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Rule 23 order filed NO. 5-05-0545 March 6, 2007; Motion to publish gran

ted IN T HE April 10, 2007. AP PEL LA TE C OU RT OF ILLIN OIS FIF TH DIST RICT

________________________________________________________________________ SCOTT JACKS ON, ) Appeal from the ) Circui t Court of Plaintiff-A ppella nt, ) M ad iso n C ou nt y. ) v. ) No. 03-L-2011 ) DAVID W. S EIB, ) Ho nora ble ) Phillip J. Kardis, Defendant-Appell ee. ) Judge, presi ding.

________________________________________________________________________ JUS TIC E S PO M ER delive red the opin ion o f the c ourt: The plaintiff , Scott Ja ckso n, app eals fro m th e o rder of t he circ uit cour

t of Madison Co unty that e ntered a

j ud gm en t fo r t he de fe nd an t , Da vi d W. Seib , pursu ant to a jury verd ict. The plaintiff

rais es numerous i ssues on appea l, whic h we restat e as follows: (1) whether the circuit court erred in d enying the plaintiff's requests fo r a directed verd ict , a j udgment notwiths tandingthe ve rdict ( n.o.v . ), or a new tria l on the i ssue of th e d ef en da nt 's neglige nce, (2) whetherthe ci rcuit

court er red in all ow in g t he ad m iss io n o f p ho to gr ap hs of th e p lai nt iff's vehic le follow ing the accid ent, (3) w hethe r the circ uit co ur t er re d i n a llo w in g t he de fe nd an t's expe rts to tes tify

that, in their opini on, the plaintiff was not injured as a resu lt of t he defendantrear-e nding hi m , (4 ) w he th er th e c irc ui t co ur t er re d i n e xc lu di ng th e p lai nt iff's demonstrative evidence as a sancti on for a dis covery violation, ( 5) whetherthe circuit court erredin deny ing the pl ainti ff's proposed j uryinstructi on on an in cr ea se d r isk of fu tu re in ju ry, and (6) whether

the ci rcuit

court er red in admi tting the te sti mony of the i nvesti gatingofficer, who had no independent recoll ecti on of

the acciden t. For the follow ing reason s, we affirm the jud gm ent en tered b y the circu it court.

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The facts necess ary for o ur disp osition of this appeal ar e as foll ows. On December 11, 200 3, the p laintiff, S cott Jac kson , filed a c om plaint in the circ uit c ourt of Madison C ou nt y, alle g ing tha t th e defendant, David Seib, was negligent when he rear-ende d the plaintiff, causing the pla inti ff various personalinjuries and l ost wages. The case was tried to a ju ry of 1 2, be gin nin g on Jun e 20 , 200 5. The plaintiff was the f

irst to tes tify in his case in c hief. He testi fied that he had been ata dead stop f

or 20 to 30 seconds in a traffic j am on Inter stat e 270 in his 1998 Mitsubishi Gallant when the defendant rear-ende d him, pushing him int o the v ehicl e in fr ont of h im. Upon impacthe was launched for ward due to an appa rent fa ilure of his sea t belt, pu lling his left arm. In additio n, he te stified th at a part of his head str uck the windshi eld and that he experie nced a he ada che and dizz ines s im me diate ly follo win g th e ac cide nt. However, he did not requ est an a mb ulanc e. Instea d, he w aited for his w if e to pick him u p and drive h im to th e eme rg enc yro om. According to the pl ainti ff, whil e at the emergency room, he was dia gnosed with a concussi on and a cervi cal neck s prain. In the weeks fo llowing the a ccident , he began expe riencin g mem ory loss, sexual dy sfuncti on, an i nability to concent

rate, massive headaches, blurry visi on, and nausea . He also t esti fied that he hadleft shoulder pain and that his left sho ulder s tarted ro tating o ut of s ocke t. The plaintiff testified th at due t o these symp tom s, he wa s un able to w ork for app rox ima tely tw o m ont hs. The plaintiff

underwent a shor

t peri od of phys icaltherapy ata fac ility he referre d to
as MEC CA. The plaint iff expl ained that al though he tol d his phy sicaltherapi st t wo weeks after the acci dent that he had spl it l ogs, he had us ed a log-s plit ting machi ne with ass ist ance from his fath er-in-law . He a lso pa rticipated in exte nsive treatm ent wit h Associat ed Physicians. He visit ed Ass ociate d Ph ysicians ap prox imate ly 40 time s in a two-month peri od, accordi ng to his testimo ny. Asso ciated Physician s refe rred h im to an ophthal mologist and

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an orthopedi c surgeon. He also participatedin an independent medical exam with Dr. Bey er atthe defendant 's r eques t. The plaintiff expl ained that pri or to t he accident , he had been treat ed for depres siona nd anxiety and had be en prescribed Celexa, an anti depressant, and amitripty line, an an tia nx iet y medicati on. According to the pla inti ff, these medications helped him to sl eep. He als o had a previ ous right shoulder injur y whil e in col lege. According to the plaintiff' s testi mony, the memory loss he experi enced foll owing the accident was quite ext ensive. He testi fied t o severalspecifi c inst ances of extreme m emory loss. For example, he test ifie d that he forgot hi s daughter 's name, that he forgot t

hat he had
a dog , and th at, on o ne oc casion , he le ft his v ehi cl e runn in g i n the p arki ng l otof aHome De pot and wa lked a m ile an d a h alf to his d octo r's office

. The plaintiff

also d escrib ed a s ubse quen t accid ent in 2 003 in which he rear -ended a veh icle

. Howe ve r, th e p la inti ff as se rt edth at

he was not

in jure d i n thi s a cc id en t. He attributed

one v isit to Associat ed Physi cians t o this accident and testified that he return ed to
w or k i m m ed iat ely. On cross- examinati on, the defendant pr esented a seri es of photogr aphs to t he plaintiff and asked him if

they fairly and ac curate ly

portr ayed t

he condition of his vehicle as aresult of the ac ciden t. The plaintiff testified that he did n ot think so, bu t he w as imp each ed by his prior inconsi stent

stat ement in hi s deposition that they did. The pl ainti ff o bject ed to the photogr aphs being adm itted into e viden ce, ba sed o n the la ck of a fou ndatio n. Th e circu it
co urt ov er ru led th e o bj ec tio n, s tat in g t ha t th e f ou nd ati on w as su ff

ici en t b y w ay of th e admissi on in the de posit ion. The phot ographs, which depict extremely minor

damage to the plain tiff's v ehic le, w ere a dm itted into evid enc e. An nette Shirl ey, bill ing super visor and records custodian for Associated Physi cians, described the foundat ion of the medical bills. A ccording to Ms. Shirl ey, the bil ls, which total ed $15,978 , were reasonabl e and customar y. Robert Fast , an Associ ated Phy sici ans

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chiropr actor, test ifie d that t he plai ntiff

firs t vis ited

him on October 15, 2002. At that time, the plaintiff complained of neck pa in, he ada che, shoul der pain, dizzi ness, nausea, and
mem ory lo ss . He was d ia gno se d wi thpos tc onc uss io n sy ndr ome and placedon an extensive
mu lt idisciplinarytreat me nt p rog ram con sistin g of physi cal th erap y, c hirop ractic adjus tmen ts , tri ggerpoi nt in

jections, diagnostic an d therapeu tic ultrasounds, and the use of state-of-the-art MEDEX equipment. He was also refer red to anoph thalm olog ist, an orthopedi c surgeon, and
a neurologi st. The neurologi cal exam res ults were normal , reflecti ng no rm al m em or y, normal intellect, flu ent an d arti culat e speech, an d norm al visual acuity. Nevertheless, D r. Fast state d th at all th e trea tme nt w as re aso nab le an d ne ces sary. He al so testifie d that t he postconcus sionsyndrome was a res ult of the whipla sh and that

a concussi on can occur withoutimpact and at

low speed. The p la inti ff was discharged at maximum medical improvement on J anuary 24, 2003. TrooperAn drew Co nno r testified that he inves tigated the ac ciden t and ge nera ted a po lice repo rt. He te stified th at there wa s no v isible inju ry to either p arty and th at h e determi ned no am bulan ce w as ne cessa ry. Troop er Co nno r's investig ation re veale d that o nly two vehicl es had been i nvolved in t he accident. Th e defen dant w as ticketed for the failure to re du ce sp ee d t o a vo id a c ra sh . A cc or di ng to Tr oo pe r C on no r's t es tim on y, the pla inti ff was slowing in tr affic when he was struc k from the re ar. On cros s-examination by t he plai ntiff

, TrooperConnor test ifie d that he does not remember any thing r egarding the acci dent without loo kin g at th e po lice r epo rt. Dr. Fred Ginsberg, medical director of Associat ed Physi cians, test ifie d via a vi deo evidence deposit ion. Dr. Ginsberg desc ribed t he same facts as Dr. Fast with regard to the pl ain tif f's subjective complaints, the diagnosis of postconcussion syn drome, and t he pl ain tif f's treat me nt at A sso ciate d P hysicia ns. Dr. G insberg m irrored Dr. Fast' s opini on that wh ip lash can oc cur in a l ow-impact acci dent and that al l the t reatment of the pl ainti ff was

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reason able and necessar y. All the s ymptoms exhibited by the pla inti ff, i ncluding t he ins tances of extreme m emory loss, we re consistent w ith postconcu ssion syndrom e. In additi on, Dr. G insbe rg testifie d that p atients who are injur ed are pre disposed to future injury in the same areas of th e bo dy. D r. Gins berg tes tifi ed that he did not s ee the postaccident photos of the vehicles. The defendant commenced hi s case i n chief by intr oducing the testimony of D r. Craig Beyervi a a video evi dence deposi tion. Dr. Beyer is a board-certifie d orthopedi c sur geo n who had reviewed the plaintiff' s medical records, X ray s, and MRI films and also conduct ed
an indep ende nt me dical e xam of the plaintiff . Acc ordin g to Dr. Beyer, the his tory given by the plaintiff i n the emergency room was that t

he defendant was t

raveling 50 miles per

hour when he rear- ended the pl ainti ff. Dr. Bey er tes tifi ed that he reli ed on p hotograp hs of the vehic le with regard to the nature and s everit y of the impa ct bec ause that inform ation is crucia l to his opinion r egarding t he causalrelationship between the ac cident and the pl ain tif f's complaint s. Dr. Beyer t esti fied that, based on his education in biomechani cs and physics, itis cl ear from the photographs that t here was not a 50- mile-pe r-hour impact as the pl ai nt if f s ugg es te d i n the e mer gen cy ro om. Dr. Beyer c onducted an i ndependent medic al exam of the pla inti ff on March 8, 2005. Itwas his opini on that

the plaintiff's subjective com plaints regarding h is shoulder injury we re aty picaland that

any i nstabi lit

y of t he shoulder

was due to the plaint iff' s general ized ligament ous lax ity, which is not impacted by a single injury event. Acc ording to D r. Beyer,
a stre ngtheningof

th e m us cle s s ur ro un di ng th e s ho ul de r w ou ld co rre ct a ny i ns tab ilit y. Dr. B eye r's review of the plai ntiff 's MRI reveal ed mild rot ator- cuff tendinitis . He also pointed out that t

he emergency

room records reveal ed that the pla inti ff made no compl aint of shoulder pa in fo llo w in g t he ac cid en t. In ad di tio n, D r. B eye r's r ev iew of th e p lai nt iff's medical record s reve aled th at the p laintiff h ad told his phy sicaltherapi st at MEC CA that he

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had raked his yar d and cut and stacked fir ewood t wo w eeks aft er the a ccident . According to Dr. B eyer, that type o f activ ity was inc onsiste nt w ith an ac ut e s ho ul de r in ju ry. Dr. Beyer criticiz ed Dr. Shikar, wh o had diagn osed a labra l tear of the sh ould er, stating that it is hig hly inacc urate to diagnos e a signi ficant shoulder injur y wit h ultrasound. Dr. Beyer t esti fied that in his opi nion, wit

hin a rea sonable degr ee of medicalcerta inty , the plaintiff' s subjec tive
com plaints a nd th e con dition o f his sh ould er had no ca usal co nnec tion w ith the a ccide nt. Dr. K aren Pen tella, a n as sista nt p rof esso r of neu rolo gy at W ash ing ton Un iver sity, a ls o test ifie d on behalf of

the defen dant. Dr. Pentell a testifie d that s he had conducted a review of the pla intiff's m edica l record s at the re ques t o f the defen dant. With regar d to the emergency

room records , Dr. Pent ella test ifie d that t

here were no object ive fi ndings of head trauma. All the subsequent test ing of the plaintiff, including a CT scan of the brain, an X ray of the l eft sho ulder, a n M RI o f the b rain an d nec k, and an E EG , was norm al. Dr. P entella also noted that the history giv en by the plaintiff to his tr eati ng prov iders w as incr easing ly dramati c. According to Dr. Pentell a, any di agnosis of postconcus sionsyndrome was based
on subjective complaints onl y, with no obj ectiv e findi ngs. Dr. Pentell a noted that the plaintiff has p reexis ting is sues, including previous treat ment for anxi ety

and depress ion, which can cause headache and dizziness. Dr. P entella concluded, within a reasonable degree of medical certa inty , that the pl ainti ff did not have a concussi on. Dr. Pent ella cite d the la ck of impact and t

he lack of an alteration of consci ousness as a part of the basis for her opini ons.

With regard t o the pl ai ntiff 's s houlder compl aints , Dr. Pent ella test ifie d that a

shoulder
exam by a Dr. Stein af

ter t he accident

reveal ed that

the pla inti ff had a full range of motion. Also, her revi ew of

the MRI of the shoul derdid not r eveal a l abral t ear. Dr. Pentell a noted that further test ing had been r ecommended bu t neve r c on du cte d. I t w as D r. P en tel la's op in io n t ha t th e p lai nt iff di d n ot re qu ire sh ou ld er su rg er y.

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The defendant t esti fied on his own behalf, expla ining th at he h ad be en on his w ay to work on the morning of

the acci dent, in st op-and-go traffi c on Inter stat e 270 wes tb oun d. He contact ed the re ar

of th e p la inti ff

' s v eh ic le whe n he lo oke d do wn briefly t o reach a pack of cigare ttes . According to the defendant , he was dri ving at a speed of one t o three mi les per hour when the impactoccu rred. T he de fend ant testif ied tha t at the tim e of th e imp act he did not see the pl ainti ff fly

around in hi s car. After the accident , the re was no observab le injury to the p laint iff, a nd t he p laint iff s aid h e w as f ine. The only dam age to the de fend ant's veh icle
wa s a sli ght ly ben t licen se p late. JennyBur gne r, coo rd in at oratth e So uther n I ll in oi s Sl eep Dis or der Ce nter , te sti fied that six t o eight

weeks prior

to the a ccident

the plaintiff had been given an appoint ment for
an initial c onsult ation and snoring e valuat ion. His appointment was on October3, 200 2, only two days after

the acci dent. The records for that date show that

the pla inti ff made no
com plaints of pain anddid not menti on the acci dent at that a ppointment . He also ans wered
an exte nsiv e qu estio nna ire re gar din g hi s his tory. The plaintiff ret urned to t

he sleep di sorder center on N ovem ber 1 4, 200 2. A t that time , he did repo rt the ac ciden t and c om pla ine d of head and neck pai n. On rebu ttal, the pla intiff so ugh t to introd uce, a s dem onstra tiv e eviden ce, a model bumper from a 199 8 M itsubish i Galla nt. Th e defenda nt ob jected base d on the pla in tif f's failure to suppl ement disc ove ry resp ons es w ith th is ev iden ce. The circui t court sustained the defendant' s objection based on t he discover

y vi olati on. At the jury instructi on conference, juryinstruc tions o n the e leme nts of negli gence, pr oximate caus e, anddamages were agreed to by t he parti es. However, t

he plai ntiff

sought to introd uce Illinois Pattern Jury Inst ructions, Civil, No. 30.04.04 (2006), entit led "Increased Risk of Harm–C alculati on." The circu it court den ied th e pla intiff's ten der ed in struc tion

. On the last d ay of the tria l, t he plai nt iff fi led a moti on for a dir ected ver dict. The

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motion argued that the pl ainti ff was entitled to a judg men t a s a matte r of law regarding neglige nce, proximate cause, and damages. The ci rcuit court deni ed the pl ainti ff's motion, stat ing that t

he issue of

proximate cause is not such t hat it would be appropri ate for a direc ted verd ict. The plaintiff

then made an oralmotion for a dir ected ver dict on l iabil ity only . The circuit cour t denie d the m otion a s untim ely becau se the ju ry was a lready in delibe rations. The jury retur ned with a ver dict f

or the def

endant and against t

he plai ntiff

. On July 22, 2005, t

he plai ntiff

file d a postt

rialmotion for a d ir ected verd ict or a judgment n.o.v . or, in the al ternative, a new tria l. At ahearing he ld on August 18, 2005, the circuit co ur t d en ied th e p lai nt iff's postt rialmotion. On September 16, 2005, the pla inti ff file d
a no tice o f ap pea l. The first three arguments i n the pla inti ff's brief c an be combined into one argument that the circuit co urt erred in den ying his re ques ts for a directe d ver dict, a judg men t n.o.v . , or a new trial o n th e issu e of the d efe nda nt's n eglig enc e. The re are e stablish ed stan dard s to be used in dete rminin g w hethe r a direc ted ve rdict, a jud gm ent n.o.v . , or a ne w trial shoul d be gr ante d. Map le v. Gustafson , 151 Ill. 2d 445, 45 3 (1992 ). A directed v erdict or a judgment n.o.v . is pro per ly ente red in th ose limite d ca ses w her e all th e ev iden ce, w he n view ed in its a spec t mos t favo rable to the oppone nt, s o overwhelmingl y favor s the movant that no con traryverdict

based on that

evid enc e co uld eve r stan d. M aple , 151 Il l. 2d at 453. In ruli ng on a mo tion fo r a direc ted ve rdict or a judg men t n.o.v . , a court does not weigh t he evidence, nor is it co ncern ed w ith the c redibility of w itnesse s; rather, it m ay only consider the evidence, and a ny infere nces theref rom , in the li ght most favorable t o the part y r esisting the mo tion

. Maple , 151 Il l. 2d at 453. Als o, a j udgment n.o .v. may no t be gra nted m erely because a verd ict is aga inst th e m anifest w eigh t of th e ev iden ce. M aple , 151 Il l. 2d

at 453. We apply

the de novo standar d of revie w to the trial c ourt' s denialof a motion for a direc ted verdict , as wellas it s denialof a ju dgm ent n.o.v . Moss v. Am ira , 356 Il l. App. 3d 701, 705

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(20 05)

. In contras t, on amotion for a new trial , a court

will weigh t

he evidence and set as ide the ve rdict

and order a ne w trialif the verdict is cont rary to the mani fest weight of the evidence. Maple , 151 Ill . 2d at 454. A verdict

is against the manifest

weight of

the evi dence whe re the op posite resul t is clear ly evident or where the findings of t he jury are unrea sonable,
ar bi tra ry, and not bas ed o n th e ev iden ce. M aple , 151 Il l. 2d

at 4 54. A court' s ruling on a motion for a new tria l willnot be reve rsed except in thos e instan ces w here it is a ffirm atively sh own that it clea rly abuse d its disc retio n. M aple , 151 Il l. 2d at 455. I n determi ning whether the trial court abused its discre t io n, t he re vi ew in g c ou rt s ho ul d c on sid er w he th er th e ju ry's verdict was supported by

the evi dence and w hethe r the los ing p arty was denie d a fa ir trial. Maple , 151 Il l. 2d at 455. Aftercareful ly

reviewing t

he evidence a dduced atthe tr ial as se t f orthab ove , w e cannot fi nd that t

he findings of the j urywere unreasonabl e, arbit rary , and not

based on the evid enc e. The jury

in thi s case heard confli ctingtest imony r egarding what , if any, injuries the plaintiff had sus taine d as a resul t of the accident in question. The cr edibil ity issues in the tri al were especi ally

signi ficant

in li ght of the subjective nat ure of the plainti ff's complaints, the photographi c evidence s howing the minor nature of the impact, and Dr. Pen tella's and Dr. B eye r's findings . Whet her a concus sion could occur with little or no impact was also contest ed. The ques tion of wh om to belie ve an d w hat w eight to be given t o all t he evidence
wa s a d ecis ion for the tr ier o f fa ct. E ven as suming that

the defendant

admitt ed breachi ng the st andard of car e when he lookeddown briefly

to locate his pack of

cigare ttes , the motion for a direct ed verdic t that

the plaintiff filed prior t o submitting the inst ructions to th e ju ry w as dir ected t oward all t he elements, including p roximate ca use and dama ges, wh ich we re clear ly atissue. In addition, the pla inti ff

agreed to instruct ing the jury on these issues. The p laintiff's oral motion for a

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direct ed verdict

on t he issue of liabi lit y onl y was cl early

untimel y, because the jury had begun delibe rating. For al l thes e reasons , we cannot say t hat the circuit court e rred in denying the pla intiff's req uests for a d irected verd ict, a judg men t n.o.v . , or a ne w trial. We also decl ine the plaintiff' s invi tati on to fashi on a rule ba sed upon public pol icy that perm its the pla inti ff to rec over for al l medicaltest ing reas onably relat ed to the events at

issue regardless of w hethe r the testin g rev eals an injury. Th at rule w ould be co ntrary to ou r pub lic policy an d w ell -e sta bl ish ed pr in cip les of ne gl ig en ce , w hi ch re qu ire a b re ac h o f d ut y, causati on, and damages before a pe rson can be hel d liabl e for the medical expe nses of another as a resu lt of a n ac cide nt. S ee, e.g. , McLean v. Rockford CountryClub , 352 Il l. App. 3d 229, 232-33 ( 2004) (ci ting Ward v. K mart Corp. , 136 Ill. 2d 132 , 140 (19 90) ). The plaintiff next

argues t hat the circuit c ourt er

red in admi tting into evi dence the photographs of the plaintiff' s vehic le following the accident . Speci fical ly , the plaintiff argue s that there was an ins uffic ient fo und ation for the a dm ission o f the p hoto grap hs into evidence, that the photographs were not pr obative of any i ssue i n the c ase, tha t it was e rrone ous to adm itthe photographs int o eviden ce as probat ive of the speed of the impact, and that the prejudi cialnature of

the photographs outweighs anyprobati ve value. It i s the function of the tri al co urt to de termin e the a dm issibility of ev idenc e, and its rulings will no t be dis turbe d absentan a bus e of

disc retio n. Independent Trust Corp. v. Hurwick , 351 Il l. App. 3d 941, 952 (20 04)

. With regard t o the la ck of a foundati on, the plaintiff argues t hat the photographs were not takenby any

witness who te sti fied at the trial and that t

he defendant never

identi fied who had taken t

he photographs so that

the plaintiff coul d depose the photographer t o chall enge the photos and wh at the y dep icted

. Ho we ver, the plaintiff cites no autho rity in supp ort of h is content ion that s uch ident ific ationis re quired. The plaintiff admit ted in his deposit ion that the photog raphs fairly and acc ura t ely portrayed the co ndition of h is veh icle afte r the ac ciden t.

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Although he att empted to backt rack from this t esti mony at the trial, the pla intiff w as pro perly impeachedwith his prior inconsi stent

stat ement. We cannot s ay t he circuit court

abused its discr etionwhen it det ermined that the pr io r a dmi ssion by the pla inti ff was a suffic ient foundation for the photographs. The plaintiff

also cla ims it was improper and hi ghly prejudi cialto all ow the defendant to offe r into evidence phot ographs showing l ittle damage to t he plaintiff' s vehicl e. He argues thatexpe rt testimo ny is requ ired to s how a corre lation b etwe en the lack o f dam age to th e pl ain tif f's vehicl e and an injur

y t o the pla inti ff, ci ting DiCosola v. Bowman , 342 Il l. App. 3d 530 (2003). As explained in the later ca se of Ferro v. Gri ffi ths , 361 Ill. A pp. 3 d 738, 742 (2005), in DiC osola , the trial co urt gra nted th e plain tif f 's mot ion in limine to exclude photographs of the lack o f dam age to the vehicles, and on revie w, the appel late court found that thi s ruling was n ot an abu se o f dis creti on. DiC osola , 342 Il l. App. 3d at 537. The appe llate court r eject ed the notion t hat such pi ctures must alway s be all owed or, on t he other hand, that

expe rt testimo ny is alw ays ne ces sary fo r the pho tog rap hs to be a dm issib le. Ferro , 361 Ill . App. 3dat 743. The court r efused to a dopt a ri gid rul e that proscribes the admi ssion of pictu res in to ev iden ce w itho ut an exp ert. Ferro , 361 Ill. Ap p. 3d at 743. The crit ical questi on in adm itting thes e pho tograp hs into evide nce is w hethe r the jury ca n pro perly relate the vehicul ar damage depic ted in t he pict ures t o the inj ur y witho ut th e aid o f an e xper t. Ferro , 361 Ill. App. 3d at 743. This i s an evidentiary question that t

he trial j udge must
reso lve. Ferro , 361 Il l. App. 3d at 743. In this case, Dr. Beyer

test ifie d that he has been educat ed in both bi omechanics and physi cs. Dr. Beyer t esti fied that he re lied on photographs of the vehic le with regard t o the nature and severi ty

of the i mpact because t

hat inf ormationis cr

ucialto his opinionregarding the causal r elat ionship between the ac cident and the pl ainti ff's complai n ts. Dr. Beyer test ifie d that, bas ed on his ed ucatio n in biomecha nics and phy sics, it i s clear from the

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photographs that t

her e was n ot a 50-mil e-per- hour impact as the pl ainti ff suggest ed in the
eme rge ncyroom. However, even as suming that Dr. Beyer

was not quali fied t o give an expert opinion r egarding the severity of the impact

based on the photographs, we cannot say that the trial cou rt abus ed its discr etion by admitt ing the photographs i nto evide nce without expert tes tim on y. A review of the photographs reveal s that it was cl ear that the pl ainti ff was not rear- ended at any

where nearthe speed

he sugg ested. Un der these fac ts, the circuit court could prop erly have found that the pic tures , by

themselve s, were r elevant to prove t

hat the matter at is sue was "more or l ess probabl e." See Ferro , 361 Il l. App. 3d at 743. The plaintiff next argu es that the circ ui t court e rred in allow ing the defe ndan t's exper ts to test ify that, in their opini on, the plaintiff was notinjured as aresult of the defendan t rearending him. T he de cision w hethe r to adm it expe rt testimo ny is with in the sound di scret ion of the trial co urt, and a ruling will not be revers ed absentan a bus e of that d iscre tion

. Snelson
v. Kamm , 204 Il l. 2d

1, 24 ( 200 3). Th e plain tiff m akes seve ral argu men ts with respe ct to this issue, many of which ar e notsupp orted b y citation to authori ty . Fir st, the pla inti ff argues t hat the defendant fai led to e stabl ish that Dr. Bey er' s and Dr. Pent ella 's opinions wer e within a
reaso nable deg ree o f m edic al or scie ntifi c ce rtain ty. A close reading of the reco rd reflec ts that both exp erts s o tes tified

. Second, the plai ntiff argues, without citati on to authority , that the defe ndan t's exper ts' opinio ns w ere no t supp orted b y the me dical re cord s, did not refl ect
a review of al l the e vidence, and improperly i nvaded the pr ovince of t he jury . It

has been sett ledfor some ti me that exper t opini on tes timonyon a n ultimate fact or iss ue does not impe rmissib lyintr

ude on th e f

ac t fi nd er 's role, as long as all of the othe r requi rements for the admissi on of th e tes timo ny are me t. Zavala v. Powermatic, Inc. , 167 Ill. 2d 542, 54 5 (1995 ). The reason for

this is that the tri er of fact is not requir ed to accept

the expert's conclusi on. Zav ala , 167 Ill. 2d at 54 5. In addition, fa cts, data, and opinions that f orm the basi s of the expert' s opini on may

### 13

be developedupo n cr oss -ex am inati on. Piano v. Davis on , 157 Ill. App . 3d 649, 67 1 (1987 ). There is a heavy burden on the cross-examiner to expose any weakness inheren t in t he
ex pe rt's opin ion, bu t this bu rden is not ex cessiv e in lig h t of Il linoi s's extensi ve pretrial discovery pro ced ure s. Piano , 157 Il l. App. 3d at 671 (citing Wilson v. Clark , 84 Il l. 2d 186 (1981)). Great liberali ty s hould be allowed an expert in determining the basis o f hi s opinions, and the weight to be given an opi nion is for the t rier of fac t. Piano , 157 Il l. App. 3d at 671 (citing Melecosky v. McCarthy Brothers Co. , 115 I ll. 2d 209 (1986)). In thi s case, the plaintiff hadthe op portu nity to and did in fac t cross-e xam ine the defe ndan t's exper ts with regard to which evi dence they had consider ed and which medicalrecords were inconsi stent with th ei r o pi ni on. Acc or di ngly , w e rejec t the pl ainti ff's arguments t hat the opinions of

the de fe nd an t's experts were based on ina d eq uate i nformati on and improperly i nvaded the pr ov in ce of

th e ju ry. The plaintiff' s thi rd argument wit h respect to the i ssue of

whether the tri al court er red in admitt ing the de fendant' s expert s' opinions that the plaintiff was not inju red as a resu ltof the accident

is that the ir t esti mony concer ning the force of

the impact

lacked t he foundati on requir ed for n ovel s cientific evide nce. Illino is adheres t o the "general acc eptance" stan dard establ ishedin Frye v. United States , 293 F. 1013, 1014 (D.C. Cir. 1923), for the admiss ion of novel sci entif

ic evi dence. In re Commitment of Simons , 213 Ill. 2d 523, 52 9-30 (20 04). In itia lly, we note th at the p laintif f never made any obj ecti on to the f oundation of

the de fe nd an t's expert test imony as novel sci entif ic evi dence and ne ver reque sted an evid entiary Frye hea ring before the c ircu it cou rt. Accordingly , thi s iss ue was forfeit ed. See Snelson v. Kamm , 204 Ill. 2d 1, 25 (20 03). Even if the plaintiff had prope rly preser ved the Frye issue, we find that the de fe nd an t's experts' opinions were not subje ct to the Frye standar d because they di d not const itut e novel scientif ic evidence. The trial court 's Frye analy sis i s subjec t to de novo re view

. In re

### 14

Comm itment

of Simons , 213 I ll. 2d at 5 31. In cond ucting that de novo review, we may consider not only

the trial c ourt r ecord but a lso, where appropri ate, sou rces o utsi de the record. In re Commitment of Simons , 213 Il l. 2d at 531. Although Ill inois has not adopt ed the standard enunciat ed in Daubert v. Merrell Dow Pharmaceutical s, I nc. , 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993), for the admissi on of scientific opinion t esti mony, t he Supreme Cou rt ' s d is cu ss io n r eg ar di ng w h at cons titutes "sc ientific k now ledge " can still inform our analy sis of

what consti tutes scientific opinion t esti mony. See Ha rris v. C ropm ate Co. , 302 Ill. A pp. 3 d 36 4, 36 9 (1 999 ). To qualif y as "scie ntifi c knowledge," an infere nce or assertion must be derive d fro m th e sc ienti fic m etho d. Daubert , 509 U.S. at 590, 125 L. Ed. 2d at 481, 113 S. Ct. at 2795 . A scientific exp ert is an expert who relies on the appl icat ion of scientifi c principles, rather than on skillor experienced-based observations, for the basis of h is op inio n. Ha rris , 302 Il l. App. 3d at 369. Although the defendant 's e xperts ' opi nions that the plaintiff was not injured as a result of t he accident

relat e to sci ence, t

heir t esti mony escape s the Frye analysis b ecau se it repre sents nothing more t hat the experts ' experience and obs ervati ons, combine d with a deducti ve process famili ar to t he average t

rier of fact. See Ha rris , 302 Il l. App. 3d at 370. This is the case e ven if a di fferent expert mi ght have re ached the s ame or a different conclusi on using some spec ific , advanced s cient ific techni que, such as that of the biomedi cal engineer the pla inti ff refer s us to in Whiting v. Coul trip , 324 I ll. App. 3d 161 (2001). See Harr is , 302 Ill . App. 3d at 370. Thus, t

he need for t

he tri al court

to provi de a pr elimi nar y screening to protect

against the natura l inclinatio n of the jury to a ssign s ignific ant w eight to the scientific techni ques does not exis t. See Ha rris , 302 Il l. App. 3d at 370. Simply because scientif ic principles relate to aspects of an opini on witnes s's testimony does not transfo rm that test imony into "sci entif ic" test imony. See Ha rris , 302 I ll. A pp . 3d at 3 70 . A cc or di ng ly, the causation t esti mony of the defendant' s expert s did not consti tute " scientific " evidence

.

### 15

Even assuming t

hat the methods em ploy ed by the defendant 's e xperts consti tuted scientif ic methods and thus fellwithin t he real m of "sci ent ific" evidence, we nonetheless conclude that t

hese methods were not

"novel. " Neither

expert pur

ported t o have rel ied upon
som e " '[s]trikingly new, unusua l, or d if fer ent ' " me thod (Ha rris , 302 Il l. App. 3d at 372 (quoti ng American Herit age Dicti onary of the Engli sh Language 898 (1975)) ) in r ea ch ing his or her opi nion. Unlike the expe rt in Whiting , who present ed a biomechani cal analysi s of the forces pr es en t in th e a cc id en t, th e d ef en da nt 's experts in thi s case pr esented t heir opinions bas ed on th eir obs ervatio ns an d pas t expe rience s as do ctors. W hile the appe llate cou rt in Whiting found no cases i n Ill inois and less than a handfulof cases nationwide in whic h the adm issibility of

the testimony of a biomedical engineer was considered, Illinoi s case law is replete with physi cians who have t esti fied, based on obser vation and experie nce, re garding their opinion of whether a cl aimant was i njured. For all these reaso ns, the c ircuit co urt did not err wh en it ad mitted the de fend ant's exp erts' testimo ny that, in their opini on, the plaintiff
wa s not in

jured a s a resu lt of the accid ent. We next addre ss the p lainti ff's a rgum ent tha t the circu it court e rred in refus ing to admit as de monstrat ive evi dence a bumper from the same type of vehi cle as t hat which the plaintiff w as dr iv in g d ue to th e p lai nt iff's failure to pro duce this evid ence in discover y. The admissi on of evidence, as we ll as the dec isi on to sanction a part y for a discover

y vi olati on, is within the c ircui t court 's di scret ion, and the court ’s rul ing will not be revers ed absentan abuse of d iscre tion

. Clay ton v. C oun ty of Cook , 346 Il l. App. 3d 367, 377 (2003) (c iting Gill
v. Foster , 157 Ill. 2d 304, 31 2-13 (19 93)). An a buse of discretion ma y be found only where
no reasonabl e person would t ake the vie w ado pted by the circu it cou rt. Clayton , 346 I ll. App. 3d at 377. Ill inois Supreme Court rul es on discover y ar e manda tory rules of proc edure subject to strict compliance by the par ties. Clayton , 346 Il l. App. 3d at 377. Parti es have a duty to seasonably supplement or amend prior answers or responses whenever new or

### 16

additi onal evidence or

informat ion sub sequently becomes known to t hat part y. 166 Ill . 2d R. 2 14. The plaintiff does not contest that t he defendant' s request s fo r product ion encompassedthe demonstrative evi dence at i ssue or t hat he fai led to produce the bumper at the tria l. T he pl ain tif

f s im pl y ar gues that

the trial c ourt' s sanct ion in r efusing t o admit t he evidence was an abuse of dis creti on. The fact ors used by reviewing c ourts to determi ne whetherto strike an undiscl osed witnes s's test imony as a sancti on fora viola tion of Illinois Sup reme Co urt R ule 21 3 (17 7 Ill. 2d R. 213) are instruc tive. These are: (1) sur prise to the adverse pa rty, (2) the prejudi cialeffect of t he evidence, (3) the nature of the evi dence, ( 4) the dili gence of the adver se part y, (5) whether

the obje ction to the evi dence was timel y, and (6) the good fai th of

the par ty callin g th e w itnes s. Clayton , 346 Il l. App. 3d at 380. Applying these factor s to the case at bar, we conclude that

the pla inti ff att empted to i ntroduce t he model bumper as dem onstrative evidence of the severi ty of t he impact required to cause damage to it , which was a centr al is sue in t he case. The defendant had not been informed of the plaintiff' s int ent to introduce this ty pe of evidence until t

he tri al had al ready

commenced. The defe ndan t mad e a tim ely objec tion to th e evid ence , and th e plain tiff ga ve no goo d-faith explanat ion for his fail ure to pr oduce the bumper prior t o the trial. Under these circumstances, we cann ot say that th e circu it court a buse d its disc retion in refus ing to a dm it the bumper i nto evide nce as a sanc tion for the pla inti ff's discover

y vi olati on. Ne xt, the pla inti ff argues t hat the circuit court

erred when it refused to instruct the jury
on an increased risk of future inju ryas currently set forth in Il linois Patt ern Jury I nstructions, Civil, Nos. 30.04. 03 and 30.04. 04 (20 06) (hereinafter IPI Civi l (2006) Nos. 30.04. 03, 30.04.04). Perm ission to pub li sh t hi s i nst ru ct io n was gr ant ed in 20 04. Howev er , at t he time of the trial, the instruc tion ha d no t yet been pub lished in the bo und volu mes but w as av ailable on th e w ebsite o f the Illin ois Su prem e Co urt.

### 17

The determ ination of w hethe r to give a spe cific juryinstruc tion is w ithin the circuit
co ur t's discretion, and that d ecision w ill not be disturb e d absent an a buse of dis creti on. Clayton , 346 Il l. App. 3d at 387-88. The standard for determining whether that abuse occurred is whether

the ins tructions given fairly stated the law without having prej udiced a party and dep rive d hi m o f a fair tria l. Clayton , 34 6 Ill . App. 3d at 388 (citing Dillon v. Evanston Hospital , 199 Il l. 2d 483, 505 (2002)). To justi fy an instruc tion, som e evid ence in t he reco rd m ust s upp ort th e the ory. Clayton , 346 I ll. App . 3d at 3 88. T he us e of IP I Civ il (2006) Nos. 30.04 .03 an d 30 .04.04 is only app ropria te in a case where the damages cl aimed
are within t

he scope of the rul ing in Dillon v. Evanston Hospital , 199 Il l. 2d 483 ( 2002). See IPI Civi l (2006) No. 30.04. 03, Notes on Use. The Illinois S upre me C ourt in Dillon held that a pla inti ff is per mitt ed to recove r for all demonstrat ed injuries, including the pla inti ff's increa sed ri sk of future inju ries. Dillon , 199 Ill. 2d at 504. The burden is on t he plai ntiff

to prove t

hat the defendant' s negli gence increa sed the p laint iff's r isk o f fu ture inju ries. Dillon , 199 Il l. 2d at 50 4. In thi s case, the pl ain tif f's expert, Dr. Fast , te sti fied that once apa tie nt ha s p re vi ou sly s uffe re d a n i nj ur y, that patie nt will have the possibi lity of reinjur ing tha t area. It is ar guab le wh ether th is is suffi cientevidenc e of a future injury to justif y the instruc tion. N oneth eless, it is w ell establ ishedthat where a defendant i s found not l iable , al leged er rors per taining solely t o the questi on of d ama ges d o no t affo rd gro und s for a revers al. Schuchman v. Stack able , 198 I ll. App. 3d 209, 231 (199 0). H ere the jury wa s instruc ted tha t if it dec ided for t

he defendant on the questi on of lia

bili ty , it would have no occasi on to consi der the que sti on of damages. The ju ry d ec id ed fo r th e d ef en da nt on th e q ue sti on of lia bi lity. Therefore, any error on the p art of the circuit court for a fai lure t o instruct t he jury on the inc reased risk of fut ure inj uries is not a ground for

a revers al. See Schuchman , 198 Il l. App. 3d at 231. Finally, the pla inti ff argues t hatthe circuit court

erred in admitt ing the testi mony of

### 18

TrooperConnor, who test ifie d on cross- examinati on that he had no independent recoll ecti on of his i nvesti gation of

the acci dent and was relyi ng solely on hi s poli ce report to tes tify . Our review of the reco rd reveals that, on cro ss-exa min ation, Trooper Connor did a dmit he had
no indep ende nt reco llection o f the a ccide nt, even after refres hing his memory with t he polic e repo rt. In ad dition, th e repo rt could not be rea d into evi dence as past recoll ecti on recorded because the defendant had not laid t he foundati on by having the witne ss tes tify that he had recorded the fact s at t

he time of t

he occurre nce or soon afterward an d that hi s report was
accu rate and true when made. See Rigor v . Howard Liqu ors, I nc. , 10 Il l. App. 3d 1004, 101 0-1 1 (1 973 ). Alth oug h it was error for the ci rcuit

court t o admit Trooper Connor's t esti mony, t

he defendantsuggests that t he plai ntiff

waived thi s iss ue by fai ling t o move to strike or obj ect to the testim ony afte r it had b een e licited tha t Tro ope r Co nnor had no indepe ndent recoll ecti on and b y failing to r aise the issue in his po sttr ial m otion. In orde r to pro perly pres erve an issue for an appeal , a part y must both make a conte mporaneous objec tion and raise the issue in a po sttri al mo ti on. Kim v. Evanston Hospi tal , 240 Il l. App. 3d 881, 892 (1992). In addition, Supr eme Court Rule 366(b) (2)(i ii) provides , "A party may not urge as
error on review of the ruling on the part y' s post[] tri al moti on any point, ground, or r elie f not specifi ed in the mot ion. " 155 Ill . 2d R. 366(b) (2)(i ii) . The failure to r aise an i ssue in a posttrialmotion constitutes awa iver of th at iss ue o n ap pea l. Metropolit an Life I nsurance Co.
v. Nauss , 226 Ill . App. 3d 1014, 1019 (1992) (c iting Brown v. Decatur Memorial Hospit al , 83 Ill. 2d 344 (1 980)). Aftercarefully examin ing the record and the pl ainti ff's posttrialmotion, we conclude that the issue of w hether T rooper C onnor' s testimony was pr operly admitt ed has been waived. Even if the p laintiff h ad no t waiv ed the issue, w e belie ve th at th e e rr orwas ha rml es s. An
error in the adm ission of evide nce do es not requ ire a reversal if there has been no prej udice1 Justi ce Ho pkin s particip ated in oral arg um ent. Justi ce Wexstten was l ater s ubsti tuted

on th e pan el and has re ad the briefs and liste ned to the au diotap e of o ral argu men t. 

### 19 or if the evidence has not ma teria lly aff ecte d th e ou tcom e of

the tr ial. DeBow v. City of East St. Lou is , 158 I ll. App. 3d 27, 44 (1987) . In l ight of t he addit ional c ompetentevidence i n the record, including the photographs of the l ack of damage to t he vehicl es and the t esti mony of the defendant' s expert s, we cannot saythat Tr ooper Connor' s testimony mat erial ly affected the o utco me of th e tria l. For the for egoing rea sons, t he judgment of t

he circ uit cour

t is affirmed.

Affirmed.

DONOVA N and WEXSTTEN 1 , JJ., concur.