### 1 NOTI CE Decisi on fi led 01 /22/ 08. The textof this dec ision m ay be changed or
corrected prior to the filing of a Petit ion for Re hea ri ng o r th e dispos it ion of

the s ame. NO. 5-06-0618 IN T HE AP PEL LA TE C OU RT OF ILLIN OIS

FIF TH DIST RICT

________________________________________________________________________ XON BLACKB URN et al. , ) Appeal from the ) Circui t Court of Plaintiffs, ) M ar io n C ou nt y. ) and ) ) DELBERT COPP LE, CARL HEINRI CHSMEYER, ) and DONALD HYATT, ) ) Plaintiffs- Appellees, ) ) v. ) No. 04-L-25 ) IL LI NOIS CENTRAL RAI LROAD COMPAN Y, ) Ho nora ble ) Patrick J. Hitpas, De fend ant-A ppella nt. ) Judge, presi ding.

________________________________________________________________________ JUS TIC E S PO M ER delive red the opin ion o f the c ourt: The defendant, Ill inois CentralRailroa d Compa ny ( the Rail road), appeals f rom the orderof the ci rcuit

court of M arion C oun ty that entere d a jud gm ent on jury verd icts in favor of plaintiffs De lbert Copp le, Carl Heinrichs meyer, and Donald Hyatt (t he plaintiffs) . For t

he
reas ons set f

orth belo w, w e affirm the ju dgm ent o f the circu it cou rt. FACTS The pla intiffs a re am ong a gro up o f 24 plaintiff s wh o sue d the R ailroad for cla im s aris ing under t

he Federal Employers' Liabil ity Act (FELA) (45 U.S.C. §51 et seq. (2000)), wherebythey

alle ged they

were injur ed when theywe re exp osed to asbe stos, die sel exh aust, and other dange rous product s during t he cour se of

their employment . The plaintiff s clai med, inter alia , that t

he Railr oad negli gently fail ed to provi de them with areasonably sa fe place to work. The Railro ad file d a m otion to seve r the ca ses fo r trial, and the circ uit court gr anted

### 2

the motion i n part by

consoli dating t

he plai ntiff

s' c ases i nto groups of

four for t rial . The plaintiffs'cases were t

he second group t o be tri ed togetherbefore ajury . The other plaintiff in their group did not

particip ate in th e trial fo r reaso ns un related to this appe al. Th e verd icts in the fi rst group's t

rialwere previous ly

affirmed on appea l. Xon Blac kbur n v. Illino is Central R.R. Co. , No . 5 -0 6- 041 7 ( 200 7) (u npubl is hedor der und erSupreme Court Rule 23 (16 6 Ill. 2 d R . 23) ). Delbe rt Copple was 79 years old at the time of the tri al. Mr. Copple worked for the Railroad continuously from 1950 to 1986 as a stockman and l aborerin vario us fa cilities in and around Centra lia. He testi fied that in hi s work, he was exposed to asbest os-cont aining products, including asb estos sleeves, gask ets, brake shoe s, and firebrick. C arl Heinrichs meyer

was 62 year s old at

the time of the trial. Mr. Heinrichs meyer worked for the Railroa d from 196 3 un til 1982 , also in and around Centr alia

. He worked at vari ous ti mes as
a stockma n, chauffeur, and stor e cler k, and he t esti fied thathe also handl ed asbest os slee ves and gaskets. D onald H yatt was 70 years old at the time of the trial. Mr. H yatt work e d for t he Railroa d from 1969 to 1999, beginning at the f acil ity in Champaign. Fr om 197 0 un ti l 1984, Mr. Hyatt

was responsible for mai ntaining water and st eam lines at vari ous facil iti es from Ch amp aign to Effingham. Duringhis employ ment, Mr. Hy att was expos ed to asbes tos piping and boi ler insulat ion. In 2003, t

he plai ntiff

s atte nded a scree ning set up bythe atto rneys w orkin g fo r their union. After the screening, Dr. Alvin Schonfeld diagnosed the plaintiffs w it h asbestosis, which is defi ned as the s carri ng of the l ungs creat ed by as bestos f ibers . At the trial, Dr. Scho nfeld testified that the plaintiff s' asbesto s exp osure durin g their e mp loymen t w ith th e Ra ilroa d ca use d, in wh ole o r in p art, th eir in jurie s. Aftera lengthy t

rialat which each s ide pres ented numerous lay and expert witnesses , the jury returne d ver dicts in favor of the plaintiff s, aw arding $22 0,000 in damages to M r.

### 3

Co pple , $167,000 to M r. Heinrichsm eyer, and $220 ,000 to M r. Hyatt. The circuit court deniedthe Rail road' s motions for a dir ected ver dict, mad e at the close of the plaint iffs' evidence and again at

the end of the tri al. The circui t court denied the Railr oad's posttrial motions and en tered a finding pursuan t to Illinois Supreme Cou rtRule 304(a) (2 10 I ll . 2 d R. 304(a)). The Railroad

filed a timely notice of appeal. We will set forth addi tionalfacts from the rec ord a s nee ded to expla in ou r resolu tion of each issue o n app eal. AN AL YS IS 1. Ins tructing the J

uryon the Fear of

Cancer The Railroa d argues t

hat the circuit err ed in ins tructing the jury on the fear of c ancer. The Railroa d's argument on thi s iss ue is t wofold. Fir st, the Railro ad arg ues th at the c ircuit court erred i n refusi ng to ins truct the jur y t hat in order to award damage s for the fear of cancer, the jury

must find that the f

ear must s ignifi cantl y and det rimenta lly

affectthe ab ility to carry on every daylife and work. Second, the Rail road argues that t here was ins uffici ent
e vidence present ed to warrant a jury inst ructi on on the fear

of cancer as an element of damage for each pl ainti ff. We will a ddress ea ch argument i n turn. The Uni ted St ates Supr eme Court has hel d that an asbest osis cl aimant, upon demonstrating a r ea so na bl e f ea r o f c an ce r st em m in g f ro m th e c lai m an t's exist ing dis ease, can
rec over fo r that fe ar as a p art of a sbesto sis-related pain-a nd-su fferin g dam ages in a su it broughtu nder FE LA
. Norfolk & Western Ry. Co. v. Ayers , 538 U.S. 135, 157, 155 L. Ed. 2d 261, 281, 123 S. Ct. 1210, 1223 (2003). However, it i s incumbent upo n the c laima nt to prove that h is alle ged fea r is ge nui ne a nd s erio us. Ayers , 538 U.S. at 157, 155 L. Ed. 2d at 281, 123 S. C t. at 1223. In this ca se, the circuit court instructed the jury separat ely regardi ng each plaintiff as foll ows:

"If you deci de for the plaintiff *** on the question of lia bili ty , y ou must then fix the amount of

money which wil l reas onably and fair ly

compensate hi m for any of

### 4

the following e lements of damages proved by

the evi dence to have re sult ed, in w hole
or in part, from the negl igence of the defendant , taking int o consider ation t he nature , ex ten t[, ] a nd du ra tio n o f th e inju ry: * * * The genu ine an d serio us fe ar of c ance r exp erienc ed an d reas onab ly certain to be e xpe rien ced in th e fu ture ." The circuit court

refusedthe Railroad 's proposed instruc tion, which stated : "In order to recov er for fear o f can cer, a p laintiff m ust de mo nstrate that his fear is genuine and serious. This mea ns fe ar that sig nifica ntly and d etrime ntally affects the abi lit y t o carry

on every day life and wo rk." T his proposed i nstruc tion was modele d after Justi ce Brey er' s part ial di ssent in Ayers , in which h e stated that he w ould "perm it re cove ry whe re the fear of canc er is
unu sually severe–where i t si gni fican tly and detrimental ly affects the plaintiff's ability to carry
on with everyday l ife and work. " 538 U.S. at 187, 155 L. Ed. 2d at 300, 123 S. Ct. at 1239 (Breyer, J., conc urring in part a nd d is senti ng in part) . The Rail road argues that J usti ce Breyer is propos ing a defi niti on of "genuine and seri ous." However, he is i n fact, proposing
a more stringent st andard than that handed down by the maj orit y i n Ayers . Accordingly, the circuit court di d not err

when it r eject ed the Railroad' s tender ed inst ructi on and inst

ructed t he jury in accor dance with t

he majori ty

opinion in Ayers
. We now turn to th e issue of w hethe r the circ uit court er red in det ermining t

hatthere
was suffici ent evi dence to suppor t a jur y i nstruc tion on t

he fear of canc er regard ing each plaintiff. Ou r revie w of the record revea ls that D r. Do uglas Poh l testified th at asbe stos is carcin ogen ic and that

a person who has been expos ed to as b estos i s at an increased risk of
can cer. Dr . Scho nfeld also tes tified tha t asbes tosis so metim es cau ses ca ncer. M r. Cop ple test ifie d that he is concerned, even worried, about the prosp ect of d eveloping cancer. M r. Heinrichs meyer

test ifie d that he is concer ned about t aking car e of his fami ly in the event that

### 5

he contra cts t

he diseas e. Mr. Hyatt

test ifie d that c ancer i s on his mi nd all t he time andthat he had pneumonia in J anuary and thought he might have been contr acti ng cancerat that ti me. We find thi s evidence su ff ici en t to su pp or t th e c irc ui t co ur t's decisi on to ins truct the jur y t hat it could award eac h plain ti ff damages for t he fear of canc er shoul d it find that f ear to be gen uin e an d se riou s. 2. Denialof the Motion for a New Trial on the I ssue of Damages or a Remittit ur
a. Standard of

Review The Railroad a lso ar gues that the circuit co urt erred in denying its motion for a new tri al on the ent ire damages award and in denying its alte rnati ve motion for a remittit

ur on the future

- medical-expense an d p ain -a nd -su ff er in g a w ar ds . W he n w e r ev iew a c irc ui t co ur t's ruli ng on a motion for a new tria l on the i ssue of compensat orydamages, t he standard of review is whether

the ver dict i s ag ains t the m anifest w eigh t of th e ev iden ce. Hollowell v. Wilder Corp. of Delaware , 318 Ill . App. 3d 984, 990 (2001) (c iting Maple v. Gustaf son , 151 Ill. 2d 4 45, 45 4 (19 92)). "A verd ict i s agains t the m an ife st w eig ht w he n i t is ar bi tra ry, unreasonabl e, or not based upon any evidence." Ho llowe ll , 318 Il l. App. 3d at 990 (citing Maple , 151 Ill . 2dat 454). Th e standard of revie w for the ci rcuit court' s ruling on a motion for a rem ittitur is wh ethe r the circu it cou rt ab use d its d iscre tion

. Ho llowe ll , 318 Il l. App. 3d at 99 1. In addition to the stand ard of rev iew, it is important to no te several principles that are applic able when reviewing adam age s aw ard

. "The determinati on of damages is a questi on
reserv ed to the trier o f fac t, and a review ing co urt w ill not li ghtly substi tute its opi nion for the judgment rendered in the trialcourt." Richardson v. Ch apman , 175 Il l. 2d 98, 113 (1997). "An award of damages will be de emed excessi ve if i t fal ls out side t he range of fa ir and reasonabl e compensati on or results fr om passion or prejudic e, or if it is so larg e that it shocks the judicialconscience." Richardson , 175 Il l. 2d at 113. "W hen review ing an aw ard

### 6

of compensatory

damages for a nonfat al inj ury , a cou rt may consider, among other things, the permanency

of the plaintiff's condition, the po ssibility of future deteri orati on, the extent of the pla inti ff's med ic al expense s, and t he rest rictions i mposed on the pla inti ff by t he injuries. " Richardson , 175 Il l. 2d at 113-14. b. The Identi cal Awards Befo re turni ng to ouranaly sis of t he specifi c ite ms of damages awarded to ea ch of the pl ai nt if fs , w e recogniz e that

in sev eral pla ces in th e Ra ilroad's b rief, the R ailroad poin ts to the fact t hat the jury

made identi cal awards to the plaintiffs fo r th e f ea r o f c an ce r, d isa bi lity, and pain a nd su fferin g and identic al aw ards to M r. Cop ple and M r. Hyatt for futur e medical expenses. The Railro ad dire cts this co urt's attentio n to tha t fact in supp ort of its a rgum ents that the trials should have bee n severed; that t he jury should have bee n instructed on a defini tionof "g enuin e and seriou s" in relation to t he fear of canc er; and

that wit hout evide nce of life expectancy

the jur y shoul d not have be en in struc ted to c onsider , in a ssessing the awards for futur e medical expen ses, how long the plaintiffs a re like ly to live . A lt

hou gh w e have analyzed these s pecif ic issues in other

parts of this opinion and f ound no error , we find it prov ident to consider

whether the identi cal awards, in and of them selves , wo uld n ecess itate a new trial on damages. We find no authorit

y i n Ill inois , and the Railr oad points t o none, that st ands for t he proposition that identi cal awards, in and of themselves, are rev ersible error. In l ight of this, we have examined how this i ssue has bee n handled by other juris dictions. Inso doing, we were persuaded by the reasoning of the Kansas Suprem e Court, which stated as follows:

"The ' ["] only standard for evaluation is such a mount as reas onable per sons estima te to be fai r compe nsati on for the injurie s su ffe red .["] ' (E mp has is ad ded .) Morris v. Francisco , 238 Kan. [71, ] 77-78[, 708 P.2d 498, 503-04 (1985)] ( quoting Ratterree v. Ba rtlett , 238 K an. [1 1,] 23 [, 707 P.2d 106 3, 107 2 (19 85)]). T here is no

### 7

perse rule which discredits i dentical awards, and there is no provi sion i n current law for comparison of one plaintiff' s recover y wit h anothe r' s to ser

ve as the ba sis for overtur ning a jur y's verd ict." Kuhl v. Atc hison, Topeka & Santa Fe Ry. Co. , 250 Kan. 332, 344 , 827 P.2d 1, 9 (1992 ). The Kansas Suprem e Cour t wen t on to e xplain that if re ason able p erson s cou ld estima te the damages of ea ch indivi dual plaintiff t o be a fair c ompensation f or the injuri es suffered, without compar ing them t o each other , the n the ide ntica l awards shoul d be upheld. Kuhl , 250 Kan. at344, 827 P.2d at 9. Similar conclus ions have bee n reached by the Maine Supreme Court, a s we ll as the Unite d States Court of Appeals for the Ninth Ci rcuit . See Harr is v. Soley , 2000 M E 15 0, ¶27 , 756 A .2d 49 9, 508 (200 0); Lambert v. Ackerley , 18 0 F.3d 997, 1011 (9 th Cir. 1999). We find t his analysi s persuas ive for our purposes her e, espe cially in li ght of

the fact that all three plaintiffs w ere similarly dia gno sed w ith asbe stosis and had s imila r phy sicalmanifest ations of this diseas e, pres enting wit h sympt oms of shortne ss of

breath and s om e limitatio ns on their levels o f exe rtion. A lthoug h M r. Cop ple
was 79 years old at the time of t he tri al, while Mr. Heinri chsmeyer was 62 and Mr. Hyatt

was 70, a reasonabl e jury

could conclude that

because l ongevity

is uncer tain, simil ar awards for future damages w ere justi fied based on the similarit y of their asbestosis-r elated conditions. A cc or di ng ly, we decline t o substi tute our judgment for

that of the jur y sol ely on the basi s of iden tical a wa rds.
c. Future Medical Expens es We begin ou r analysis of the particular verd icts at i ssue w ith the awa rd for future medi cal exp ens es. T he ju ry aw ard ed M r. Co ppl e an d M r. H yatt ea ch $ 100 ,000 , a nd i t awarded Mr. Heinrichs meyer $47, 000 for future medical expenses. We cannot say that these awards are agai nst the manifest weight of the evidence or tha t the circ uit cou rt abus ed its discr etionin d enyin g th e m otio n fo r a re mittit ur w ith re gar d to futu re m edic al ex pen ses. Dr.

### 8

Sch onfeld test ifie d t ha t beca use th e plain tiffs w ere dia gno sed w ith asbe stosis, the y wou ld need peri odic X ray s, medic al exams, and colonoscopi es. Si milarly, Dr. Pohl t esti fied that
an asbest osis patient must have routi ne pulmonary test ing thr oughout his life

. M r. Cop ple test ifie d that he plans to mo nitor his condition w ith his family doctor. Mr. Heinrichs meyer test ifie d that he also plan s to mon itor his health. Mr. Hyatt test ifie d, without

object ion, t

hat his d octo r told him he w oul d ne ed a che st X ray ev ery year . The Railro ad arg ues th at these verd icts should be reversed because the pla intiffs d id not produc e evidenc e of any spec ific medical ex penses tha t they would incu r in the future other than "gen eric referenc es" to p eriodic visits to a p hysician for a ch est X ray. Howe ver, "the tri er of fact

enjoy s a cert ain degre e of leeway in awarding c ompensation f or medical costs that, as show n by the eviden ce, are likely t o aris e in the future but are not spec ifically itemi zed in the testim ony." Richardson , 175 Il l. 2d at 112. The Rai lroad al so point s to the plaintiffs'counsel' s stat ement duri ng closi ng argument that a "fair figur e" for futur e medical expenses wou ld be $5, 000. However, " ' [a] jur y' s award of a verdi ct highe r than t hat request ed by couns el does not , by its elf, indicate that the j uryacted out of pas s ion or pr ejud ice.' " Tri-G, I

nc. v. Burke, Bossel

man & Weaver , 222 Il l. 2d 218, 250-51 (20 06 ) (quoti ng Fedt v. Oak Lawn Lodge, Inc

. , 132 Ill. A pp. 3 d 10 61, 1 072 (19 85) ). We find that the amo unts a wa rded fall w ithin a ra nge o f fair a nd re ason able compensati on for peri odic X ray s, ex ams, and other di agnosti c testing that the evi dence sh ows the pla inti ffs will face du e to the asbesto sis diagnosis. In add ition, these amou nts are not so lar ge that

we can say t

hat the y ar e based o n j uror pass ion or pr ejudic e or that they shock the judi cialconscienc e. Accordi ngly , we will not substitut e our judgment for that of the jury . The cir cuit c ourt di d not err in all owing the jur

y' s verdi ct with r ega rd to fu tu re medical expe nses to s tand.

### 9 d. Pain and Suff

ering, Disabil ity, and Fear of Cancer We now turn to the j ury 's award to the pl ainti ffs for pain and suffering a nd d isability and fearof cancer. The jury awarded each of the plaintiffs $15, 000 for pain and sufferi ng, $75,000 for disa bility, an d $3 0,00 0 fo r fea r of can cer. Dr. Alvin Schonfel d test ifie d that t he plaintiffs suffered from asbestosis, a perm anen t cond ition, w hich w as cau sed, in w hole o r in part, by t

heir empl oy men t with the Railroad. Dr. Schonfeld testified that t he plaintiffs'
com plaints of

shortne ss of breath were consi stent with his findings of

asbest osis and t

hat the pla inti ffs were a t an inc reased risk of deve loping canc er as a r esult of their ex posu re to asbestos. Dr. Donald Brey er tes tifi ed thatthe pla inti ffs' chest X ray s contained vary ing degrees of

abnormali ties consist ent with a sbestos is. Mr. Copple tes tifi ed that he gets winded when he works out at

the gym and when walking up stai rs. Mr. Heinrichs meyer test ifie d that justabou t every ac tivity make s him sho rtof breath. H e testified that he is not able to w ork the same hours he us ed to w or k a t h is t av er n, d ue to sh or tn es s o f b re ath . A lth ou gh he pl ays golf, he must use agolf cart. Mr. Hy att t esti fied that he would have t o stop hal fway up the stairs due to shortness of b reath. Dr. Poh l testified that the plaintiffs' complaints w ere consist entwith his diagnosis of asbestosi s. The plaintiffs t es tifi ed that they experie nce shortness of breath to varying degrees, andth ey gav e s ome indica tion on how this imp acts their lives. In addition to the t est imony of the pla inti ffs, expe rt t esti mony was prese nted that asbe stosis has the very real pot entia l to worse n in the f uture. In addition, e xpert t esti mony
was presented regarding the increased ri sk of cancer, and the pl ainti ffs tes tifi ed regardi ng the
concern an d wo rr

yth is caus edth em. As explai ned elsewhere in thi s opini on, the jur y was
correc tlyinstruc ted on these e leme nts of dam ages , and it w as w ithin its disc retion to assess
a mo neta ry valu e fo r the se n one con om ic item s of dam age . Because we cannot say that t he
amo unts awarded fall outsi de the range of fai r and reas onable compensation or r esult from

### 10

passionor prej udice or that the amounts awarded are so l arge that they shock the j udicia l conscienc e, we will not di sturb t he award. Accordi ngly , the circuit court did not er

r when it den ied th e R ailro ad's m otio n fo r a n ew trial o n da ma ges or a rem ittitur. [Th e fo llow ing ma teria l is no np ub lisha ble un der Su pre me Co urt Ru le 23 .]

3. Ins tructing the J

uryon Negligence and Damages
a. Standard of

Review Th e Railroad argues that the ci rcuit court er red by inst

ructing the jury

on the iss ue s of neglig ence and d ama ges. "A lit igant has t he righ t to hav e the ju ry clearly and fairly instructed

upon each theor

y which was su pport ed by the evidence." Leo nard i v. Loy ola Un iversity of Chicago , 168 Ill . 2d 83, 100 ( 1995) (ci ting Ervin v. Sears, Roebuck & Co. , 65 Ill. 2d 1 40, 145 (1976)). "However, it is er ror t o give an i nstruc tion not based on the evidence." Leonardi , 168 Ill . 2d at 100. "The questi on of what iss ues have been r aised by the ev idenc e is w ithin the discreti on of the trial court ." Leonardi , 168 Il l. 2d at 100. " The evidence may be sl ight; a revie wing court may not reweigh it or det ermine i f it s hould lea d to a particular conclusion." Leo nardi , 16 8 Ill . 2d at 100. "The te st i n determi ning the prop riety of tender ed in str uc tio ns is w he th er th e ju ry w as fa irly, fully, and com preh ensiv ely informedas to t

he rele vant principle s, cons idering the ins tructions i n t heir entir ety." Leonardi , 168 Il l. 2d at 100. b. Instructionson Negligence We note that headi ng "L" in the Railr oad's brief includes a stat ement that the circuit court abused it s discr etion in instructing the jur y r egar ding the R ailroad's neglige nce. How ever, the R ailroad 's brief is devoid of any argum ent regarding any error the circuit court mighthav e mad e i n i nst ru ct in g the j uryon n egl ig enc e. Pur suantto Il li noi s Supr eme Cou rt Ru le 341(h)(7) (210 Il l. 2d R. 341(h)(7)), po ints not argued in the appe llant's brief are waived. Moreover, even i f the Railroad had not wai ved the i ssue of the jur y i nstruc tions on

### 11

neglige nce, there i s ample evi dence i n the record upon wh ich the circuit court could base those instructi ons, as we have explaine d be lo w w ith re ga rd to th e c irc ui t co ur t's denialof the R ail ro ad 's motion for a judgment not

withs ta nding the ve rdict on the is sue of negli gence. Accordingly , the circuit court did not er

r in i nstruc ting t

he jury with regard to negli gence.
c. Instructionson Future Medical Expens es With regard to damages, the Rail road argues that t he circuit court

abused it s discr etion when it instructed t

he jury it coul d award the pl ainti ffs damages for f uture medi cal expenses. As prev iously no ted w ith rega rd to the moti on for a new tri al on damages, our revi ew of the record reveal s that

there wa s enoug h eviden ce for the circu it court to so instruct the jury. Dr. Sch onfeld testified that be caus e the p laintiffs we re diag nose d w ith asbe sto si s, they w ould
ne ed pe rio di c X ra ys, m ed ica l ex am s, a nd co lo no sc op ies . S im ila rly, Dr. Pohl t esti fied that
an as bes to si s pati ent

mus t h ave ro ut in e pu lmo n ary testing th roug hou t his life. C opp le t estifie d that he plans t o monitor hi s condit ion with hi s family doctor. Heinrichs meyer test ifie d that

he a lso p lans to m oni tor h is he alth. Hyatt testif ied, w ithout o bjectio n, that h is doctor told him he w ould need a chest X ray ever

y y ear. Fr om this t esti mony, we conclude that there was " some evidence" to warrant a future -medical -expense i nstruc tion. See Mikus
v. No rfolk& West

ern Ry. Co ., 312 I ll. App. 3d 11, 33 (2000) (holdi ng that e xpert t esti mony that future med ical treatm ent is req uir ed is sufficient to warrant a futur e-medical-expense instruction). Acco rdingly, the circuit court did n ot err w hen it in structed the jury tha t it could award future medical expenses to the plaintiffs. d. Instructionson Present Cash Value In a related argu men t, the R ailroad argu es that th e c ircuit co urt erred wh en it instructed

the jur y t hat it must reduce any fut

ur e-me dic al-expense award to present cash value but fai led to instruc t the j uryon the requi sit e methods to c alcul ate pre sent cas h value. The circuit court i nstructed the jur y on present cash value as foll ows:

### 12 "In computing t

he damages ari sing i n the future b ecause of fut ure medical exp ens es[ ,] you must determine their present cash value. 'Pre sentcash value ' means the sum of m oney ne eded now , wh ich, w hen a dded to what that sum may rea sona bly be expe cted to earn in t

he future , will eq ual the amo unt o f the e xpen ses at th e time in the f utu re w hen the e xpe nse s m ust b e pa id. Damages for p ain and suffering and disabi lit y ar e not reduc ed to present cash valu e." This instructi on was taken verb atim f rom Illinois P attern Ju ry Instructio ns, C ivil, No. 34.02 (2006) (he reinafter IPI C ivil (2006)). The re is no requir ement that actuar ial or stati sti ca l evidence be pr esent t o guide the jury in it s deter

minati on of present

cash value when this instructi on is gi ven. See Robinson v. Greele y & Hansen , 114 Il l. App. 3d 720, 725 (1983); Cr abt ree v. St. L oui s-Sa n F ran cisc o R y. C o. , 89 Ill . App. 3d 35, 39 (1980). The Railroa d does not cont est t he defini tion of " present cash value " contai ned in the inst ructi on, does not claim the jur

y i mproperly

computed prese nt cash value, and di d not submit another form ula that it

believed better explained the method of arriving at present cash value. See Robinson , 114 Ill . App. 3d at 725. We recognize , as di d the court s in Robinson and Crabtree , that actua rial e vidence is often helpful to juries in reducing damages to monetary figures. Robinson , 114 Ill . App. 3d at 725; Crabtree , 89 Il l. App. 3d at 39. However, that evidence could have been present ed by t he Railr oad had it

felt that it was necessar

y. See Robinson , 114 Ill. App . 3d at 7 25; Crabtree , 89 Ill. A pp. 3d at 39. A ccord ingly, the circ uit cour t did not err in ins tructing the j uryon present cash value

. e. Instruc tions o n Pa in an d Su ffering a nd D isability The Railroa d also argues that the circuit court erred in instruc ting the jury on pain and sufferi ng an d di sabi lity . H owe ve r, as se t f orthab ove , w e find ample evi dence to suppor t the ju ry's verdict s for the plaintiffs for both of the se element s of damage. Accordingly , we find

### 13

no error in the cir cuit court' s instruct ions in these areas.

f. Instruc tions R egar ding the P laintiffs' Lo ngev ity With regard to the inst

ructions on future damages, the Railroad also takes i ssue with the circuit court

instructing the jur

y i n accordance wit

h IPI Civi l (2006) No. 34.01. That instructi on provided as follows:

"If you fi nd that a

plaintiff i s enti tled to damages aris ing in the future because of injuries, you must

determi ne the amount of these damages which will arise in the future. If these damages are of a continuing nature, you may consider how long they will con ti nue . I f thes e damage s a re per ma nent in na t ure, then in computing these dam age s you m ay co nsid er h ow lon g th e pla intiff is lik ely to liv e." The Railroa d contends i t was error to give th is instruc tion w ithout m ortality tables in evidence to ins truct

the jur y on how long t

he plai ntiff

s are l ikely

to li ve. However, t

he Railro ad po ints to no au th or ity, and o ur rese arch re veals n one, th at requ ires tho se table s to be admitted into ev idence prior t o ins tructing the j urythat it may c onsider how long the plaintiff is like ly to live in as sess ing futu re d am age s. In fact, IPI Civi l (2006) No. 34.04 instructs the jury

on the use of mort alit

y t ables i f and when theyare ent ered into evidence. That inst ructi on stat es that

the jury is on lyto use mort alit y t ables " in connect ion with ot her evidence relating to t

he probable life expectancy of the pl ainti ff in this cas e, i ncluding evidence of his occupa ti on, hea lt h, hab it s, andother

activ itie s, beari ng i n mi nd t hat som e persons live longer and s ome persons l ess than the av er ag e. " I PI Ci vi l ( 200 6) No. 34. 04. As is the ca se w ith the a ctuaria l d ata, the R ail road wa s free to offer mo rtality tables into evidence. The circui t court did not er

r in gi ving IPI Ci vil ( 2006) No. 34.01.

### 14 4. Denialof the Motion for a Judgment Notwiths tanding t he Verdict
a. Standard of

Review The Railroa d argues t

hat the tri al court

erred i n denyi ng its motion for a judgment notwiths tanding the ve rdict ( n.o.v . ) because t he plai ntiff

s fail ed to pres entany evi dence that the R ail ro ad ac ted ne gl ig en tly to w ar d t he m or th at t he y w ere inj ured as a res ult of any neglige nt cond uct. The Railroad f urther argues t hat the plaintiffs fail ed to offer any evi dence of pain , sufferi ng, o r loss of a nor ma l life e xpe ctan cy. To ana ly ze th es e i ss ue s o n appe al , w e begin with the stan dard the circ uit cou rt mus t emp loy in ruling on a m otion for a judgment
n.o.v . , as we ll as our stand ard o f revie w. "[ A] ju dgm ent n.o.v . is prop erly entered in those limi tedcases where ' all of the evidence, when viewed in it s aspect most favorabl e to the opp onen t, so overwhelmingly favor s movant that no contrar

y ver dict ba sed on that

evidence could ev er stand.' " Maple v. Gustaf son , 151 Il l. 2d 445, 453 (1992) (quoting Pedrick v. P eoria & Eastern R. R. Co. , 37 Il l. 2d 494, 510 (1967)). "Put another way, 'a moti on for judgment[no twiths tandin g the v erdict] present s "a question of law a s to w hethe r, wh en all of the evi dence is c onsider ed, t ogether wit h all r easonable infere nces fr om it in it s aspect most favorabl e to the plaintiffs, there i s a tot al fai lure or lack of evi dence to pr ove any necessary element of t

he [pla intiff's] ca se." ' " Blount v. Stroud , Nos. 1- 06-2428, 1- 06-2968, slip op. at 9 (Sep tember 2 8, 2007) ( quoting York v. Rush-Pres byterian-St. Luke's Medical Center , 222 Ill . 2d147, 178 (2006) (quoti ng Merlo v. Pub lic Serv ice C o. of Northe rn Illino is , 381 Ill. 30 0, 3 11 (1 94 2) )). A pp ell ate co ur ts e m pl oy a d e novo standar d of revie w when reviewing decisio ns on mo tions f or a jud gm ent n.o.v . McClure v. Owens CorningFiberglas Corp. , 188 Ill. 2d 102, 13 2 (1999 ). b. Liab ility With regard to th e Railro ad's arg um ent tha t the circu it court e rred in denying its motion for a ju dgm ent n.o.v . beca use th e plain tiffs fa iled to present evidence on t

he issue of

### 15

liability, FEL A p rovid es as follow s:

"Sec. 1 of

[FE LA ] mak es the c arrier liab le in da mag es fo r any injury or d eath 'r esult ing in w ho le o r in pa rt f ro m th e n eg lig en ce ' of

an y o f its 'offi cers, agents, or
em plo yees.' *** At common law the duty of the em ployer to u se reas onab le care in furnis hing his emplo yees with a safe p lace to wo rk wa s plain. [ Citatio n.] Th at rule is deeply engraine d in fed eral juri sprudence. [Citat ions. ] *** [I] t is a duty which becomes 'more i mperat ive' as th e ris k increa ses. *** It i s that rule which obt ains under[FELA ]." Bail

ey v . Cen tral Ve rmont

Ry ., 319 U.S
. 350, 352-53, 87 L. Ed. 1444, 14 47, 63 S . Ct. 1062, 10 63-64 (1 943). The most basi c questi on for the c ourt i n every FELA case is "whether t he proofs just ify with reaso n the c onclu sion th at e mployer n eglige nce play ed any part, even the slightes t, in p rod ucin g th e inju ry or d eath for wh ich d am age s are sou ght ." Rogers v. Missouri Pac ific R.R. Co. , 352 U.S. 500, 506, 1 L. Ed. 2d 493, 499, 77 S. Ct. 443, 448 (1957). The quantum of evidence nec essary to support

a jury verdict of liabi lit y in a FELA case is "much less than in an ordinary

negligence case." Lew is v. Co tton B eltRoute-St. Louis Southwestern Ry. Co. , 217 Ill. A pp. 3 d 94 , 112 (19 91)

. That causes other than employ er negli gence have play ed a role in the pla intiff's inju ry does n ot prec lude a findin g of neglig ence again s t the
em plo yer. Rogers , 352 U.S . at 50 6, 1 L . Ed . 2d a t 49 9, 77 S. C t. at 44 8. Our review of the record on a ppeal l eaves no doub t that the pla inti ffs submitted evidence from which the j urycould det ermine that the Railroa d knew or sh oul d have kno wn that the plaintiff s we re exp osed to harm ful lev els of a sbesto s durin g their employment and that they we re injure d as a result o f this ex posu re. W ithout o bjectio n, th e pla inti ffs intr oduced exhib its that ind ic ated that the Rail road was aware of the risks of asbest os exposure as early

as the mid- 1930s, t

hat asbes tos was danger ous whetherworkers handl ed it themselve s or were onl y near others using i t, and that c ertain safety pr ecaut ions c ould

### 16

lesse n those r isks. Lyndle Burton, t he Railr oad's manager of indu stri al hy giene, acknowledged that, from an indu strial hygien e pers pectiv e, a failu re to imple men t the safety precaut ions recommende d in the exhib its was un reasonabl e based on the knowledge refl ected in th e ex hib its tha t asb esto s is d ang ero us. Charles Garrett, the Ra ilroad's senior ris k miti gation of ficer , te sti fied that he invest igate s clai ms against the Rail road for lung injuries fr om substances such as asbestos. He test ifie d that t

he Railro ad's disc over y respon ses inc luded statem ents that it did not issue anywritt en warnings t o its employe es about t he hazards of a sbestos expos ure, and t he Railroa d did n ot den y that asbestos was used in the w orkplaces w here the plaintiffs w ere employe d. The plaintiffs t esti fied at length and in deta il r egarding how the y were expos ed to asbest os materi als and t hey were pr esent when asbest os dust was i n the ai r in t he various facil iti es where they

worked. The plaintiffs also test ifie d that t he Railr oad did not provide them with respira to rs to f ilt er out the dust, did not t ell them that exposure to asbest os dust mightbe dangerous, and did not a dvise t hem to take any safe typrecaut ions, such as wett ing down the dust, when working w ith or around asbestos. The plaintiffs' exper t witness, Dr. Michael Ellenbeck er, a certified ind ustrial hygie nist, test ifie d that t

he medical and surgic al section of the Association of American Railroads, of which the Railroad was a m embe r, recognized a s earl y as 193 7 that a sbestos used in t he R ail ro ad 's wo rkp lace s po sed a ha zard

. He st ated that the railroad indus try recogniz ed the conceptof bys tan der ex posure to a sbestos as early as 194 0 and tha t the plaintiffs we re exposed to very hi gh and unsafe levels o f asbest os during t heir empl oyment wit

h the Railroa d, even tho ugh m ethods to red uce exp osure to as bes tos w ere a vaila ble. He concluded that the Railroa d did not pr ovide the plaintiffs with a rea sonably safe plac e to wo rk. There is no doubt from our r eview of the r ecord that the pla inti ffs produced s uffici ent evi dence of FE LA liability to with stand a mo tion fo r a judg men t n.o.v .

### 17 c. Damages In additi on, we cannot sa y t hat the plaintiffs fai led to produce suffici ent evi dence of da mages to w ithstand a mo tion fo r a judg men t n.o.v . As e xplain ed ab ove, w e fin d ampl e evidence in the record to s upport t he jury 's ve rdict s. Because t he p lai nt if

fs put for thsom e evidence for each element necessa ryto pr ove th eir FE LA claim s, we find th at the c ircuit
cour t did no t err in de nying the Railro ad's m otion for a jud gm ent n.o.v . 5. Denialof the Motion t o Sever The Railroa d argues t

hat the circuit court

erredby failing to seve r the pla intiffs' trials because th eir cla im s la ck ed th e r eq ui sit e c om m on ali ty to ju sti fy c on so lid ati on . S pe cifica lly, the Railroad contends that the plai ntiffs w ere alle gedly exposed to as bestos when they worked at different facil ities , during different time periods, for markedly di fferent durations, in differe nt tr ad es, throu gh the use of di fferent products . "An acti on may be seve red, and acti ons pending in t

he same court

may be consol idate d, as an aid to c onvenience, whenever i t can b e don e w ithout p rejudic e to a su bstan tial right." 7 35 IL CS 5/2-1 006 (W est 2 004)

. The tri al court

has broad di scret ion in matters of cons olidat ion and severanc e, which discr etionis to be guided by considerations of convenience and the rights of the parties. Needy v. Sparks , 51 Il l. App. 3d 350 , 355-56 (1 977). "W here se par at e cause s a re of t he s ame nature, involve t

he sam e or like is sues[, ] and depend l argely upon the same evi dence, consoli dationis not an abuse of discretion." Ad-Ex, Inc. v. Cit y of Chicago , 247 Il l. App. 3d 97, 103 (1993). Indeed, in at le ast one instance , thi s cour t has found cons olidation proper with re gar d t o thr ee p er son al in jury cl ai ms and one wrongful death clai m where the jur y was prop erly instructed, the evi denc e was not confusi ng or misl eading, and the re cord did not show anyprejud ice to the d efe nda nt. Pickering v. Owens-Corning Fi berglas Corp. , 265 I ll. App. 3d 806, 811-12 ( 1994). "Inherent in the power to c o nsolidate is the au thority to integra te evidence at

a j oin t tri al in the int erest of convenience and econom y." Pickering ,

### 18

265 Ill . App. 3d at

811. We agree with the pla intiffs th at the trial o f their cases t ogether was not unfai r to t he Railroa d. The evidence r egarding t he Railroa d's knowle dge of the hazards of as bestos in the workplace and the avai lable safety measures for

reducing t

ho se risks w as the s ame for all three pl ainti ffs. The Railroad' s knowledge of the se hazards was not dependent upon locat ion,
so the fact

that t he plai ntiff

s may have worked at differe nt locations is not disposi tive of

the
severance issue. We recognize that the jury had t o assess the damages i ssues for each of the three plain tiffs sep arate ly. How ever, we find that the trial c ourt bal anced thi s factor with the need for co nven ie nce in the a dm inistration of jus tice an d dete rmine d that th e jury cou ld hand le the separate damages of three or four plainti ffs a t the s ame time without causing substantial prejudice to the R ailroad. The jury was pr oper ly instructed that it w as to determi ne th e c as es of

ea ch pl ai nt if

f s ep ar at el yon its own me r i t s. We find that the de cisi on to all ow a consolidat ed tri al of three pla inti ffs was not an abus e of discr etion. 6. Denialof Motion for Leave t o File Thi rd-Part y Complai nt for Contributi on On M arch 9, 20 06, le ss than t hree months bef

ore the s tart

of the j urytri al under
re vi ew, the Rail road file d a motion for leave t o file a third-part y compla int aga inst

nine asbest os m an ufac tu re rs a nd on e in su ra nc e c om pa ny. In the moti on, the Railroa d alle ged that it s hould be al lowed to file the third-party complaint be cause "it is necessa ry to ensure that [the Railroa d] does notpay more t han its pro rat a share of any responsibili ty

it may have for pla intiffs' claim ed inju ries." T he R ailroad allege d that it h ad no t filed the mo tio n earlie r because it "needed to c onduct an i nvesti gation wit h respect to thos e companies or

entities t hat may be responsible for pl ainti ffs' clai med injuri es." The Rai lroad bl amed its l ate fi ling on the plaintiff s, wh o "did not p rovid e info rmatio n in res pon se to defe ndan t's discov ery reque sts regardi ng oth er law suits unt il A ugu st 20 05." The Railroad a llege d th at it "t he n, at it s o wn
cons iderab le expense, t ravele d to Florida and re viewed those f iles to obtain copies o f all

### 19

relevant pl ea di ngs ." On March 15, 2006, the circ uit cou rt denie d the m otion a s untim ely with regard to the tri al of the plainti ffs, although it l ater granted the motion for future t rials. Although the trial c ourt may allow a FE LA defe ndan t to file a third-part y compla int for contribution (

Norfolk & Western Ry. Co. v. Ayers , 538 U.S. 135, 162, 155 L. Ed. 2d 261, 284, 123 S. Ct. 1210, 1226 (2003)), the ci rcuit court i s justifie d in exerc isi ng its discr etion to d eny l eave to fi le a t hird- party

complaint

when a late fi ling would del ay t he under lyin g trial. Grimming v. Alton & Southern Ry. Co. , 204 I ll. App. 3d 961, 977-78 ( 1990). The appr opriate time for

the Rail road to have file d its thir d-part y compla int for

contribution was within t he time for

it t o file its answer. See Grimming , 204 Il l. App. 3d at 977. In it s motion, the Rail road did not assert that when i t fil ed its answer in Apri l 2004, it did n ot kn ow or ha ve rec ords o f the m anufactu rers pro vidin g asbest os product s to the facil iti es at which the plai ntiff s worked. When the Railroad file d its answer, i t fai ledto file
a request for an ext ension of time wit hin which to f

ile its third- party

complaint . Rather , the Railroa d wai te d unti l a lm os t t wo year s after

it had f iled its answer and les s than t hree months before the trial und er revie w to request leave t o file a third-part y compla int. As in Grimming , if the ci rcuit

court had gr anted the Railroa d's mot ion for the t rialunder revi ew, 10 addit ional third-p arty defendants would have been brought into t he case, n ecess arily delaying the trial. The factthat the circuit co urt gra nted th e mo tion fo r subs eque nt trials substantiate s the fac t that the circuit court 's de nial was bas ed on the del ay. It was no t an ab us e o f th e c irc ui t co ur t's discr etionfor th e cou rt to determi ne that it was a pr ejudic e to the se plaintiff s on the imm ediate trial doc ket to g rant the mo tion fo r leave to file a th ird-pa rty comp laint.

7. Exclusion of Ev idence of Abse nce of W arnings Fro m A sbestos M anufac turers The Railroa d's f

ourth i ssue on appealis tha t th e circ uit cour t err ed in granting the plaintiffs'motion in limine to exclude e vid ence that the manufacturers of the asbestos-

### 20

contai ning prod ucts u sed in the R ailroad 's facilities d id no t i nclu de w arning s on th eir packages. The Railroad argues that evi dence regar ding warnings i s rel evant t o the is sue of fores eeab ililtyand , ther efo re, p rop erly ad mitte d. " 'Whether granted or

denied, a motion in limineits elf does not pre serv e the issu e fo r ap pella te rev iew .' " Bergman v. Kelsey , 375 I ll. App. 3d 612, 635 (2007) (quoti ng Sul livan- Coughlin v. Palos Country Club, Inc. , 349 I ll. App. 3d 5 53, 56 1 (20 04)). " 'R ather, to prese rve an error in the exclusion of evidence, the proponentof the evid ence m ust make an adeq uate offe r of proof in the [circuit] court .' " Bergman , 375 Ill . App. 3d at 635 (quoti ng Sull ivan-C oug hlin , 349 Ill. App. 3d at 561). " 'Fai lure t o make such offer of proof resul ts i n waiver of the issue on appeal.' " Bergman , 375 Ill . App. 3d at

635 (quoti ng Sulliva n-C oug hlin , 349 Ill. A pp. 3 d at 5 61)

. Here, as set for th in the Rail road' s repl y br ief, the only offer of proof

that t he Railr oad mad e con cernin g w arning s on a sbesto s prod ucts was during the vide o evidence depos iti on of the p laint iffs ' exp ert in dus trial h ygien ist, M icha el J. E llenb eck er. During this deposit ion, the R ailroad present ed Mr. Ellenbec ker with a doc ument that , accor ding to t he Railr oad, de al t with Kaylo pipe insul ation, an insul ating productmade by Owens-Corning in the 1950s. The Railroa d had Mr. Ellenbecke r read s ome writing on t he document that s tate d "non[]i rri tating to the sk i n andno n[ ] t ox i c. " W e find th at, even if evid ence of w arning s on a sbesto s prod ucts
was relevant to t

he issue of foreseea

bili lty , the Railroa d fail ed to laythe proper foundati on for the admiss ion of thi s evidence within i ts offer of proof. The offer of proof did not s et forth any evi dence tendi ng to prove t hat the Railroa d used that parti cular product, when the Railroa d used the pr oduct, that anyone at the Rail road saw the s tate ment on the exhibit, or whetherthe Rail road rel ied on the stat ement. Accordingly , it was not an abuse of dis creti on to exclude th e evidenc e set forth in the offer of pro of. We find th e issue of ad missib ility
w aived for a ll ot

her dir ect evi dence of warnings on a sbestos products , because absent an offerof proof, t here is no way to det ermine whether a proper foundation for t he admissi on

### 21

of that evidence was es tabli shed. 8. Sust aining Obje ction to Recross-Examination of Dr. Pohl on Lack of Warnings The Railroa d also argues that the circuit court erred in sustaining an obje ction to the R ail ro ad 's cros s-e xaminati on of the pl ainti ffs' expert, Dr. Douglas Pohl , regarding the absence of w arning s on a sbesto s prod ucts u ntil the 1 960 s, after D r. Poh l te sti fied to that effecton d irect ex amin ation. O n direc t exam ination , the fo llow in g colloquy occurred betw een c oun sel for the pla intiffs a nd D r. Poh l:

"Q. In 1969, Don Hyatt started wo rking at a job for the *** Railroad w here he wo uld rem ove a sbesto s pipe cove ring an d reap ply it, sometimes make t his mud that you' ve talked about and those sorts of acti viti es. What i s your opinion, sir, based upon
a reasonabl e degree of medi cal cer taint y as to whether it was gene rally known by 1969 that t

hose ty pes of act ivities car

ried a risk of as bestos di sease? A. Of cour se it w as. Th e w arning s we re starting to go on p rodu cts in 1964. So, clear ly , indus try

was well aware of t

he dangers and they

were actual ly

putting warning label s on the prod ucts. T he pr oblem wa s and wa s reco gnize d that if not all the products had the warni ngs or the products were deli vered to t he workers without warnings– Q. L et m e inte rrup t you th ere, s ir." The Railroa d did not obj ect o r ask that D r. Po hl's an sw er b e stric ken

. After the direct
exam inati on end ed, the Railro ad co ndu cted a brief c ross-e xam ination of D r. Poh l with respect to his cre dentia ls, his po ssible bias as a hired expe rt witne ss w ho tes tifies prim arily on b ehalf

of p laintiffs , his lack of sp ecific knowledge of the plaintiffs' specifi c hist ories of exposu re and medical c onditi ons, and ot hermatter s unrel atedto the product-warni ngs iss ue. On redir ect, counsel for the pla inti ffs questi on ed Dr. Pohl only on i ssues el icit ed by t he Railroa d on cr oss-ex amin ati on. On recross-examination, t he Railroad stated as foll ows:

### 22

"One last area, You r Hono r. You me ntioned, Dr. Pohl, that when y ou talke d about the scientif ic lit eratur e[,] warnings from manufactur ers di dn't come in unti l the 196 0[]s a nd ea rly '70[] s–" At that time, t

he att orney

for the pl ainti ffs objected on the basis t hat the questi oning violat ed the circuit

court's orde r in limine . The attorney for the Rai lroad argued that the plaintiffs opened the door to thi s questi oning by el iciting informat ion on the warnings iss ue
o n direct. How ever, he did not make an offer of proof. From the record, it appears tha t counsel was going to r eite rate what Dr. Pohl had t esti fied t o o n direct , tha t manufacturers began to putwarnings on their pr oducts i n the 1960s. We can only gues s what the r emaining porti on of counsel's que sti on was going to be. This, a gain, highli ghts the importance of making an adeq uate offer of proof . "When a part

y se eks to have a

reviewing c ourt det ermine whetherth e tri al court ' s e vi den ti aryru li ngs imp rop erly restrict ed the examination of a witness, the rec ord m ust be clear re gard ing w hat the witn ess'[s] tes timon y wou ld have bee n." Holder v. Ca selton , 275 Il l. App. 3d 950, 955 (1995). The purpose and i mportance of an offer of proof have been described as follows:

" '[O]ffers o f pro of are desig ned to elimin ate such specul ation and not only to give t he tri al court t

he oppor t unity

to bett er unders tand the nature of the proffe red evidence–and

thereb y reevalu ate its prio r ruling –bu t also to give c ourts of revie w the opp ortun ityto se e pr eci se ly th e nature of t

he e vi den ce t

he appe ll ant

comp lains the tri al court improperly

excluded.' " Holder , 275 Il l. App . 3d at955 (quoti ng People v. Land , 241 Ill. A pp. 3 d 10 66, 1 086 (19 93) ). Because the Rail road fai led to make an a dequate offer of proof at t

he trial, this court cannotkno w th e exa ct natu re of th e evid ence th e Rai lroad claims the circuit court
erroneous ly

excluded. See Holder , 275 Il l. App. 3d at 956 . We declin e to speculat e about what question co unsel w as attempting to a sk Dr. Pohl an d wh at Dr. Poh l's testimon y wou ld

### 23

have been. Accordi ngly , we have no basi s upon which to conclud e thatthe circuit court erred in exclu ding the rec ross-e xam ination of D r. Poh l. 9. Excludi ng Evidence of Customs and Pr acti ces of Other Companies or Indust ries The Railro ad arg ues th at the c ircuit cour t erred in excludi ng evidence of cus toms and pr acti ces of other c ompanies or industri es in deal ing with t he dangers as sociat ed wit h asbest os atthe time of the plainti ffs' employment. The circui t court granted the pl aintiffs' motion in limineto ex clud e this evid enc e. However, the Railroad did not make any offer

of proof regarding thi s evidence

. As explained a bove with regard to t

he evidence of

the la ck of warnings on asbe stos- contai ning product s, t here is no way for t

his co urt to revi ew the prop riety of the circuit court 's rul ing on this issue because there i s no way of knowing what the evi dence would have shown. Accordi ngly , we find this i ssue waived.

10. Allowing Evi dence of the Diagnos is of a Nonplaintiff The Railroa d argues t

hat the circuit court

erred by allowing e vidence of t

he spec ific diagn osis of

a plai ntiff

not involved in the tri al during the pla inti ffs' cross- examinati on of the R ail ro ad 's exp ert ra dio log ist, B ren t Ha rriso n, M .D. O n di rect e xam inati on, D r. H arri son test ifie d that ba sed on his r eview of the pl ainti ffs' ch est X ray s, t hey di d not tr

uly have the asbest os-rel ateddiseas e with which they had be en diagnosed by Dr. Schonf

eld. During
cross- examinati on, counsel for the pla inti ffs est ablis hed that Dr. Harri son had been acquaint ed with defense counsel for sever al y ears. Counsel then s tate d to Dr. Harr ison that he wished to r eview the di agnoses set forth i n Dr. Harri son's report s with regard to other injur ed claim ants referre d to Dr. Harri son by c ounsel for the Railroad. The Railroad objec ted
on the b asis o f rel eva nce , and the c ircu it cou rt ov erru led th e ob jectio n. The Railr oad request ed a con tinuing objec tion, w hich th e circu it c ourt noted. Counsel for t he plai ntiff

s then proceed ed to verify with D r. Ha rrison th at his rep orts on se veral o ther inju red cla iman ts stat ed, "[T]here i s no evidence of acti ve diseas e and nothi ng to suggest previous occupati onal

### 24

exp osu re." Dr. Harri son answered ea ch lea din g questi on in the a ffirmat ive but ke pt i nterj ecti ng that t her e w as m ore in th e rep orts' su mm aries than cou nse l wa s su gge sting

. Counsel for the plaintiffs then asked the s ame q uestion abo ut Dr. Harrison's repo rt on Daniel Ho gan, a non plaintiff assoc iated w ith a pre viou s trial gro up in this m atte r. Dr
. Harrisonagain ver ifie d that he had reached t he same conclus ion–that "ther e is no evi dence of acti ve diseas e and nothi ng to suggest previous occupati onal ex p osure "–bu t again inte rject ed t hat the re was more written in Mr. Hogan's summary than counselfor the plaintiffs had read

. Co unse l then sta ted, "R ight, because Dan Hog an had cancer an d had p art of his lung removed, i sn't that t rue?" The Railroad then obj ected, agai n on the basi s of relevance. The circu it court did not ru le o n this object ion, and the questioning continued
conc erning anoth er claim ant. According to th e R ail ro ad , th e c irc ui t co ur t sh ou ld ha ve su sta in ed th e R ail ro ad 's object ion and s tricken the qu estion c once rnin g Mr. Hogan from the re cord. However, the plaintiffs correc tlypoint out that t he Railr oad did not properly preser ve this error

for revi ew because it fa iled to obtain a ruli ng on its object ion. See Harris Trust & Savin gs Bank v. Abraham -Zwirn , 314 Ill . App. 3d 527, 540 (2000) (c iting People v. W alle r , 67 I ll. 2d 381, 386 (1977)). In add ition , we may con si der th is is sue wai vedpur suantto Il li noi s Supr eme Cou rt Rule 341(h)( 7) (210 Il l. 2d R. 341(h)(7) ), beca use the Rai lroadcite s no authori ty for its posit ion. See also Pia sa M oto r Fu els v . Ind ustr ial C om m'n , 368 Il l. App. 3d 1197, 1205 (200 6). A ccord ingly, we find th at the R ailroad has w aived this issue on ap peal. Mo reover, "[a] re viewing court wil l grant revers al based

on ev identia ry rulings o nly when the error was substantial ly prej udicial and affected the outcome of the trial ." Bachman
v. General Motors Corp. , 332 I ll. App . 3d 76 0, 785 (200 2). "T he bu rden is on th e party seeking reversal to est ablish prejudice. " Bachman , 332 I ll. App . 3d at 785. We do no t belie ve that the Railr oad has met its burden to establi sh such p reju di ce . T he R ail ro ad 's

### 25

content ion in this reg ard is th at M r. H og an 's cond ition bo lstered th e plain tiffs' claim s of th eir all eged fear of cance r. However, e ven absent t he questi on from counsel r egarding a
no np lai nt iff's canc erou s con dition, th e Ra ilroad in trodu ced c redible evide nce, in the form of expert testimo ny, that a pe rson w ith asbe stosis is at an in cr ea se d r isk of

ca nc er . A cc or di ng ly,
we cannot find that the questi on affected the outcome of the trial, and we decline to reverse the judgment of the circuit court on this basis. 11. Excludi ng Evidence of Other MedicalConditions of the Pla inti ffs The Railroa d also cl aims that the ci rcuit

court er red when it gr anted the plaintiffs' motion in limine to exclude evidence of thei r medicalconditi ons that were not all eged to be asbest os-rel ated. However, the Railroad fai ls t o cite to the record t o direct this court t o any offerof proof made bythe Railroa d atthe trial r egarding e vidence of any of the other medical conditi ons it soug ht to ha ve ad mitted . This is a violati on o f Illinois S upre me C ourt R ule 341(h)(7) (210 Il l. 2d R. 341(h)(7) ), which r equ ires thatthe argument porti on of the ap pe lla nt 's brief in clude citation o f the p ages of the record relied o n. In ad dition, w e note that the Rail road' s brie f incorr ectl y des cribes the ci rcuit court' s ruling. Th e circuit court gran tedthe pla inti ffs' motion in limine to exc lude " any refe rence or ev idenc e that an y plaintiff suffered from any dis ease othe r than those cl aimed herein unless defendant can first lay a proper foundation that the othe r illness or

disease is connected to th e pla intiff's
curre ntly clai med

illn es s o r s

ymp to ms ." (Emphasi s added.) The circui t court 's r uling was
a correct refle ction of

the law. Th e I ll in oi s Supr eme Court has hel d that s uch a foundati on is necessary before i ntroducing evidence of ot her inj uries . See Voykin v. Estate of DeBoer , 192 Ill . 2d 49, 59 (2 000 ). With out an adeq uate o ffer o f pro of, ne ither the circuit court nor this court has any way of knowing whether the R ailr oad coul d estab lish an a dequ ate foundati on for the e vidence i t sought to int roduce or whethe r expert testimony was n ecessary to establ ish the relations hip between t he plai nt iffs ' compla ints and thei r other injuries and

### 26

conditi ons. See Voy kin , 192 Il l. 2d at 5 9. Hen ce , w e find th is issue w aived with regard to any evi dence for which the re was no offe r of p roof and for w hich th e Ra ilroad fails to cite to th e rec ord

. Although waive d for a fa ilure to cite to the record on appeal, our rev iew of the record establ ishes that the Railro ad did attem pt to ask Mr. Hyat t on cros s-examination whether he has high blood pr essure. The plaintiffs obj ect ed, citing the circuit court's order in limine which requir ed that

a proper foundation be est ablis hed fo r the admi ssion of e vidence of another medical condition. During a si debar, t he Railroa d explai ned to the circuit court that it wished to ask M r. Hyatt wh ether a nyone h ad ev er told h im his high bloo d pre ssure c ould be attributed to his shortness of breath and whether he was fol lowing his doctor' s advice abouttaking medi cati on for high bl ood pressur e. The circuit co urt ask ed the Railro ad if it had any wit

ness who could attribute high bl ood pressur e to shortness of breath. The Railroad repli ed: "I don' t know, Your Honor. I was jus t going to ask h im if a nybod y ever told him tha t." The plaintiffs poi nted out t hat the Railroa d had discl osed no expert opinion on th e matter. The circui t court sustained the obj ecti on. We find that this was properbecause the Railroad w as unab le to establish the requisite fou ndation un der Voy kin . 192 Il l. 2d at 59. 12. Denying the Rail road' s Motion to Quash t he Subpoena of Lyndl e Burton The Railroa d argues t

hat the circuit court

erred by denying the R ailroad 's motio n to quas h the p laintiffs ' Illinois Supreme Court Rule 237 (210 I ll. 2d R. 237) subpoena, which compelledth e te sti m on y of th e R ail ro ad 's em plo yee, L yndle Bu rton
. Rule 237(b) pr ovides that the appe aranc e at a trial o f a pe rson w ho at th e time of the trial is an officer , dir ector, or employe e of a party may be requir ed by s erving t he party w ith a notic e designating the pe rson who is re quiredto appear. 210 Ill . 2d R. 237(b) . "Compell ing the a ppearance of a party

at tri al is a matter for t

he sound disc reti on of the trialcourt, and the cour t's power to ord er a party to app ear sh ould only be e xercis ed fo r a go od ca use a nd in such a ma nner that a p arty

### 27

may not be subj ect t o harassment , oppres sion[, ] orhardship." Pickering v. Owens-Corning FiberglasCorp. , 265 Ill. A pp. 3 d 80 6, 81 6 (1 994 ). According to the Rai lroad, compelli ng Burton' s appearanc e was error be cause Burton
was not hir ed until2003 and thus had no re lev an t in fo rm ati on re ga rd in g t he R ail ro ad 's industrialhygi ene pract ices and procedures during the plaintiff s' emp loymen t from 193 9 to 1979. We note that t

he plaintiffs di d not fil e a respons e to the motion t o quash and that t he t ranscr ipt of the fi nal pret rialconference, which accordi ng to the doc ket sheet is when the circuit court

heard argument s on the mo tion to q uash , is not a p art of th e reco rd on appe al. Therefore, we have no way of knowing the jus tifi cati on given by the pla inti ffs forcompelli ng B ur to n's atten dan ce a t the t rial. However, our revi ew of the recor d reveal s that Burton was call ed as an advers e witness at the tri al purs uant to s ecti on 2-1102 of the I llinois Code of Civil Procedure ( 735 ILCS 5/2-1102 (West 2004)) . On cross- examinati on, he testified to his qualif icat ions as an exp ert witness in the f ield of industrial hygiene an d explaine d the nature of the fi eld to t

he jury. He testi fied that the purpose of an i ndustri al hy gienis t is to ensur e a safe workplace and t

hat he was the fir st hy gienis t to be hired by the R ailroad desp ite the fie ld having been in existence since at least the 1940s. Burton further test ified that he was familiar with t he "AA R docum ents," which is a group of doc umen ts that were admitt ed into e vidence wit hout objec tion. The se do cum ents consistof various letters and meet ing notes obtaine d from the Associ ation of American Railroa ds (the AA R), of which the Railroad is a member. Without object ion, c ounsel for

the plaintiffs reviewed these documents wit h Burton, and based on thes e document s, B urton opinedth at the Railroad knew that asbestos could potential ly be hazardous in t he 1930s. Burton furthe r opin ed tha t the R ailroad 's failure to imple men t the rec om men dation s set fo rth in the AAR documents, su ch as ai r t es ting, wetting d own asbest os to mini mize dust, and the
use of respi rator s, would have bee n an unreasonabl e safety pr acti ce at t he t ime that these

### 28

rec ommendations were issue d. Furt hermore, Burton expla ined to t he jury the c once pt o f byst anderexposu re . B ased on the f oregoing t esti mony by

Burton, we cannot

saythat t

he circuit court' s order c ompelli ng his attendance at the trial p ursua nt to Illinois Suprem e Cou rt Ru le 237 was an a buse of d iscretion . Burto n clea rlyhad informat ion rel evant t o the is sues of lia bili ty in thi s acti on. 13 . P ro hi bi tin g t he R ail ro ad Fr om C ro ss -E xa m in in g D r. B re yer on th e " G itli n S tu dy" The Railroa d next argue s that t he circuit court

erred when it

prohibi ted the Railroa d from cro ss-e xam inin g th e pla intiffs' ex per t, Do nald A. B reyer, M .D., concerni ng the "Gitlin Stu dy." "De cisions of the trial cou rt on the adm ission o f evid ence will not be dist urbed absentan abuse of di scre tion." Bow ma n v. Univers ity of C hicag o Hospita ls , 366 Il l. App. 3d 577, 587 (2006). "A court abuses i ts di scret ion when no reasonabl e person would agr ee with the trialcourt's deci sion." Bowman , 366 Il l . App. 3d at 587. "In general, crossexaminati on of an expert witness wit

h materi al from 'a r ecognizedtext or treatise i s proper whe re either the court ha s taken judicial no tice of the autho r's competenc e [citation] or, absentconcessio n by the witness, the c ross-exam iner proves the text or treatis e is authori tative [citati ons].' " Bowman , 366 I ll. App. 3d at 587 (quoting People v. J ohnson , 206 Ill. App. 3d 875, 879 (1990) ). "The aut hor' s competence is establi sh ed if the judge t akes judici al notice of it[] o r if it is estab lished b y a witn ess expert in the subject ." Darling v. Charleston Comm unity Memorial Hospital , 33 I ll. 2d 326 , 336 (19 65)

. Here, the ci rcuit

court gr anted the plai ntiff s' mot ion i n limineto excl ude "[a]ny referenc e to a p ubl icatio n by G itlin, et al. , unle ss defendant can fir st establis h, outs ide t he presence of the jury, an ac cepta ble fo und ation for referenc e to the article in the pres ence of the jur y. " The only

offer of proof

made by the Railr oad was during t he cross- examinati on of Dr. Brey er, who tes tifi ed via vi deo evidence de posit ion. Dr. Breyer testified that he i s a diagn ost ic radiol ogist

and a "B-reader " who is certifie d by t he NationalInstitute of

### 29

OccupationalSafety an d H ealth

. As Dr . Bre yer ex plain ed, a B-reader c onducts si de-by -side comparisons of pati ents' chest X ray s with st andard fi lms that refle ct va ry ing degr ees of exposu re to asbes tos. Dr. Brey er tes tifi ed that he conducted B-r ead examinat ions of al l thr ee plaintiffs'che st

X ra y s. On ea ch p la in ti ff' s B- read, Dr. Breyer test ifie d to varying degree s of abnormalities consist ent with asbestosis. On cross- examinati on, the Railroa d asked Dr. Breyer if he wa s fam iliar with the G itlin S t ud y. Dr. B reyer testified that he had h eard o f the stu dy and h ad rea d the a rticle abo ut a yea r b ef or e h is t es tim on y. Dr. Brey er veri fiedthat t he arti cle on the Gitlin Studyappeared in the Jour

nal of Aca demic Radiol ogy, which is a pee r-re viewed journa l. Dr. Breyer admitt ed that when he was publ ishi ng in his academic car eer, he reli ed upon various review arti cles as sou rce m aterial. The Railroad t hen asked Brey er if t

he Gitlin Studyis the ty pe of article that he wo uld have look ed at if he w as go ing to e xpre ss an o pinion or w rite an a rticle
on the sam e topic . Dr. B reyer ans we red tha t he co uld o nly saythatit is an article in a peerreviewedjournal . Dr. Breyer then e xplaine d that it was his unde rstanding that the au thors of the Gitl in Study

had compared some B-reade r findi ngs with their own findings and had concludedthat t

hese B-reade r radi ologis ts had a hi ghernumber of positive findings than the y did. Dr. Breyer did n ot recall the exact figu res. The article itself does n ot appear in th e
reco rd o n ap pea l. Based on the fore going, we cannot saythat it was an abuse of di scret ion to exc lude the cross-exam ination of D r. Breyer conc erning the G itlin Stud y. A reas onab le pers on co uld findthat the Railr oad's offer of proof did not establi sh the authors ' compet ence or the authori tative natu re o f the artic le. We recognize that Dr. Breyer admitted that the article was publis hed in a p eer- rev iew ed jo urn al. H ow eve r, t he authors of the articl e were not even identi fied, and we decline to hold that proo f that a study

is publ ished i n a peer-r eviewed journalestablishes, as a matter of law, the requis ite f

oundation. Accordingly , we will not

### 30

reverse the judgment of the circuit court on this basis. 14 . E xc lu di ng Te sti m on y R eg ar di ng th e " H all ey S tu dy" Fi na lly, the R ailroad argu es that th e circu it court e rred w hen it preclude d the Rail road from elic iting test imonyregardi ng the "Hall eyStudy ." Accordi ng to the Rai lroad' s brie f, the Railr oad atte mpted to el icit test imony r egarding t he Halley

Studyfrom the pl aint iffs ' industrialhygi ene expert , Dr. MichaelEllenbecke r, on cr oss-exami nation, as w ell as the R ail ro ad 's own industri al hyg iene e xper t, Dr. Fr ancis W eir, on d irect ex amin ation. B oth expe rts test ifie d via vide o evidence depos iti on. Although t he R ailroad cites to the record whe re the circ uit cou rt' s ruling can be found regarding the c ross- examinati on of Michael Ellenbeck er, it fa ils to cit e to the rul ing regar ding Dr. Weir and fai ls t o cite the act ual test imonythat w as strick en fro m the video evide nce d epos it ions of the experts and served
as the Railroad 's offer of pro of. A gain , t his is a clear violation of Illinois Su preme C ourt Rul e 341( h)(7) (2 10 Ill. 2d R. 34 1(h)(7 )), and w e cou ld con sider th is issue w aived on th is bas is. De spite th e Ra ilro ad ' s c le ar vi ol at io n of

Rul e 3 41(h) (7 ), we have scoured th e record for the te sti mony and argument ne eded to resol ve the i ssue on appeal . Our revi ew of the record revea ls that D r. Ellenb ecke r testified on d irect ex amin ati on th at he to ok in to consider ationa study , ent itl ed the "Mill ette Study ," i n renderi ng his opi nion that the pla inti ffs
were ex pose d to sig nific ant le vels of as bestos in the cours e of thei r employment with t he Railroa d. Millette had si mulated se veral acti viti es invol ving asbes tos t hatwe re occ urring in the rai lroad industry

during t he rele vant time period and had measured the expo sure le vels for those ac tivities. On cross-exam ination, the Railroad asked D r. Ellenbecke r whether he
was aw are of the Halley Study , a study that reported t

hat an inspector in Huntington, West Virgini a, had takena measu re ment of exposure at a ra ilr oad facil ity during t he mixing of asbest os mud and had determine d that t here was an accept able expos ure level. Dr.

### 31

Ellenbecke r test ifie d, over the pla inti ffs' object ion, t hat he wa s aw are of

the stud y and tha t, in his opinion, the stud y reached an e rroneous c onclusion. A t the trial, the circuit court sustained the pla intiffs' ob jection to cross- examinati on of Dr. Ell enbeckerusing the Halley Stud y, and this te stimo ny wa s cut fr om the vid eo tha t was show n to the jury at the trial. During the Railroad's cas e in chie f, the Railroa d request ed that it be pe rmitt ed to rea d to the jur y t he prior test imonyof Dr. Weir (f rom the trial of

a prior group of plaintiff s in this cause) due to D r. We ir's unav ailability. Du ring the prior trial, Dr. Weir t esti fied that he had conducteda lit eratur e revie w which included t he Halley

St ud y. He the n described the report and its findings , expl aining that it wa s pub lished b y a public agen cy. At no time d id D r. We ir test ify that he consider ed the author t o be competent or the st udy t o be authoritative. Upon objec tion in the pri or tr ial, the Railroa d assert ed that Dr. Weir had not

reli ed on the Hall ey Studyin form ing h is opinions and that the Hall ey St

udy was bei ng offered as c ircumst antia l pro of that t he Rai lroad had k now ledge of th e study. At the prior trial, the circuit court
ove rrule d th e ob jectio n to this te stim ony, a llow ing Dr . W eir's te stim ony. The plaintiffs obj ected t o the rea ding of Dr. Wei r' s t es timon yat

th e tri al und er

re vi ew,
on the basi s of hears ay, and the ci rcuit court over

ruled th e obje ction. P rior to the circuit
co ur t's ruli ng on the obje ction, counsel for the Railro ad state d, "Th e H alley mate rial wo uld also have to be excluded. " Cocounsel for th e R ail ro ad th en sta ted : "W e ta lk ed ab ou t H all ey. You alr ea dy r ul ed th at o ut in El len be ck er 's te sti m on y, presuming your r ulin g is th e sa me ." Following the ci rcuit

court' s ruling that t

he testimony coul d be read t o the jur y, the fol lowing colloquy between counseland the ci rcuit court occ urred: "THE COU RT: Okay. Anything el se before t he jury comes in ? You n eed

ti me to cle an that

up? MR. GAV IN [counsel for the pla int iffs ]: Y es. I mea n I fee l like I ne ed to make a record on a l ot of this Dr. W eir testimony because there is a lot of stuff in h ere

### 32

that–t here are pages of dis cussion a bout the Hal ley

and stuff. TH E C OU RT : Ok ay. You agree to take that ou t? MR. KUR Z [counsel for the Rai lroad] : Well, I agree I 'l l abide by y our rul ing. TH E C OU RT : Yo u agr ee it's com ing o ut? MR . KURZ: I think i t shoul d come in, but I underst and your

ruli ng. THE COURT: Why don't the two or

three of you t ake a few minutes, see what you can e xcise out

of there . If you don't

agree, I' ll r

ule. M R. K UR Z: T hat's fine." The record r eflec ts th at the Railroad read to the jury the testimony of D r. Weir, excludi ng his test imony about the Hall eyStud y, withou t furthe r argu men t on the issue o f its ad m iss ib ilit y. We wi ll first a ddress the circuit court's deci sion to exclude the Railroad' s crossexaminati on of Dr. Ell enbecker r egarding the Hall ey St udy. The Railroad d id not obtain D r. El len be ck er 's concessio n that the H alley Study was an au thoritative source of inform ati on in th e f iel d o f in du str ial hyg ien e o r th at t he au th or of th e H all ey S tu dy w a s com peten t to renderthe conclusi ons that were rendered in that s tudy . See Bowman , 366 Il l. App. 3d at 587 (quoti ng Johnson , 206 I ll. App . 3d at 8 79); Darling , 33 I ll. 2 d at 3 36. In fact, D r. Ellenbecke r testified to just the opp osite. D r. Ellenb ecke r testified that t he H all ey St udy reach ed an erron eous conc lusion . In add ition, ev en if Dr. Weir' s testimonyconcerni ng the Halley Studyhad been admitt ed, Dr. Weir did not t esti fyabout the authori tative nature of the Halley St ud y. In fact , the Railroa d conceded duri ng Dr. Weir' s testimony at the fi rst t rialthat Dr. Weir's test imony r egarding t he Ha lley Study w as no t offe red as a sou rce tha t Dr. W eir reli ed upo n in rea ching his opi ni on s in th is m att er . A cc or di ng to th e R ail ro ad , D r. W eir 's test imonyregardi ng the exi stence of the Hall ey St

udy was bei ng offered i n the first trial on ly
as circumst antia l evide nce that the Railroad might have had knowledge of its conclusions.

### 33

A cc or di ng ly, we find that th e c irc ui t co ur t's ruli ng was not an abuse of di scret ion because a
reaso nable person coul d reach the same conclus ion that the Railroad agai n fail ed to laythe requis ite f

oundation to use the Hall ey St udy for the purpos e of cross -examinat ion. We now turn to t

he exclusi on of Dr. Weir' s testimony about the Hal ley S tu dy. The circuit court cl early

stat ed that

the parties s hou ld exc ise all the testimo ny that the y agreed to excise from D r. Weir' s te sti m on y a nd that i f there was anyt hing they

did not agr ee on, t

he circuit court would r

ule. The Railroad t

hen read Dr. Weir 's t esti mony to the jur y, excludi ng his test imony about

the Hall ey St

udy, without any

fu rth er ar gu m en t. A cc or di ng ly, we find that the Railro ad fa iled to p rope rly preserv e any alleg ed erro r on th e part o f the c ircuit court in ex clud ing Dr . W eir's te stim ony o n th e H alley S tud y, by stipu latin g to its ex clus ion

. [Th e pr ece din g m ate rial i s no np ub lisha ble un der Su pre me Co urt Ru le 23 .] CONCLUS ION For the for egoing rea sons, t he judgment of t

he circ uit cour

t is affirmed.

Affirmed.

WE LC H an d W EX STT EN , JJ., concur.NO. 5-06-0618 IN T HE AP PEL LA TE C OU RT OF ILLIN OIS

FIF TH DIST RICT

___________________________________________________________________________________ XON BLACKB URN et al. , ) Appeal from the ) Circui t Court of Plaintiffs, ) M ar io n C ou nt y. ) and ) ) DELBERT COPP LE, CARL HEINRI CHSMEYER, ) and DONALD HYATT, ) ) Plaintiffs- Appellees, ) ) v. ) No. 04-L-25 ) IL LI NOIS CENTRAL RAI LROAD COMPAN Y, ) Ho nora ble ) Patrick J. Hitpas, De fend ant-A ppella nt. ) Judge, presi ding.

___________________________________________________________________________________ Opinion Filed : January 22, 2008

___________________________________________________________________________________ Justice s : Honorable Stephen L . Spomer, J.

Honorable Thomas M. Welch, J. , and Ho nor able Jam es M . W exs tten, J ., Concur

___________________________________________________________________________________ Atto rneys Thomas R. P et er s, MarkR. Ku rz, Gu ndlac h, Le e, Eg gm ann, B oyle & Roessler, 5000 for West Main Street , Box 23560, Bell evill e, IL 62223-0560 Appell ant

___________________________________________________________________________________ Attorney Willi am P. Gavi n, Gavi n Law F ir m, #17 Park Place Pr ofessi onal Centr e, Bell evill e, for IL 62226 Appellees

___________________________________________________________________________________