clinic that would leave that doctor  poster motion after filing in those of the appeal and this court actually sends out a diving statement that specifically pertain to you know set out the time frame the plaintiff then file mate if there is something missing from the record ma and within the time set forth by this court and also under the supreme court rule send to the other side here is a proposed bystanders report then we would have had the opportunity to either agree or disagree or w discusses the evidence that they are seeking to exclude talks about the pleading requirements for affirmative defenses and then states that because the finance have failed to create any such defenses they should be precluded from offering this evidence and argument this point in time so while it time this i believe things were phrased differently or arguments were made in the in the alternative on the whole i believe that this issue taken by plaintiff on appeal is consistent certainly sufficiently consistent with the position taken by plaintiff's counsel at the trial next i would like to address the question raised by justice dear mond about whether or not the evidence presented in support of defendant so proximate cause argument all came from the right i thought this was a very interesting question and this is why this case is very interesting legal issue with regard to so proximate cause because yes the plaintiff did it raise allegations persuasive or unsupported by the evidence the distinction and why everything changes is because here are the and it did not just do that the defendant went a step further and both introduced evidence and argument that num negligence i understand it with the trout more than here counsel has argued that so long as they didn't use the word fault or negligence or blame against the plaintiff this somehow that is different and that's not raising an affirmative defense a contributory negligence but as we stand our brief that's really a difference without a distinction that the way that it is phrased is not a permanent or even print an inquiry is whether or not a jury in this case could have concluded that the defendant was not liable because of something th i would like to briefly address the limiting instruction because i believe here in the council on appeals taking a slightly different approach or position than taking to the trial court because of the trial court and defense counsel was very clear with their concerns is limiting structures work where there is a discrete level of testimony that can quickly and as i said discreetly be dealt with but here it was prove a six throughout the trial and as a result no limiting instruction could mitigate the harm done addition to defense counsel but also expressed concern about a limiting instruction saying that in expressing the concerns the highly prejudicial test that already been heard and that in a structure could only be mildly effective at trying to counteract nevertheless trial counsel do it with trial counsel should have done when the court made it clear that it was excluding this evidence and would not be declaring a mistrial and would instead be giving a limiting instruction which did the best