No. 3-03-0943

	(Consolidated with No. 3-04-0007)

_________________________________________________________________

							IN THE

							APPELLATE COURT OF ILLINOIS

							THIRD DISTRICT

							A.D., 2005 

GREGORY FERRO,					)	Appeal from the Circuit Court

							)	of the 12th Judicial Circuit,

	Plaintiff-Appellant,		)	Will County, Illinois,

							)

	v.						)	No. 94-L-327 

							)	

LORRAINE GRIFFITHS,	)		 ) 	Honorable                   

	)	Richard J. Siegel,

	Defendant-Appellee.			)	Judge, Presiding.

_________________________________________________________________

GREGORY FERRO,					)	Appeal from the Circuit Court

							)	of the 12th Judicial Circuit,

	Plaintiff-Appellant,		)	Will County, Illinois,

							)

	v.						)	No. 99-L-327 

	)

	)	Honorable 

LORRAINE GRIFFITHS,	)	Richard J. Siegel

	)	and Amy Bertani-Tomczak,

	Defendant-Appellee.			)	Judges, Presiding.

_________________________________________________________________

JUSTICE LYTTON delivered the opinion of the court:

_________________________________________________________________

	Plaintiff Gregory Ferro sued defendant Lorraine Griffiths for

injuries he sustained when the vehicle driven by Griffiths struck

the rear bumper of the van in which Ferro was a passenger.  The

jury returned a verdict in favor of Griffiths; the trial court

subsequently granted Griffiths’ postjudgment request for fees and costs.  On appeal from the verdict (No. 3-03-0943), Ferro claims

that the trial court made several errors during witness testimony,

failed to direct a verdict or enter judgment notwithstanding the

verdict in his favor, failed to exclude jurors who admitted that

they were against lawsuits, and improperly questioned a witness

from the bench.  In a separately filed appeal (No. 3-04-0007),

Ferro also claims that the court erred in entering sanctions for

fees and costs when Griffiths’ motion only requested costs.  We

affirm the judgment entered in favor of Griffiths in case No. 3-03-

0943 and vacate the sanction order in case No. 3-04-0007.  

	On January 4, 1999, Ferro underwent cardiac surgery during

which a number of stents were placed in his coronary artery. 

Following surgery, Ferro developed a heart attack rupture.  Three

days later, cardiovascular surgeon Dr. Ramesh Veeragandham

performed open heart surgery to investigate Ferro’s condition.  He

found fluid around the heart, a condition called pericardial

effusion.  The doctor drained the fluid, and Ferro was discharged

on January 15, 1999.  At the time of discharge, Ferro had chest

pain at the incision site but did not have internal chest pain.  He

also required oxygen and was taking Coumadin to prevent clotting. 

He planned to spend several weeks recuperating at the home of his

cousin, Darlene Hennis.  

	That afternoon, Hennis drove her van to the hospital to take

Ferro home.  An attendant escorted Ferro out of the hospital in a

wheelchair and put him in the front passenger seat of the van.  The

attendant stood the oxygen tank on the floor of the van between Ferro’s feet and legs.  The top of the tank was less than one foot

from Ferro’s chest.  While traveling home, Hennis stopped for a

traffic light and was struck from behind by Griffiths’ vehicle. 

Ferro described the impact as "very heavy."  According to Ferro,

the tank handle on the oxygen regulator hit him in the chest.  He

immediately felt pain and pressure inside his chest.  

	An ambulance transported Ferro back to the hospital. When he

arrived at the emergency room, the pain in his chest was building. 

x-rays were taken which showed an enlargement of the heart.  Dr.

Sennett, a radiologist, reviewed the x-rays and determined that

Ferro had a pericardial effusion.  The next day, Dr. Veeragandham

opened the lower part of the previous incision in Ferro’s chest and

drained approximately 600 cc of blood-stained fluid from the

pericardial sac.    

	Ferro was released and later filed suit against Griffiths for

the injuries caused by the accident.  Prior to the trial, Ferro

sought an order barring Griffiths from presenting any photographs

of either vehicle to the jury or suggesting a relationship between

the severity of the collision and the severity of injury to

plaintiff.  Ferro argued that although the pictures showed minor

damage to the vehicles, he was "particularly susceptible" to injury

because of his preexisting medical condition.  At the hearing,

Ferro’s counsel argued that his injuries were aggravated because of

the medical procedure that had just been performed.  The trial

court denied the motion, noting that plaintiff’s condition did not

preclude the relevancy of the photographs. 

	At the trial, Dr. Kevin Dolehide testified that he was Ferro’s

primary treating physician upon his readmission to the hospital. 

When Ferro arrived, he complained of chest pain and shortness of

breath.  Dr. Dolehide noted that Ferro did not have these problems

when he was discharged a few hours earlier.  Tests indicated that

there was bleeding around Ferro’s heart which was of sufficient

quantity to put pressure on his heart and diminish the outflow of

blood from the heart itself, a condition called tamponade.  Dr.

Veeragandham was consulted and diagnosed pericardial effusion with

evidence of tamponade.  Dr. Dolehide believed that the blunt trauma

from the force of the oxygen tank caused the pericardial effusion

because nothing else in the plaintiff’s history would indicate any

other cause.  He admitted that a person can develop a pericardial

effusion from surgery but stated that he would have to defer to a

cardiologist as to how long after surgery a patient could develop

such a condition.  He also testified that the use of Coumadin could

help develop fluid around the heart, even without trauma.  

	The trial judge then asked a few brief questions regarding the

level at which a pericardial effusion "turns into a tamponade." 

Dr. Dolehide clarified that a pericardial tamponade is caused by

excess fluid around the heart.  The accumulation of fluid causes

the muscles of the heart to restrict.  It is the restriction of the

heart that leads to the diagnosis of a tamponade.  The judge

thanked the doctor and dismissed him from the stand.

	Dr. Charlene Sennett testified that she reviewed both Ferro’s

x-rays of the chest cavity and the CT scan of his thorax.  On direct examination, Dr. Sennett testified that she did not know

what caused the pericardial effusion in this case.  She stated that

she could not tell counsel "why this particular person had a

pericardial effusion."  The effusion could have been caused by

recent open heart surgery, myocardial infarction or several other

reasons.  

	Cardiologist Dr. David Cusick reviewed Ferro’s CT scan with

Dr. Sennett and noted that there was a moderate pericardial

effusion present.  An ultrasound of the heart revealed that Ferro

was experiencing severe reduction in the squeezing function of the

heart and that there was a large pericardial effusion present.  Dr.

Cusick did not note any bruising to Ferro’s chest beyond that

expected from the recent sternal surgery.  Plaintiff’s counsel then

asked Dr. Cusick, "You did not formulate any opinions as to the

causation of Mr. Ferro’s pericardial effusion, did you?"  Dr.

Cusick responded, "*** I don’t believe I did write down a specific

cause of the effusion in my notes."  

	During cross-examination, Dr. Cusick explained that many

things can cause a pericardial effusion, including various types of

infections, heart disease and trauma.  People who have had heart

surgery can develop a pericardial effusion.  He could not say to a

reasonable degree of medical certainty that the car accident was

the cause of Ferro’s pericardial effusion.  Dr. Cusick stated that

if the accident was not considered the two likely causes of the

pericardial effusion would be his recent heart attack and his

cardiac surgery.  Ferro’s attorney did not object to defense counsel’s questions.  On redirect examination, Dr. Cusick admitted

that the accident could have caused the pericardial effusion.     

	On direct-examination, Dr. Veeragandham testified that about

50 cc of pericardial fluid is normally present around an adult

male’s heart.  During Ferro’s surgery on January 7, 1999, Dr.

Veeragandham removed approximately 400 cc of clear serous fluid. 

The blood-stained fluid he drained from Ferro’s heart after the

accident was different from the fluid he drained during the January

7 surgery.  He testified that it was possible that the fluid

accumulated between the first surgery and the surgery on January

16.  

	On cross-examination, Dr. Veeragandham indicated that fluid

could accumulate around the heart without blunt trauma to the

chest.  The same process that started the original accumulation of

fluid can continue.  The anticoagulant therapy that plaintiff

received could have also caused bleeding in his pericardium.  Dr.

Veeragandham testified that he could not say the reason for the

recurrence of the effusion.  When asked whether he held an opinion

as to how the pericardial effusion was caused, Dr. Veeragandham

stated, "I do not have any opinion."  Plaintiff’s objection to his

answer was overruled.  

	In closing argument, defense counsel argued that "three of the

four doctors determined that there is not enough evidence for them

to determine that this accident caused the injuries complained of

here *** three out of four doctors can’t be wrong."  Plaintiff’s

counsel did not object to defense counsel’s comments.

	The trial court entered a directed finding on the issue of

negligence.  The jury returned a verdict in favor of Griffiths on

the issue of liability.  Ferro’s posttrial motion for judgment

notwithstanding the verdict or, alternatively, a new trial was

denied. 

		I.

	Admission of Photographs

	Ferro claims that it was improper and highly prejudicial to

allow defendant to offer into evidence photographs that showed

little damage to either vehicle.  He argues that expert testimony

is required to show a correlation between lack of damage to the

vehicles and injury to plaintiff, citing the recent case of 

DiCosola v. Bowman, 342 Ill. App. 3d 530, 794 N.E.2d 875 (2003).   	It is within the discretion of the trial court to decide

whether evidence is relevant and admissible.  City of Rockford v. Elliott, 308 Ill. App. 3d 735, 721 N.E.2d 715 (1999).  "Relevant evidence" is that which 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, 342 Ill. App. 3d 530, 535, 794 N.E.2d 875, 879 (citing Wojcik v. City of Chicago, 299 Ill. App. 3d 964, 702 N.E.2d 303 (1998)).  

	When the trial court makes a decision to admit pictures, it

has to determine whether the photographs make the resulting injury

to the plaintiff more or less probable.  The court must determine

whether the nature of the damage to the vehicles and the injury to the plaintiff are such that a lay person can readily assess their

relationship, if any, without expert interpretation.  See Voykin v. DeBoer, 192 Ill. 2d 49, 733 N.E.2d 1275 (2000).  A reviewing court will not disturb the trial court’s decision absent a clear abuse of

that discretion.  DiCosola, 342 Ill. App. 3d 530, 794 N.E.2d 875.  An abuse of discretion occurs only where no reasonable person would

take the position adopted by the trial court.  Taxman v. First Illinois Bank of Evanston, 336 Ill. App. 3d 92, 782 N.E.2d 803 (2002).    

	In DiCosola, the trial court found that, absent expert testimony, the defendant could not admit photographs of the damage

to the vehicles merely to argue that there was a relationship

between the amount of property damage and the nature and extent of

plaintiff’s injury.  Based on that decision, the court granted

plaintiff’s motion in limine to exclude the photographs of the vehicles.  

	On review, the appellate court noted that the decision to

admit the photographs was within the trial court’s discretion.  The

court held that the trial judge did not abuse its discretion in

requiring expert testimony to relate the extent of the vehicular

damage to the extent of plaintiff’s injuries.  The court rejected

both the notion that such pictures must always be allowed or, on

the other hand, that expert testimony is always necessary for the

photographs to be admissible.  DiCosola, 342 Ill. App. 3d 530, 537, 794 N.E.2d 875, 881.             

	We agree with DiCosola.  In any given case, expert testimony may be required to show a proper correlation between the extent of

the vehicular damage and the nature and extent of plaintiff’s

injury.  However, we refuse to adopt a rigid rule that proscribes

the admission of pictures without an expert.  The critical question

in admitting these photographs is whether the jury can properly

relate the vehicular damage depicted in the pictures to the injury

without the aid of an expert.  This is an evidentiary question that

the trial judge must resolve.  

	While this case is close, we cannot say that the trial court abused its discretion by admitting the photographs without expert

testimony.  The pictures were introduced to show why minimal damage

to plaintiff’s vehicle was relevant to the nature and extent of

plaintiff’s injuries.  Ferro testified that the impact to the van

was "very heavy," causing his body to move back and forth and hit

the oxygen tank.  Dr. Cusick testified that Ferro did not have any

additional bruising to his chest after the accident.  The

photographs depicted the physical damage to both vehicles as a

result of the accident.  Under these facts, the trial judge could

properly have found that the pictures, by themselves, were relevant

to prove the matter at issue was "more or less probable."  See

Wojcik, 299 Ill. App. 3d at 971, 702 N.E.2d at 309. 

	[The following material is noNonpublishable material  under Supreme Court Rule 23 removed here.]

	II.

	Opinion Testimony of Dr. Cusick and Dr. Veeragandham

	Ferro first claims that the trial court erred in allowing Dr. Cusick and Dr. Veeragandham to testify that they held no opinion

whether the cause of the pericardial effusion was the motor vehicle

accident.  He further argues that the trial court erred in

permitting defense counsel to state during closing argument that

the doctors’ lack of opinions as to causation were equivalent to a

negative opinion. 

	In general, an expert witness cannot base opinions on mere

conjecture or guess.  Dyback v. Weber, 114 Ill. 2d 232, 500 N.E.2d 8 (1986).  In other words, experts cannot base opinions on what may

have occurred or what the expert believed might have happened in a

certain situation.  Schuler v. Mid-Central Cardiology, 313 Ill. App. 3d 326, 729 N.E.2d 536 (2000).  The determination as to what

is admissible testimony is a matter within the sound discretion of

the trial court.  Schuler, 313 Ill. App. 3d 326, 729 N.E.2d 536.  

	Here, Dr. Cusick was asked to give an opinion as to the

causation of Ferro’s pericardial effusion on direct examination. 

He was unable to provide one.  On cross-examination, both Dr.

Cusick and Dr. Veeragandham testified that they could not say

within a reasonable degree of medical certainty that the motor

vehicle accident caused the second pericardial effusion.  Contrary

to Ferro’s assertion, they did not attempt to speculate as to the

cause or guess what might have happened during the accident.  Both

doctors testified that they were unable to speculate and that any

opinion would not be based on a reasonable degree of medical

certainty.  The testimony was not an expert’s guess; it was a

refusal to guess.  Consequently, we find no abuse in the trial court’s decision to allow their testimony.    

	The trial court also permitted defense counsel to make the

argument in his closing that "three out of four doctors can’t be

wrong."  Ferro maintains that this was error, and we are inclined

to agree.  However, he failed to object to the comment during

closing argument; thus, the issue has been waived.  See Illinois State Toll Highway Authority v. Heritage Standard Bank and Trust

Co., 163 Ill. 2d 498, 645 N.E.2d 896 (1994).     

	Even if no waiver had occurred, when improper comments are

made during closing argument reversal is appropriate only if the

comments substantially prejudiced the challenging party.  Ramirez v. City of  Chicago, 318 Ill. App. 3d 18, 740 N.E.2d 1190 (2000).  A reviewing court will not grant a new trial unless the argument

clearly denied  plaintiff a fair trial when that trial is viewed in

its entirety.  LID Associates v. Dolan, 324 Ill. App. 3d 1047, 756 N.E.2d 866 (2001).  Here, defense counsel’s improper comments were

brief and isolated.  When viewed in light of the entire closing

argument as well as the evidence adduced at trial, the statement

did not substantially prejudice Ferro’s case. 	

	III.

	Cross-examination of Dr. Cusick and Dr. Veeragandham

 	Next, Ferro claims that the trial court erred in permitting Griffiths to elicit opinion testimony during the cross-examination

of Dr. Cusick and Dr. Veeragandham which was beyond the scope of

plaintiff’s direct examination.  

	As a general rule, cross-examination is limited to the subject matter inquired into on direct examination.  People v. Williams, 66 Ill. 2d 478, 363 N.E.2d 801 (1977).  However, on cross-examination,

a litigant may properly develop circumstances lying within the

witness’s knowledge, which explain, discredit or destroy the

witness’s testimony on direct examination even though the questions

may incidentally constitute a new matter that aids the cross-

examiner’s case.  Williams, 66 Ill. 2d 478, 363 N.E.2d 801; Anderson v. Mercy, 338 Ill. App. 3d 685, 788 N.E.2d 765 (2003).  Facts and opinions which form the basis of the expert’s opinion but

which are not disclosed on direct examination may be developed on

cross-examination.  Neal v. Nimmagadda, 279 Ill. App. 3d 834, 665 N.E.2d 424 (1996).  The cross-examination of a witness may also

elicit, emphasize or otherwise call the fact finder’s attention to

facts or opinions avoided or minimized on direct examination. 

Anderson, 338 Ill. App. 3d 685, 788 N.E.2d 765.

	On direct examination, counsel for Ferro specifically asked

Dr. Cusick if he was able to form an opinion at the time of

treatment as to the cause of Ferro’s pericardial effusion.  Dr.

Cusick responded that he was not.  On cross-examination, defense

counsel then asked Dr. Cusick to explain the possible causes of a

pericardial effusion and whether Dr. Cusick could state within a

reasonable degree of medical certainty if Ferro’s pericardial

effusion was caused by the accident.  Ferro’s attorney did not

object to these questions on cross-examination.  Thus, the issue as

to Dr. Cusick has been waived.  See Macinkevicius v. Zagorski, 172 Ill. App. 3d 303, 526 N.E.2d 569 (1988) (failure to object to testimony during trial barred appellate review).  

	However, even if an objection had been made, the cross-

examination of both Dr. Cusick and Dr. Veeragandham was within the

proper scope of cross-examination.  On direct examination, both

doctors answered questions regarding their diagnosis and treatment

of plaintiff before and after the accident.  Both doctors were also

asked to explain a pericardial effusion and its effect on the

heart.  Dr. Cusick was further asked if he had an opinion as to the

cause of plaintiff’s second pericardial effusion.  On cross-

examination, questions regarding possible causes of the effusion

were based the doctors’ treatment of plaintiff.  The questions were

used to elicit and emphasize opinions stated during direct

examination.  The questions further developed the complex medical

circumstances lying within the doctors’ knowledge.  Accordingly,

questioning whether the doctors had an opinion as to the cause of

Ferro’s condition was within the proper scope of cross-examination. 

  	 IV.

	Directed Verdict or Judgment Notwithstanding the Verdict. 

	Next, Ferro argues that the trial court erred in not directing

a verdict on liability or, in the alternative, granting judgment

notwithstanding the verdict.  

	Directed verdicts and judgments notwithstanding the verdict

should be entered only in those cases in which all of the evidence,

viewed in the light most favorable to the opponent, so

overwhelmingly favors the movant that no contrary verdict based on

that evidence could ever stand.  Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 229 N.E.2d 504 (1967).  In making this assessment, a reviewing court may not substitute its judgment for

the jury’s, nor may it reweigh the evidence or determine the

credibility of the witnesses.  Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63, 767 N.E.2d 314 (2002).  We apply the de novo standard of review to the trial court’s denial of a motion for directed verdict as well as its denial of a motion for judgment

notwithstanding the verdict.  Donaldson, 199 Ill. 2d 63, 767 N.E.2d 314; Gathings v. Muscadin, 318 Ill. App. 3d 1091, 743 N.E.2d 659 (2001).     

	In this case, there is sufficient evidence to sustain the

jury’s decision.  Although Ferro contends that his second

pericardial effusion was caused by the blunt force trauma he

sustained in the accident after being struck by the oxygen tank,

there was ample evidence from which the jury could have concluded

otherwise.  Griffiths testified that she was not accelerating when

she struck Hennis’ van and that she was traveling less than five

miles per hour.  Dr. Dolehide, Dr. Cusick and Dr. Veeragandham

testified that Ferro was recuperating from open heart surgery and

had suffered a prior pericardial effusion only one week earlier. 

Dr. Veeragandham stated that a second pericardial effusion could

have developed between the first and second surgery absent any

trauma.  Thus, the trial court properly denied Ferro’s motions for

directed verdict and for judgment notwithstanding the verdict.

	V.

	Failure to Exclude Certain Jurors

	Ferro argues that he was denied a fair trial because the trial

court failed to exclude jurors from the jury pool who were "against

lawsuits in general."  

	Prior to voir dire, the prospective jurors completed an interview form.  One of the questions on that form asked the jurors

if they were "against lawsuits in general."  Ferro claims that

eight of the thirty jurors in the venire answered the question in

the affirmative and that allowing those jurors to remain was

reversible error.  However, Ferro has failed to provide an adequate

record of this issue on review.  See Foutch v. O’Bryant, 99 Ill. 2d 389, 459 N.E.2d 958 (1984) (plaintiff bears burden of presenting a

sufficiently complete record to support claim of error).  The

questionnaire has not been included.  The voir dire proceedings have not been included.  Plaintiff cannot state with certainty how

many of those eight jurors, if any, actually served on the jury. 

Without any memorialization of the jury selection process, we must

presume that the jury was properly impaneled.  Cf. Reeves v. Brno, Inc., 138 Ill. App. 3d 861, 486 N.E.2d 405 (1985) (reviewing court presumed trial court’s ruling during closing argument was correct

where appellant failed to provide transcript of closing argument). 

    	VI.

	Trial Court’s Questioning of Dr. Dolehide

	In his final argument in this appeal, Ferro maintains that the

trial court gave undue weight to certain testimony by questioning

Dr. Dolehide from the bench.  He argues that the court posed two

questions to the doctor which discredited the witness and swayed the jury in favor of Griffiths’ position.

	The trial judge has the right to question a witness to

enlighten himself as well as the jury on issues material to the

case that may seem obscure.  People v. Falaster, 173 Ill. 2d 220, 670 N.E.2d 624 (1996).  It is improper for the judge to assume the

role of an advocate or suggest through those questions an opinion

as to the credibility of the case.  Falaster, 173 Ill. 2d 220, 670 N.E.2d 624.  The appropriate scope of questioning by the court

depends on the facts and circumstances of the case and lies largely

within the trial judge’s discretion.  People v. Williams, 173 Ill. 2d 48, 670 N.E.2d 638 (1996).

	In this case, the trial judge did not abuse his discretion by

asking Dr. Dolehide the questions.  The brief inquiry helped

clarify a matter that the judge found to be somewhat confusing and

obscure.  The judge did not indicate by his questions or his

comments any view on the facts of the case or the credibility of

the witness.  The questions posed to the doctor clarified a point

that the judge believed had not been fully addressed by his

testimony.  We cannot say that the questions resulted in an abuse

of discretion. 

			VI	I.  Sanctions

	In a separate appeal (No. 3-04-0007), Ferro argues that the

trial court erred in entering sanctions for fees against him when

Griffiths was only given leave to file a motion for costs.

	Prior to trial, Griffiths filed a motion for sanctions

pursuant to Supreme Court Rule 219(c) (166 Ill. 2d 219(c)), involving the evidence deposition of Dr. Cusick.  The trial court

granted the motion and ordered defendant to file an affidavit in

support of her motion for costs and to re-notice the motion.  No

evidentiary hearing was held, and the trial court did not provide

a written basis for its findings.

	Following a verdict in her favor, Griffiths moved for costs

pursuant to section 5-109 of the Code of Civil Procedure (735 ILCS

5/5-109 (West 2002)).  Her claim for costs included $270 for the

appearance and jury demand and $1,365 for fees in connection with

the previously filed motion for sanctions.  The trial court granted

the motion and awarded Griffiths fees and costs totaling $1,635. 

	Rule 219(c) provides a range of sanctions a court may impose

when a party fails to comply with discovery.  166 Ill. 2d R.

219(c).  The decision to impose sanctions is within the sound

discretion of the trial court.  Nationwide Mutual Insurance Co. v. Kogut, 354 Ill. App. 3d 1, 819 N.E.2d 1127 (2004).  However, such deference is predicated on the necessary requirement that the trial

court make explicit factual findings on which a court of review may

make an informed decision.  In re Estate of Smith, 201 Ill. App. 3d 1005, 559 N.E.2d 571 (1990).  Rule 219(c) directs that where a

sanction is imposed the court "shall set forth with specificity the

reasons and basis of any sanction so imposed either in the judgment

order itself or in a separate written order."  166 Ill. 2d R.

219(c); see also Chabowski v. Vacation Village Association, 291 Ill. App. 3d 525, 690 N.E.2d 115 (1997) (trial court is required to

give specific reasons for imposing Rule 219(c) discovery violation sanctions).  This reading of Rule 219(c) is consistent with our

treatment of sanction orders in other contexts, including

proceedings for sanctions under Rule 137.  166 Ill. 2d R. 137;

Bertuli v. Gaull, 215 Ill. App. 3d 603, 574 N.E.2d 1390 (1991) (sanction order vacated where trial court failed to provide factual

basis in support of its decision).  

	In this case, although the trial court undoubtedly had reasons

for its decision, it failed to express those reasons as required by

Rule 219(c).  Furthermore, nothing in the record indicates

defendant filed a subsequent request asking the judge to set forth

with specificity her reasons for the imposed sanctions. 

Accordingly, the sanction order of the circuit court assessing

costs and fees against plaintiff is vacated.   

	[The preceding material is nonpublishable under Supreme Court Rule 23.]

		CONCLUSION

	The judgment of the circuit court of Will County entered in

favor of Griffiths is affirmed.  The sanction order awarding costs and fees is vacated.

	No. 3-03-0943 -- Affirmed.

	No. 3-04-0007 -- Vacated.

	MCDADE, J., concurring and HOLDRIDGE, J., dissenting.

Case No. 3--03--0943 (cons. w/3--04--0007) -- Ferro v. Griffiths

Justice Holdridge, dissenting:

	I would find that the trial court abused its discretion in

allowing the defendant to offer into evidence photographs of the

damage to the vehicles without expert testimony to show a

correlation between lack of damage to the vehicles and injury to

the plaintiff.  As the majority notes, whether to admit photographs

is within the discretion of the trial court.  DiCosola v. Bowman, 342 Ill. App. 3d 530 (2003).  I agree with the majority’s finding

that there is no rigid rule that proscribes the admission of

photographs without an expert.          However, I am also mindful

of the DiCosola court’s concern that a jury not be allowed to engage in "unguided speculation" when invited by a party to "infer"

that there is a correlation between the extent of vehicular damage

and the extent of personal injuries.  The DiCosola court, based upon its own research, noted this concern articulated by the

Delaware Supreme Court:

"In Davis v. Maute, 770 A.2d 36 (Del. 2001) 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 injury 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.  The Davis court decided that ‘[a]bsent such 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.’

Davis, 770 A.2d at 40."  DiCosola, 342 Ill. App. 3d at 537-38.

	Here, the defendant sought admission of the photographs in

order to invite the jury to infer from lack of damage to the

vehicles that the impact was too light to cause the plaintiff’s

injuries.  In closing argument, defense counsel addressed the jury

as follows:

"But look at the impact to the car.  You guys

have -- half of you have seen accidents lite

this every day.  Minor fender benders, the

ones that are in parking lots where it hits

somebody, particularly a small car and a big

van, it is not going to move it -- Not only pictures show a minor impact * * * So what

physically in your own common sense could

possibly ram that [tank] into his chest." 

	Defense counsel asked the jury to engage in exactly the king

of "unguided speculation" against which the DiCosola court warned.     

	I disagree with the majority’s characterization of this

question as "close."  The only reason for the admission of the

photographs was to support the argument that lack of damage to the

vehicles supports and inference that the impact did not cause the

plaintiff’s physical injuries.  As the DiCosola court points, without expert testimony to establish such an inference, the jury

would be left to engage in unguided speculation. 

	Likewise, it was also improper to admit the photographs to

rebut the plaintiff’s testimony that the impact of the collision

was "very heavy."  Again, the DiCosola court addressed the same contention"

"In addition, the Davis court addressed the argument, similar to that presented by

defendant to the trial court in the instant

case, that the photographs of the minimal

damage to the plaintiff’s vehicle were

admissible to support a commonsense inference

that the plaintiff’s complaints were not

credible.  The court held that counsel could

not rely upon photographs of the vehicle(s) involved to accomplish indirectly what the

court had already determined to be an improper

argument. Davis, 770 A.2d at 41."  DiCosola, 342 Ill. App. 3d at 538. 

	I agree.  The defendant should not be allowed to invite

unguided speculation under the guise of attacking the plaintiff’s

credibility.

	I see no relevance of the photographs in the instant matter

other than to advance the theory that the light damage to the

vehicles translate into no injury to the plaintiff.  Such an

argument could only be made by way of expert testimony as to the

effect of degrees of impact upon the human body.  

	I would find that the trial court abused its discretion in

allowing the photographs into evidence and allowing the argument

therefrom that the plaintiff’s injuries could not have been caused

by the impact from the collision.  Because the question of

causation of the plaintiff’s injuries was the essential element in

conflict, I would find that the photographs and the argument

therefrom worked a prejudice upon the plaintiff.  I would therefore

reverse the judgment of the circuit court and remand the matter for

a new trial.

	As I would remand on this issue, I would not reach the other

issues raised in this appeal.