Illinois Official Reports 

Appellate Court

Russo v. Corey Steel Co., 2018 IL App (1st) 180467

Appellate Court 

Caption

FRANK RUSSO, Plaintiff-Appellant, v. COREY STEEL 

COMPANY, Defendant-Appellee.

District & No. First District, Third Division

Docket No. 1-18-0467

Filed December 28, 2018

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 17-L-03425; the 

Hon. Irwin J. Solganick, Judge, presiding.

Judgment Reversed.

Counsel on

Appeal

Thomas A. Kelliher, of Horwitz, Horwitz & Associates, Ltd., of 

Chicago, for appellant.

John J. Piegore and Brian Sanchez, of Sanchez Daniels & Hoffman 

LLP, of Chicago, for appellee.

Panel JUSTICE HOWSE delivered the judgment of the court, with opinion.

Presiding Justice Fitzgerald Smith and Justice Ellis concurred in the 

judgment and opinion.
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 OPINION 

¶ 1 Plaintiff, Frank Russo, filed a complaint against defendant, Corey Steel Company, to 

recover damages for injuries he sustained when a crane struck a lift in which plaintiff was 

working at defendant’s plant. Defendant admitted liability, and the matter proceeded to a trial 

before a jury solely on the issue of damages. Following trial, the jury awarded plaintiff a total 

of $9.9 million in damages. Defendant retained additional counsel, and as a result, the trial 

judge who presided over the trial recused himself from the posttrial proceedings. Defendant 

filed a posttrial motion for a new trial on several grounds. The posttrial judge granted 

defendant’s motion for a new trial based solely on defendant’s argument the trial judge 

erroneously allowed one of plaintiff’s experts to offer an opinion on plaintiff’s need for one 

future surgery. The posttrial judge denied defendant’s posttrial motion on the other grounds 

raised in the motion. Plaintiff appeals, arguing the posttrial judge should not have reversed the 

trial judge’s ruling on the admissibility of the expert’s opinion about the future surgery.

¶ 2 For the following reasons, we reverse. 

¶ 3 BACKGROUND 

¶ 4 We initially discuss only those portions of the proceedings below necessary to understand 

the posttrial judge’s order granting defendant a new trial and the resolution of plaintiff’s appeal 

of that order. Additional facts necessary to resolve any other issues will be discussed in 

conjunction with our resolution of those issues. 

¶ 5 In July 2013, plaintiff was working as an electrician at defendant’s steel beam 

manufacturing site when a trolley crane used to move steel beams struck the lift plaintiff was 

using to reach overhead light fixtures. Plaintiff testified he was using a man-lift. The lift has a 

cage, which plaintiff estimated to be 24 to 30 inches deep and approximately 48 inches wide, 

containing a control panel. Defendant’s employee was operating the crane when a portion of 

the crane came into contact with a portion of the lift. Plaintiff testified that as a result of the 

impact he received injuries to his finger, elbow, lower back, hip and shoulder. 

¶ 6 Dr. Jeffrey Coe testified as a witness for plaintiff. Dr. Coe is licensed to practice medicine 

in all its branches. In addition to his M.D., he has a Ph.D. in occupational medicine. Dr. Coe 

testified occupational medicine largely deals with assessment and rehabilitation to get people 

back to work. He stated he deals with specialists in various areas of medicine to try to get basic 

information. He works with orthopedic surgeons on an almost daily basis. Dr. Coe looks at 

orthopedic injuries and classifies them by type and severity regularly, “basically daily in [his] 

practice.” Dr. Coe testified that a big part of his work, on a daily basis, is looking at injuries and 

telling his patient what type of pain and/or symptoms they may experience in the future. 

Occupational medicine involves training in many different areas of the body, “particularly 

areas that are prone to injury; so things like orthopedic system, neurological systems, the 

lungs.” He also teaches occupational medicine to other doctors and health professionals. Dr. 

Coe later testified that he does not do surgeries himself, but he sends patients to surgeons then 

he gets the patients back after surgery. Later, on redirect examination, Dr. Coe testified he 

teaches medical students about injuries to the shoulders, back, and hip. 

¶ 7 Dr. Coe testified that plaintiff’s right hip was examined a week to 10 days after the 

accident. At that first test, plaintiff had some minor arthritic changes to his hip. Dr. Coe 
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testified at that time there was “nothing severe. There’s no severe breakdown in the hip.” The 

mild arthritis would not cause hip pain. Dr. Coe learned of some prior injuries plaintiff 

suffered. Dr. Coe testified that, after plaintiff’s prior injuries, plaintiff “went back to full work 

activity as an electrician, at something that’s been described as a very heavy physical demand 

level.” Plaintiff had hip surgery in July 2014. Dr. Coe read an operative report for plaintiff’s 

hip. As a result of the accident, plaintiff sustained a labral tear. Dr. Coe opined to a reasonable 

degree of medical certainty that plaintiff’s right hip was injured from the accident. Dr. Coe 

examined plaintiff in March 2016. At that time, plaintiff told Dr. Coe he was still having hip 

pain, which plaintiff described as a constant aching pain. Plaintiff had reduced range of motion 

in his hip in two of three planes of motion. Dr. Coe testified plaintiff took a “functional 

capacity examination” in the beginning of 2015 that concluded plaintiff could return to work at 

a medium physical demand level with some restrictions. Plaintiff reported pain in his hip while 

completing the test. Dr. Coe testified to a reasonable degree of medical certainty that the 

accident in July 2013 “was the cause of the condition of [plaintiff’s] right shoulder, right hip, 

and lower back” as Dr. Coe found them when he examined plaintiff. 

¶ 8 Dr. Coe was asked if he had an opinion, to a reasonable degree of medical certainty, as to 

whether plaintiff will need future hip surgery. Dr. Coe testified that he did, and defendant 

objected that an adequate foundation had not been laid. The trial judge instructed plaintiff to 

lay a foundation, whereupon plaintiff asked the following questions, and Dr. Coe gave the 

following answers: 

“Q. Have you reviewed records from Dr. Shah, from Dr. Rubinstein, from physical 

therapy regarding the progression of this hip with post-traumatic arthritis after the 

crane hit the JLG? Just have you reviewed them? 

 A. Yes, I have. 

 Q. And do you, in the course of your practice with employers, employees, or 

patients, render opinions from time to time regularly about whether someone will need 

a surgery? 

 A. Yes. 

 Q. And even hip surgeries? 

A. Yes.”

Defendant continued to object to the foundation for Dr. Coe’s answer to the question of 

whether plaintiff will need future hip surgery. In a sidebar outside the presence of the jury and 

the witness, defendant told the trial judge that in the medical records Dr. Coe reviewed, there 

was no mention or recommendation by any doctor that gave an opinion that plaintiff needed a 

surgery. Plaintiff responded that Dr. Coe gave the opinion about future surgery in his own 

report. Plaintiff read the relevant portion of Dr. Coe’s report, which states: “In addition, at right 

hip surgery, Mr. Russo was found to have chondromalacia of the acetabular labrum. This 

finding represents a significant risk for accelerated breakdown of the right hip joint and would 

ultimately require right hip replacement at some point in the future.” (Internal quotation marks 

omitted.) 

¶ 9 After plaintiff discussed what Dr. Coe said in his report, the trial judge turned to defendant, 

who responded as follows: 

“MR. OLMSTEAD [(DEFENDANT’S ATTORNEY)]: Again, my issue is, in 

terms of the records that he’s reviewed, there was no opinion from an orthopedic doctor 
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that indicated that. He’s doing it on his own as an occupational medicine doctor, and I’d 

object to foundation on that.”

Defendant explained that plaintiff’s treating orthopedic doctor, Dr. Shah, could not relate the 

condition in plaintiff’s hip to the accident. The trial judge clarified with defendant that Dr. 

Shah did not have the opinion regarding surgery and that plaintiff was trying to elicit it from 

Dr. Coe, whereupon the following exchange occurred: 

“THE COURT: Which just begs the question, I suppose, at some basic level, so 

what? If Dr. Shah didn’t have the opinion, why does that preclude Dr. Coe from giving 

an opinion? 

MR. OLMSTEAD: No, I understand. And I’m just making my objection for the 

record. Dr. Shah is an orthopedic doctor that treated him—

THE COURT: Okay. That may affect the weight of Dr. Coe’s opinion as an 

occupational medicine expert. Perhaps it does. I don’t know. I don’t know if Dr. Shah’s 

opinion comes into this case without him being here, but perhaps it does. I don’t know. 

So that’s really non-responsive to Dr. Coe testifying to this, if it’s been properly 

disclosed.” 

Defendant agreed the opinion was disclosed and restated that his “argument is, in terms of his 

[(Dr. Coe’s)] background and his review of the medical records, there’s nothing in the medical 

records to support his opinion.” The trial judge responded, “that might be subject to some 

cross.” Defendant stated he was just preserving his objection for the record. The trial judge 

overruled the objection. 

¶ 10 When proceedings before the jury resumed, Dr. Coe testified it was his opinion to a 

reasonable degree of medical certainty that plaintiff needs “additional treatment that would 

include another hip surgery, and that that accident, as I learned of it, was a factor causing the 

need for additional treatment, including surgery.” When asked what type of hip surgery, Dr. 

Coe responded: “That, I can’t tell you. I’m not a surgical specialist. I hope I’ve made this clear 

to you here today. I’m a medical specialist. He does have ongoing pain. It is arising from his 

hip joint. If he were my patient, I would send him to a hip surgical specialist here in Chicago. 

It’s for the specialist to decide on the specific type of surgery. There have been those 

discussions in Mr. Russo’s case.” (Emphasis added.) Dr. Coe testified those discussions had 

ranged from arthroscopic surgery to replacing his hip. 

¶ 11 On cross-examination Dr. Coe testified that all of the opinions in his report were based on 

reviewing plaintiff’s medical records generated after the accident and examining plaintiff. Dr. 

Coe did not have any of plaintiff’s medical records from before the accident when he prepared 

his report. Dr. Coe relied on plaintiff’s recitation of his medical history, but he later received 

medical records that indicated plaintiff did not tell Dr. Coe about some prior medical 

complaints. Dr. Coe agreed that a record of a visit by plaintiff to Dr. Shah states that plaintiff 

had a right hip arthroscopy well before the injury. Dr. Coe testified Dr. Shah’s records do not 

address the question of whether plaintiff’s current ongoing right hip complaint of osteoarthritis 

is related to the July 2013 accident. Dr. Coe confirmed his opinion, that plaintiff may need 

further surgery in his hip, is because the accident aggravated the arthritis in his hip, but Dr. Coe 

does not know whether plaintiff’s ongoing symptoms are actually because of arthritis. Dr. Coe 

explained: “He [(plaintiff)] needs the surgery for us to tell what’s going on inside of his hip 

right now.” He also agreed that if the ongoing symptoms were caused by arthritis, he cannot 

say if the arthritis was from before or after the July 2013 accident. Dr. Coe would defer to the 
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opinion of Dr. Shah as to whether the cartilage deterioration could be related to the accident 

“[d]epending on what it looks like now.” Defendant attempted to show Dr. Coe a portion of Dr. 

Shah’s deposition, and plaintiff objected. After a sidebar outside the presence and hearing of 

the jury and witness, the trial judge sustained plaintiff’s objection. When cross-examination 

resumed, defendant asked the following question, and Dr. Coe gave the following answer: 

“Q. As to any further surgery that you opined Mr. Russo might need, you can’t say 

to a reasonable degree of medical certainty whether it’s more likely than not he will 

need surgery? 

A. Yes. That’s correct.” 

¶ 12 On redirect examination plaintiff asked Dr. Coe if Dr. Shah’s most recent records show 

that Dr. Shah is recommending injections into plaintiff’s hip to prepare for another hip surgery. 

Dr. Coe responded: “I generally, know that that was talked about. I don’t know that there’s a 

specific prescription for it.” 

¶ 13 Plaintiff also called Dr. Scott Rubinstein as a witness. Dr. Rubinstein is an orthopedic 

surgeon. Dr. Rubinstein saw plaintiff in August 2013. Plaintiff complained of right hip pain at 

that time. Dr. Rubinstein testified he was treating plaintiff’s hip from a diagnostic point of 

view, but the problem in plaintiff’s hip would require a hip arthroscopy, which he would refer 

to one of his associates to perform. Plaintiff continued to have hip pain after the surgery. In 

December 2013, Dr. Rubinstein ordered a “radiographic guided injection to the right hip.” The 

injection confirmed there was “some intraarticular pathology going on in the hip that is causing 

him symptoms.” Dr. Rubinstein testified that at the time of the incident plaintiff had a little 

mild arthritis, then he tore his labrum in the incident. Plaintiff then underwent surgery to 

remove the torn portion of the labrum. Dr. Rubinstein continued: 

“once you remove the labrum, which is unfortunately the only thing you can do in the 

type of tear [plaintiff] had *** you change the mechanics of the hip joint by altering 

things. *** [I]t then can lead to further wearing of the joint maybe at a more rapid pace 

than would otherwise happen because the alignment is a little different.” 

Dr. Rubinstein testified he thought the injury probably led to plaintiff’s mild preexisting 

arthritis progressing faster than it would otherwise. Dr. Rubinstein testified that in March 2017 

plaintiff received hip injections for diagnostic purposes to see if he needed another hip surgery. 

Dr. Rubinstein testified that in May 2017 he wrote a note in his records stating “It certainly in 

my opinion is related to his initial injury and needs to be taken care of.” (Internal quotation

marks omitted.) On the last page of the same note he wrote that plaintiff has pending requests 

for surgery for his hip and back from Dr. Shah and Dr. Fisher, respectively. Dr. Rubinstein 

stated plaintiff’s “back and the hip are more likely to give him more continuing discomfort as 

time moves on.”

¶ 14 Following trial the jury returned a verdict in favor of plaintiff and awarded $9,987,000.00 

in damages. The jury itemized the damages award as follows: 

 Loss of normal life experienced: $2 million 

 Loss of normal life to be experienced in the future: $3 million 

 Pain and suffering experienced: $1 million 

 The reasonable expense of medical care, 

treatment, and services received: $150,000

 The reasonable expense of medical care, 
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treatment, and services reasonably certain 

to be received in the future: $150,000

 The earnings and benefits lost: $387,000

 The earnings and benefits reasonably 

certain to be lost in the future: $1 million 

¶ 15 On September 22, 2017, defendant’s posttrial counsel filed their appearance. On October 

4, 2017, the trial judge recused himself “for the reasons stated in open court.”1 On November 

14, 2017, defendant’s new attorneys filed a motion for a new trial or in the alternative for a 

remittitur of damages. Defendant’s posttrial motion argued (1) the trial court improperly 

excluded a digital video of the accident, (2) the trial court improperly allowed opinion 

testimony that plaintiff will require future hip replacement surgery where no factual 

foundation supported that opinion, (3) no competent evidence supports the award of $150,000 

for future medical costs, (4) the amounts awarded for non-economic damages “fall outside the 

range of fair and reasonable compensation, are the result of passion or prejudice and/or shock 

the judicial conscience,” and (5) the total damages award “falls outside the range of fair and 

reasonable compensation, is the result of passion or prejudice and/or shock the judicial 

conscience.” In support of its motion for a new trial based on the allegedly erroneous 

admission of Dr. Coe’s testimony that plaintiff will need hip surgery in the future, defendant 

asserted that the defense had objected to that testimony at trial on the following grounds: 

(1) Dr. Coe was not competent to give that opinion, (2) there was no foundation for Dr. Coe’s 

opinion that plaintiff will require hip surgery in the future, (3) no doctor had ever testified 

plaintiff needs hip surgery, and (4) the doctor who treated the labral tear to plaintiff’s hip did 

not offer any opinion as to whether any future surgery was related to the accident. Defendant 

argued Dr. Coe’s opinion lacks foundation and is speculative. Defendant noted that during 

cross-examination Dr. Coe “admitted that he did not know the cause of Plaintiff’s ongoing 

symptoms in the right hip or whether they were related to the accident.” Dr. Coe also admitted 

plaintiff suffered from osteoarthritis before the accident and he did not know whether 

plaintiff’s ongoing symptoms were related to the arthritis or whether they were related to the 

labral tear. Defendant argued Dr. Coe’s opinion should have been excluded because “he could 

not testify to a reasonable degree of medical and surgical certainty that there is a need for 

future hip surgery or that such a need resulted from the accident.” Defendant also argued Dr. 

Coe could not give any factual foundation for his opinion, and his testimony failed to establish 

that hip replacement surgery is reasonably certain to follow. Defendant argued it was 

prejudiced because Dr. Coe’s testimony undercut its theory that plaintiff’s injuries from the 

accident cleared up within two years and no future treatment was necessary as a result of the 

 

1

Plaintiff filed a motion before the posttrial judge for an order transferring the case back to the trial 

judge for the purpose of placing on the record his reasons for recusing himself. According to a 

transcript of the hearing on that motion, no court reporter was present when the trial judge recused 

himself. In denying plaintiff’s motion to transfer the case to the trial judge to make an evidentiary 

record, the posttrial judge stated: “From reading your motion, it appears [the trial judge] recused 

himself because he had a conflict of interest with [defendant’s appellate attorneys] and that would 

impact on his ability to be fair and impartial in the case. *** [The trial judge’s] reasons for recusing 

himself are clear. Everybody says they know what the reasons are, and there’s no reason to send it back 

to him to conduct an evidentiary hearing.”
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accident. Defendant also argued “[t]his improper opinion led to and is part of the enormous 

damage award.”

¶ 16 At a hearing on defendant’s posttrial motion, defendant argued there was no factual 

foundation for Dr. Coe’s opinion. Defendant stated: “He [(Dr. Coe)] is not the treater. Dr. 

[Shah] was the treater. There is nothing in Dr. [Shah’s] records about any future surgery, much 

less a future hip replacement.” Plaintiff argued there was testimony that the hip injury will 

continue to get worse over time. Plaintiff stated: “There was plenty of testimony. There was 

conflicting testimony on parts of that. The jurors made their determination, that’s not for us to 

set aside after the fact.” The posttrial judge asked what qualifications Dr. Coe had to render his 

opinion. Plaintiff responded Dr. Coe is a licensed medical doctor who teaches about workplace 

injuries; he routinely consults when people have injuries with regard to whether surgery is 

warranted; he “looked at everything and rendered the opinion, which he is allowed to do as a 

medical doctor.” The posttrial judge asked if Dr. Coe is an orthopedic surgeon and plaintiff 

responded he is not. The posttrial judge stated: 

“THE COURT: So you’re saying that a non-orthopedic surgeon is somebody who 

can—is competent to testify as to whether or not a patient needs surgery or can be dealt 

with in a nonsurgical or more conservative manner than requiring surgery?”

Plaintiff responded affirmatively and added that if there was an issue “it should have been 

objected to at the jury trial instead of waived and now argued for the first time at a post-trial.” 

Defendant asserted there was a contemporaneous objection. Defendant added Dr. Coe could 

not say what type of surgery would be required and noted Dr. Coe’s testimony that he could not 

say whether it is more likely than not that plaintiff will need surgery. 

¶ 17 The posttrial judge first ruled that “not playing that one portion of the video I don’t think is 

an abuse of discretion.” The posttrial judge then stated, with regard to noneconomic damages, 

the jury is “in a better position to assess the impact of the accident or the incident on the 

plaintiff in the case and assess a dollar amount as to how they believed the plaintiff was 

impacted, both in the past and in the future.” The posttrial judge then stated it had reviewed Dr. 

Coe’s testimony and the judge had 

“certain concerns with regard to the qualifications and/or competency of Dr. [Coe] to 

render an opinion with regard to future hip surgery, and I find that based on his 

testimony and his qualifications, that he did not have that—the qualifications to render 

an opinion with regard to the need of future hip surgery.”

The posttrial judge concluded: 

“THE COURT: He [(Dr. Coe)] may have had concerns with regard to whether or 

not the plaintiff may need some treatment in the future with regard to the hip, but it was 

beyond the scope of his expertise to render an opinion with regard to whether or not the 

plaintiff would be a proper surgical candidate for hip surgery in the future, and I think 

that is a sufficient basis to grant a new trial as to the issue of damages.”

The posttrial judge granted defendant’s motion for a new trial on damages.

¶ 18 This appeal followed. 

¶ 19 ANALYSIS 

¶ 20 Plaintiff argues the posttrial judge erred in reversing the prior ruling permitting Dr. Coe to 

opine that plaintiff would need hip surgery in the future because (1) it was within the trial 
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judge’s discretion to permit the testimony because Dr. Coe was qualified to give the opinion, 

(2) the testimony at issue was cumulative of other evidence, (3) any error was not prejudicial, 

and (4) defendant failed to adequately object in the trial court therefore their argument the 

admission of the testimony was improper is forfeited. Defendant argues the posttrial judge 

properly ordered a new trial because it was error to allow Dr. Coe to give an opinion 

concerning the need for future surgery, the testimony was not cumulative, the testimony 

prejudiced defendant, and defendant made a timely objection to the testimony. 

¶ 21 I. Standard of Review 

¶ 22 The parties dispute the correct standard of review this court should apply to the posttrial 

judge’s order and, in doing so, raise a question as to the role of a successor judge reviewing the 

ruling of the prior judge. Plaintiff argues this court would normally apply an abuse of 

discretion standard of review to a posttrial judge’s order granting a new trial, but that standard 

should not apply to a successor judge reversing the discretionary ruling of a trial judge because 

“[n]o Illinois case gives a successor judge discretion to reverse the many discretionary 

evidentiary rulings by a trial judge.” Plaintiff argues that because the posttrial judge did reverse 

the discretionary evidentiary ruling of the trial judge, the “successor judge standard of review” 

applies, and he cites Balciunas v. Duff, 94 Ill. 2d 176 (1983), in support. In Balciunas, our 

supreme court held as follows: 

“As we have noted, in previous cases this court has indicated that prior 

interlocutory rulings should be modified or vacated by a successor judge only after 

careful consideration. [Citations.] In the context of discovery, where abuse is said to be 

widespread and delay phenomenal [citations], we think it is particularly appropriate for 

a judge before whom a motion for reconsideration is pending to exercise considerable 

restraint in reversing or modifying previous rulings. This is especially true if there is 

evidence of ‘judge shopping’ or it is apparent that a party is seeking, for delay or 

abusive purposes, a reconsideration of prior rulings.” Id. at 187-88. 

Although Balciunas states how the successor judge should approach the discretionary order of 

a prior judge if the order comes before the successor judge, from this, plaintiff argues this court 

should conduct a de novo review of the posttrial proceedings to determine if the trial judge 

abused his discretion in admitting Dr. Coe’s opinion because we are in the same position as the 

posttrial judge when he issued his order reversing the trial judge. 

¶ 23 Defendant first argues plaintiff failed to raise the issue of whether the Balciunas standard 

applies to the posttrial motion in the trial court and therefore has forfeited the issue. Defendant 

also argues the Balciunas standard applies to motions to reconsider discovery orders and does 

not apply to posttrial motions. Defendant states that when a posttrial motion is filed, if “the trial 

court finds that an error has prejudiced the moving party, a new trial is required.” Defendant 

cites People v. Hampton, 223 Ill. App. 3d 1088 (1991), for the proposition that another judge is 

capable of considering the arguments of the parties and reassessing prior rulings. Id. at 1096 

(“ ‘[a] primary purpose of post-trial motions is to allow the trial judge an opportunity to 

consider the arguments of the parties and to re-assess his rulings,’ we believe that another 

judge is capable of making that reassessment as well”). Defendant argues the standard of 

review this court applies to a successor judge’s ruling on a posttrial motion is the same 

standard we would apply where the same judge who presided over the trial hears a posttrial 

motion, and it is the posttrial judge’s “exercise of discretion which is before this court on *** 
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appeal.” Defendant asserts this court does not ask whether the trial judge abused his or her 

discretion “when the original order was entered in the middle of an ongoing trial.” Defendant 

argues that in the absence of evidence of forum shopping “the successor judge steps into the 

position of the trial judge, and is empowered to grant the same relief for the same reasons that 

the original trial judge is empowered to grant.” In that circumstance, defendant argues, the 

traditional standard for the successor judge under Towns v. Yellow Cab Co., 73 Ill. 2d 113 

(1978), applies. 

¶ 24 In Towns, our supreme court wrote: 

“While prior rulings should be vacated or amended only after careful consideration, 

especially if there is evidence of ‘judge shopping’ on behalf of one who has obtained an 

adverse ruling, a court is not bound by an order of a previous judge [citation] and has 

the power to correct orders which it considers to be erroneous. Here, the cause was 

assigned to the second judge as a matter of procedure. The defendant could properly 

renew his motion, even though it had been denied by another judge, and the pretrial 

judge, in turn, could review and modify the first judge’s interlocutory order.” Id. at 121.

Defendant asserts that “[a]pplying that traditional standard here, the applicable standard of 

review is whether [the posttrial judge] abused his discretion in granting [defendant’s] post-trial 

motion for a new trial on damages.” Defendant cited Grillo v. Yeager Construction, 387 Ill. 

App. 3d 577 (2008), as authority for the standard of review from an order granting or denying 

a posttrial motion being an abuse of discretion. That case held: 

“Generally, a trial court’s ruling on a motion for a new trial is reviewed for an abuse 

of discretion. [Citation.] The trial court’s decision is subject to this deferential standard 

because the trial court had the benefit of previous observation of the appearance of the 

witnesses, their manner in testifying, and of the circumstances aiding in the 

determination of credibility.” Id. at 597. 

¶ 25 In reply, plaintiff argues “the Appellate Court[ ] always concentrate[s] on the discretion of 

the trial judge.” Plaintiff also argues there is evidence of judge shopping in this case and 

implies defendant selected its posttrial counsel to create a conflict with the trial judge. Setting 

aside the speculative nature of this argument, assuming, arguendo, there is evidence of judge 

shopping, that fact merely requires “careful consideration” before the prior ruling is altered. 

See Towns, 73 Ill. 2d at 121. There is no suggestion and no evidence the posttrial judge did not 

engage in very “careful consideration” before ruling on these issues, and the record is directly 

contrary. 

¶ 26 The crux of plaintiff’s argument as to how the successor judge should have approached the 

posttrial motion is that a successor judge does not and should not have the discretion to 

overturn the discretionary rulings of a prior judge. We disagree. In McClain v. Illinois Central 

Gulf R.R. Co., 121 Ill. 2d 278 (1988), our supreme court held a successor should reverse an 

erroneous order entered by a previous judge. The supreme court heard the appeal of an order 

denying a dismissal on grounds of forum non conveniens. Id. at 282. In that case the “second 

judge believed that it would be inappropriate for him to overturn a prior judge’s decision when 

that decision was vested in the trial judge’s discretion.” Id. at 287. The defendant had filed four 

prior pleadings seeking to have the cause of action dismissed on grounds of 

forum non conveniens. Id. at 282-84. By the time the defendant filed the forum non conveniens

motion giving rise to the appeal before our supreme court, the case had been reassigned to a 
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different circuit judge (the successor judge) for administrative reasons. Id. at 284. In denying 

the latest motion, the successor judge stated in a written order that the defendant’s authority 

“appeared to be on point, but he refused to overturn the ruling of the previous judge 

because ‘the ruling of a trial court on a Forum Non Conveniens motion is a matter of 

discretion, and one judge of the circuit court having exercised that discretion, it is 

inappropriate for another judge of the circuit court to review that decision.’ ” Id. at 

284-85.

¶ 27 In response to the successor judge’s belief that “it would be inappropriate for him to 

overturn a prior judge’s decision when that decision was vested in the trial judge’s discretion” 

(id. at 287), our supreme court wrote: 

“In [Towns v. Yellow Cab Co., 73 Ill. 2d 113, 120-21 (1978)], this court held that ‘a 

court is not bound by an order of a previous judge [citation] and has the power to 

correct orders which it considers to be erroneous.’ A previous order committed to a 

judge’s discretion is not likely to be erroneous, but there are circumstances when it can 

be overturned, such as when new matters are brought to the reviewing judge’s attention 

and there is no evidence of judge shopping.” Id.

The McClain court also noted that the successor judge had misapprehended a decision from 

our supreme court on the subject of forum non conveniens and as a result failed to consider a 

then-recently decided appellate court decision that strongly supported the motion. Id. at 

287-88. The McClain court went on to discuss the considerations involved in deciding a 

forum non conveniens motion and applied them to the facts of the case. Id. at 288-92. The 

McClain court concluded “that the trial court abused its discretion in denying [the] motion to 

dismiss on grounds of forum non conveniens.” Id. at 292.2

¶ 28 Thus, in McClain, our supreme court found that the successor judge should have exercised 

his discretion to undo the erroneous discretionary ruling of the prior judge. See also People v. 

DeJesus, 127 Ill. 2d 486, 494 (1989) (“This court has stated, in a variety of contexts, that an 

interlocutory order may be reviewed, modified or vacated under certain circumstances before 

final judgment, and it is of no consequence that the original order was entered by another 

circuit judge.”); People v. Brown, 2018 IL App (4th) 160288, ¶ 38 (“A court has the inherent 

authority to reconsider and correct its rulings, and this power extends to interlocutory rulings 

as well as to final judgments. [Citation.] [I]t is of no consequence that the original order was 

entered by another circuit judge.” (Internal quotation marks omitted.)). 

“An interlocutory order may be modified or revised by a successor court at any time 

prior to final judgment. [Citations.] However, in circumstances where the interlocutory 

order involved the exercise of a prior judge’s discretion, the successor judge may 

 

2Although the McClain court referenced “the trial court” in finding an abuse of discretion in 

denying the motion, and despite the fact the McClain court found the granting of the motion would have 

been warranted at the time the action was filed, while it was still before the prior judge (see McClain, 

121 Ill. 2d at 290), it is clear the McClain court held the successor judge abused its discretion in denying 

the defendant’s motion to dismiss. The court specifically noted that the “motion giving rise to this 

appeal” was the motion that was before the successor judge. Id. at 284. The court also addressed 

circumstances surrounding the motion that arose after the initial motion was filed, including that the 

plaintiff had changed his residence to the chosen forum and “the amount of time that this action has 

been pending” in the plaintiff’s chosen forum. See id. at 290-92. 
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overturn the order only where new facts or circumstance warrant such action and there 

is no evidence of ‘judge shopping.’ [Citation.] A noteworthy exception to this rule 

exists where the successor judge finds that the previous interlocutory order is erroneous 

as a matter of law. In such a case, the successor judge has the power to correct the 

previous order regardless of the existence of new matter.” Bailey v. Allstate 

Development Corp., 316 Ill. App. 3d 949, 956-57 (2000). 

See also Lake County Riverboat L.P. v. Illinois Gaming Board, 313 Ill. App. 3d 943, 950 

(2000) (“where the successor judge finds that the previous interlocutory order is erroneous as a 

matter of law, the successor judge, absent evidence of judge shopping, has the power to correct 

the previous order regardless of the existence of new matter”); Eads v. Consolidated R. Corp., 

365 Ill. App. 3d 19, 23 (2006) (“ordinarily, once a judge has made a discretionary ruling, the 

ruling will not be disturbed by a judge of coordinate jurisdiction unless there is a change of 

circumstances or additional facts that warrant such action”).

¶ 29 The question thus becomes whether, in this case, the posttrial judge found that the trial 

judge’s order admitting Dr. Coe’s testimony was erroneous as a matter of law or whether the 

posttrial judge believed the trial judge improperly exercised his discretion. See Balciunas, 94 

Ill. 2d at 188 (“once the court has exercised its discretion, that ruling should not be reversed by 

another member of the court simply because there is disagreement on the manner in which that 

discretion was exercised”). 

¶ 30 Here, based on the record before this court, we believe that the posttrial judge found that 

the prior order was erroneous as a matter of law. At the hearing on the posttrial motion, the 

posttrial judge asked, “What qualification did Dr. [Coe] have to render an opinion with regard 

to future hip surgery?” After counsel recited Dr. Coe’s qualifications, the posttrial judge asked, 

“Is he an orthopedic surgeon?” Counsel responded he did not need to be an orthopedic 

surgeon, to which the posttrial judge responded: “So you’re saying that a non-orthopedic 

surgeon is somebody who can—is competent to testify as to whether or not a patient needs 

surgery or can be dealt with in a nonsurgical or more conservative manner than requiring 

surgery?” After additional argument by the parties, the court ruled on the posttrial motion. In 

ruling on the admissibility of Dr. Coe’s opinion, the posttrial judge stated as follows:

“I have certain concerns with regard to the qualifications and/or competency of Dr. 

[Coe] to render an opinion with regard to future hip surgery, and I find that based on his 

testimony and his qualifications, that he did not have *** the qualifications to render an 

opinion with regard to the need of future hip surgery. 

 He [(Dr. Coe)] may have had concerns with regard to whether or not the plaintiff 

may need some treatment in the future with regard to the hip, but it was beyond the 

scope of his expertise to render an opinion with regard to whether or not the plaintiff 

would be a proper surgical candidate for hip surgery in the future, and I think that is a 

sufficient basis to grant a new trial as to the issue of damages.”

¶ 31 In Gill v. Foster, 157 Ill. 2d 304, 316 (1993), our supreme court “reaffirmed the three-step 

analysis to be performed to determine an expert physician’s qualifications and competency to 

testify announced in [Purtill v. Hess, 111 Ill. 2d 229 (1986)].” 

“In Purtill, this court found: 

 (1) the expert must be a licensed member of the school of medicine about which he 

proposes to testify; 
- 12 - 

 (2) the expert must prove his familiarity with other physicians’ methods, 

procedures, and treatment; and 

 (3) once the above foundation is laid, the trial court has the discretion to determine 

whether the physician is qualified and competent to state his opinion regarding the 

standard of care.” Id. at 316-17.

“This three-step analysis was later summarized by our supreme court as containing ‘two 

foundational requirements of licensure and familiarity, and [a] discretionary requirement of 

competency.’ ” Alm v. Loyola University Medical Center, 373 Ill. App. 3d 1, 4 (2007) (citing 

Sullivan v. Edward Hospital, 209 Ill. 2d 100, 115 (2004)). “In this third step, in which courts 

act as ‘the gatekeeper’ allowing through only reliable and relevant evidence for consideration 

by the jury, courts employ ‘a totality of the circumstances’ approach.” Roach v. Union Pacific 

R.R., 2014 IL App (1st) 132015, ¶ 55.

¶ 32 In this case, during argument on the posttrial motion, the posttrial judge evinced concern 

consistent with the first Purtill foundational requirement when he asked plaintiff’s attorney if 

“a non-orthopedic surgeon is somebody who can *** testify as to whether or not a patient 

needs surgery.” The posttrial judge concluded its ruling on the posttrial motion stating he 

believed Dr. Coe “did not have *** the qualifications to render an opinion with regard to the 

need of future hip surgery” and stated “it was beyond the scope of [Dr. Coe’s] expertise to 

render an opinion with regard to whether or not the plaintiff would be a proper surgical 

candidate for his surgery in the future.” The posttrial judge’s oral ruling excludes any explicit 

discussion of Dr. Coe’s familiarity with the methods, procedures, and treatment of orthopedic 

surgeons, whether plaintiff’s need for surgery was within Dr. Coe’s knowledge and 

observation, or why, based on his education and experience, Dr. Coe was not competent to 

testify to the need for surgery. See Alm, 373 Ill. App. 3d at 5 (citing Sullivan, 209 Ill. 2d at 115, 

and Ruiz v. City of Chicago, 366 Ill. App. 3d 947, 953 (2006)).3

 Although the judge was not 

required to make express findings (see City of Chicago v. Harris Trust & Savings Bank, 56 Ill. 

App. 3d 651, 654 (1977)), we find the posttrial judge’s stated concern about whether Dr. Coe 

was an orthopedic surgeon and the absence of any specific findings with regard to his training, 

experience, and familiarity with the issue at hand, establishes that the posttrial judge’s ruling 

was not based on a disagreement with the trial judge’s exercise of discretion but a 

determination as a matter of law that Dr. Coe failed to meet the foundational requirement for 

expert medical testimony.4

 The posttrial judge had the power to make that determination 

 

3Nor did the posttrial judge explicitly discuss the facts pertaining to the elements that determine the 

admissibility of expert testimony generally, specifically Dr. Coe’s “knowledge, skill, experience, 

training, or education” or whether it had “at least a modicum of reliability” or whether his testimony 

“would aid the jury in understanding the evidence. [Citations.]” (Internal quotation marks omitted.) 

Fronabarger v. Burns, 385 Ill. App. 3d 560, 565-66 (2008). 

4

If the posttrial judge determined, in his discretion, that Dr. Coe was not qualified and competent to 

offer an opinion on plaintiff’s need for future surgery in his gatekeeping role, that judgment would fall 

under the rule taken from McClain, 121 Ill. 2d at 287, that “once a judge has made a discretionary 

ruling, the ruling will not be disturbed by a judge of coordinate jurisdiction unless there is a change of 

circumstances or additional facts that warrant such action.” Eads, 365 Ill. App. 3d at 23. Defendant 

argued there was a change in circumstances when the trial ended and the jury returned its “enormous 

award for non-economic damages.” However, the end of the trial and the entry of a verdict are not 

circumstances that bear on Dr. Coe’s qualifications and competency to testify. See, e.g., Marcy v. 
- 13 - 

(Bailey, 316 Ill. App. 3d at 956-57), and we must now turn our attention to whether that 

determination by the posttrial judge was erroneous. “Whether the two foundational 

requirements have been met is a legal question, which we review de novo.” Roach, 2014 IL 

App (1st) 132015, ¶ 51. 

¶ 33 In Gill, 157 Ill. 2d at 315, the plaintiff called a board-certified general surgeon as an expert 

witness to testify regarding the standard of care and deviations therefrom by a radiologist. The 

plaintiff’s expert 

“testified that during the course of his experience as a surgeon he: has had training and 

experience in interpreting X-rays; has instructed medical students on the subject of 

radiology as it relates to surgery; has examined tens of thousands of X-rays; and is 

familiar with the standard of care of reasonably well-qualified radiologists.” Id. at 

315-16. 

The defendant objected to the plaintiff’s expert testifying as an expert in the area of radiology 

on the ground he was not a radiologist. Id. at 316. The trial court sustained the objection, and 

the appellate court affirmed. Id. Our supreme court held the trial court abused its discretion in 

excluding the expert testimony. Id. at 318. On appeal to the supreme court, the plaintiff argued 

that because the proffered expert “was licensed to practice medicine in all its branches, he was 

qualified to testify about the standard of care of radiologists, having testified that he was 

familiar with that standard.” Id. at 316. The plaintiff contended that the fact the proffered 

expert was not a practicing radiologist and not board certified in radiology only went to the 

weight of his opinion and not its admissibility. Id. Our supreme court agreed. Id. 

¶ 34 Our supreme court relied on its holding in Jones v. O’Young, 154 Ill. 2d 39 (1992), in 

which it “held that a plaintiff’s medical expert need not also specialize in the same area of 

medicine as the defendant doctor in order for the expert to qualify as to the appropriate 

standard of care.” Gill, 157 Ill. 2d at 316 (citing Jones, 154 Ill. 2d 39). The Gill court found that 

“[i]n Illinois, a physician is licensed to practice medicine in all its branches [citation]; thus, 

[the] plaintiff’s expert satisfies the first threshold requirement.” Id. at 317. The court also 

found the second threshold requirement, familiarity with the methods and procedures, was also 

apparent in that case. Id.; see also Ayala v. Murad, 367 Ill. App. 3d 591, 597 (2006); Parvin v. 

Sill, 138 Ill. App. 3d 325, 330 (1985) (“That Parvin’s expert was a radiologist did not render 

his testimony regarding Parvin’s need for, and the cost of, back surgery inadmissible, 

particularly as the witness worked as a consultant to back specialists.”).

¶ 35 Dr. Coe testified he works with orthopedic surgeons on an almost daily basis. Dr. Coe 

looks at orthopedic injuries and classifies them by type and severity regularly, “basically daily 

in [his] practice.” He also testified that his specialty, occupational medicine, involved training 

in many different areas of the body, “particularly areas that are prone to injury; so things like 

orthopedic system, neurological systems, the lungs.” Dr. Coe testified he teaches medical 

students about injuries to the shoulders, back, and hip. As previously stated, the totality of the 

posttrial judge’s pronouncements in ruling on the posttrial motion evince the dispositive 

ground on which the posttrial judge granted the motion was that Dr. Coe was not an orthopedic 

surgeon. We believe the posttrial judge erred in holding Dr. Coe was not qualified to offer an 

 

Markiewicz, 233 Ill. App. 3d 801, 807-08 (1992) (finding no change in circumstances when motion was 

renewed before successor judge where motion did not lay out any changed circumstances or additional 

facts regarding basis for prior judge’s order).
- 14 - 

opinion about plaintiff’s need for future hip surgery on that basis. The evidence establishes that 

the injuries, treatment, and prognosis in this case are matters within Dr. Coe’s knowledge and 

observation. See Jones, 154 Ill. 2d at 43. 

¶ 36 Defendant argues Dr. Coe was not competent or qualified to give his opinion to a 

reasonable degree of medical certainty because Dr. Coe testified that he would defer to a 

surgical specialist as to the type of surgery plaintiff will need in the future. Defendant cites 

Landers v. Ghosh, 143 Ill. App. 3d 94 (1986), in support of its argument. In Landers, a 

proffered expert made a statement de hors the record “to the effect that he was not qualified to 

testify regarding” whether an injury could be repaired surgically. Id. at 100. The plaintiff 

objected at trial, and to resolve the issue, the trial court conducted an in camera examination to 

ask the expert whether or not he thought he was qualified to give the opinion. Id. During the 

in camera examination, the expert testified he would defer to a surgical expert. Id. The expert 

was asked the specific follow-up question: “ ‘Do you, doctor, feel qualified to pass judgment 

on whether or not the wounds are reparable[?]’ ” Id. at 101. The expert responded: “ ‘No, I 

don’t think I am qualified to say that one wound is reparable and another isn’t reparable.’ ” Id.

Contrary to defendant’s argument in this case, the trial court in Landers did not bar the expert’s 

testimony because the expert testified he would defer to a surgical expert on the issue at hand; 

rather, the proffered expert opinion was barred because the expert testified he was not qualified 

to give it. See id. at 100-02. The Landers court confirmed the basis of the trial court’s order 

barring the testimony. The court found: 

“[A]t the conclusion of the examination of the witness in this matter, he stated that he 

did not think he was qualified to say that one wound was reparable and another not. The 

trial court expressly concluded that the witness did not feel he was qualified to render 

such an opinion. Under the circumstances we cannot say that the trial court abused its 

discretion in reaching such a conclusion and, therefore, in barring Dr. Parks’ testimony 

concerning his opinion as to the reparability of Charles Landers’ wounds.” Id. at 102. 

¶ 37 In this case, there is no statement by Dr. Coe that he feels he is not qualified to give an 

opinion that plaintiff will require surgery in the future. Therefore, Landers is inapposite. As for 

Dr. Coe’s testimony that he would defer to a surgeon to determine the type of surgery needed, 

defendant argues Dr. Coe’s reliance on a surgeon to determine the type of surgery plaintiff will 

need demonstrates Dr. Coe is not competent to give an opinion surgery is needed. We disagree. 

Dr. Coe’s testimony established that he based his opinions on the history he received from 

plaintiff, plaintiff’s medical records, the results of diagnostic testing, plaintiff’s operative 

report, and Dr. Coe’s own examination of plaintiff. Dr. Coe testified to a reasonable degree of 

medical certainty that plaintiff “does need additional treatment that would include another hip 

surgery.” Dr. Coe testified: “If he were my patient, I would send him to a hip surgical specialist 

here in Chicago. It’s for the specialist to decide on the specific type of surgery.” On 

cross-examination, Dr. Coe testified he could not say to a reasonable degree of medical 

certainty whether it is more likely than not plaintiff will need surgery. Rather than 

disqualifying Dr. Coe, we find this testimony merely goes to the scope of his opinion and the 

weight the jury would afford it. Dr. Coe limited his opinion to referring plaintiff to a surgical 

specialist, and it was for the jury to decide how to weigh any inconsistencies in his testimony. 

See Hulman v. Evanston Hospital Corp., 259 Ill. App. 3d 133, 149 (1994) (citing Sparling v. 

Peabody Coal Co., 59 Ill. 2d 491, 498-99 (1974) (credibility of witness whose own testimony 

is contradictory is for the jury to decide)); Bean v. Volkswagenwerk Aktiengesellschaft of 
- 15 - 

Wolfsburg, Germany, 109 Ill. App. 3d 333, 338 (1982) (“After he was declared competent to 

testify as an expert by the trial judge, the jury was then free to evaluate his conclusions relative 

to his various fields of expertise. Although his testimony was, to a degree, weakened on 

cross-examination ***, still it was for the jury to accord it the proper weight.”). 

¶ 38 This case is also distinguishable from Glassman v. St. Joseph Hospital, 259 Ill. App. 3d 

730 (1994), cited by defendant. In that case, a witness sought to testify as an expert that the 

cause of the decedent’s organic brain syndrome was a surgery and complications after surgery 

including the presence of status epilepticus, but the witness admitted he did not know how 

those complications cause brain damage. Id. at 749. The court found that the witness “mirrored 

the opinion of [the] plaintiff’s other experts, who found that the status epilepticus caused the 

brain damage, although [the witness] could not explain how the condition caused the damage.” 

Id. at 750. In contrast, in this case, although Dr. Coe read the reports of the other doctors, he did 

not simply mirror what was in them. Dr. Coe explained in detail how plaintiff’s injury was 

caused and exacerbated and why plaintiff might need surgery. 

¶ 39 Defendant next argues that in addition to Dr. Coe’s alleged lack of competence and 

qualifications, he also “disqualified himself when he gave the following answer to the 

following question: 

“Q. As to any further surgery that you opined Mr. Russo might need, you can’t say 

to a reasonable degree of medical certainty whether it’s more likely than not he will 

need surgery? 

A. Yes. That’s correct.” 

Defendant argues Dr. Coe’s admission demonstrates he is not qualified to give the opinion 

“because he cannot give an opinion to a reasonable degree of medical certainty whether 

plaintiff will need future surgery.” Plaintiff states this argument is waived because defendant 

“did not object to any of the actual answers of Dr. Coe when it became allegedly apparent 

(during cross-examination as Defendant claims) that any testimony was objectionable.” We 

are presented with the question of whether defendant’s initial objections to Dr. Coe’s 

qualifications to render an opinion on the need for future surgery are sufficient to preserve 

defendant’s argument on appeal that the opinion itself is not admissible because Dr. Coe 

“disqualified himself.” Defendant asserts it moved to bar the opinion testimony before trial and 

objected at trial on the grounds (a) nothing in the record supports an opinion plaintiff will 

require future hip surgery, (b) no doctor could relate plaintiff’s arthritis in the hip to the 

accident, and (c) Dr. Coe was not qualified to render such an opinion as an occupational 

medicine doctor. Defendant argues it was not required to object each time Dr. Coe discussed 

the surgery. 

¶ 40 In Johnson v. Hoover Water Well Service, Inc., 108 Ill. App. 3d 994, 1006 (1982), the 

defendant argued the trial court erred in not striking certain testimony. Specifically, a court 

reporter testified to statements made by an employee of the defendant, and on appeal, the 

defendant argued the court reporter-witness took the statements in violation of several rules. 

Id. The court initially noted that “the defendant failed at the time the testimony was introduced 

to object to it on the grounds specified above. The only objections made at that time were that 

the statements were not impeaching and did not constitute admissions against Hoover’s 

interest.” Id. The objections the defendant made at the time the testimony was introduced were 

overruled. Id. “However, after the plaintiff rested his case the defendant moved that the 

testimony be stricken on the ground urged here on appeal.” Id. The court held the issue was 
- 16 - 

waived because the motion to strike the testimony was not timely. Id. at 1006-07. The court 

first noted that “[a]n objection to evidence must be timely made and must specify the reasons 

for the objection. [Citation.] Generally, an objection to the admission of evidence in order to be 

timely must be made at the time of its admission.” Id. at 1006. The court also held that “[t]he 

fact that other objections were made at the time the testimony was offered does not satisfy the 

requirement of a timely objection or motion. An objection to evidence based upon a specific 

ground is a waiver of objection on all grounds not specified.” Id. at 1006-07; see also Stapleton 

v. Moore, 403 Ill. App. 3d 147, 156 (2010) (“A party is required to make specific objections to 

evidence, based on particular grounds, and the failure to do so results in a waiver of objections 

as to all other grounds not specified or relied on.”).

¶ 41 Defendant’s argument, that Dr. Coe’s answer to the aforementioned question demonstrates 

he cannot give an opinion to a reasonable degree of medical certainty that plaintiff may require 

some type of hip surgery in the future, is forfeited. Defendant did not object and move to strike 

Dr. Coe’s testimony when it elicited that answer. Moreover, we find that because of 

defendant’s vigorous cross-examination of Dr. Coe, defendant was not unduly prejudiced by 

his testimony, “and the jury had sufficient basis for according due weight to it.” See Levin v. 

Welsh Brothers Motor Service, Inc., 164 Ill. App. 3d 640, 659 (1987). And, in light of the 

jury’s award for future medical expenses, including future surgeries, in the context of the entire 

damages award, any prejudice from this testimony in particular was minimal. The trial judge 

did not abuse his discretion in allowing Dr. Coe to offer an opinion on plaintiff’s need for 

future hip surgery; the posttrial judge abused his discretion in striking Dr. Coe’s testimony and 

ordering a new trial. 

¶ 42 Finally, defendant argues the question of the admissibility of Dr. Coe’s testimony must be 

viewed in context of allegedly prejudicial conduct by plaintiff’s attorney (discussed below) 

and “the enormous award for non-economic damages.” Defendant argues “[i]n context, the 

error in admitting Dr. Coe’s opinion added to the prejudice generated by the misconduct of 

plaintiff’s attorney, and undoubtedly contributed to the enormous award for non-economic 

damages.” We can only construe plaintiff’s argument to be that the combined prejudice from 

the errors in admitting Dr. Coe’s opinion and from plaintiff’s conduct warrants a new trial. 

However, for the reasons discussed above, the trial judge did not err in admitting Dr. Coe’s 

opinion, and for the reasons discussed below, defendant failed to establish that plaintiff’s 

conduct prejudiced defendant. Therefore, defendant’s alternative argument also fails.

¶ 43 II. Alternative Issues in Defendant’s Posttrial Motion

¶ 44 Since we have held defendant should not have been granted a new trial based on the trial 

judge’s admission of Dr. Coe’s testimony, we must address defendant’s alternative posttrial 

arguments. “[A]ll rulings challenged in the post-trial motions, even if not addressed by the trial 

court in post-trial proceedings, are properly before this court.” Bishop v. Baz, 215 Ill. App. 3d 

976, 984 (1991). “A reviewing court will reverse a trial court’s ruling on a posttrial motion for 

a new trial only if the trial court abused its discretion.” Stamp v. Sylvan, 391 Ill. App. 3d 117, 

123 (2009). “An abuse of discretion occurs when the ruling is arbitrary, fanciful, or 

unreasonable, or when no reasonable person would take the same view.” Check v. Clifford 

Chrysler-Plymouth of Buffalo Grove, Inc., 342 Ill. App. 3d 150, 157 (2003). Defendant argues 

the trial judge improperly excluded from evidence a surveillance video of the crane impacting 

the lift, defendant is entitled to a remittitur of the award for future medical costs, and defendant 
- 17 - 

is entitled to a remittitur of the award for non-economic damages. 

¶ 45 A. Surveillance Video 

¶ 46 Plaintiff filed a motion in limine to exclude from evidence a video recording of the crane 

impacting the lift plaintiff was working on. Plaintiff’s counsel stated his belief that the parties 

were in agreement on the motion, but defendant’s attorney stated: “we agree to have the video 

presented. But we’re not going to make any argument that the crane didn’t cause the injuries 

that our experts acknowledge that he had.” The trial judge asked defendant’s attorney if there 

would be any argument or attempt to establish the nature and duration of the injury, and 

defendant’s attorney responded that there would be, but it would not be linked to the video. 

The following exchange occurred: 

“THE COURT: You’re not going to try to link the video to some argument about 

mechanisms or force of impact. You’re just going for [sic] make those arguments in 

other ways in the case—

MR. OLMSTEAD [(DEFENDANT’S ATTORNEY)]: Yes. I mean nothing to 

comment upon. It would just be our expert testifying to the duration and extent of 

injuries, in their opinion what this incident caused so the jury can see it. I mean 

there’s—the issue—it doesn’t go to the force of the crane at all. That’s not going to 

be—

 * * *

 MR. OLMSTEAD: But I think the jury has a right to see the video more so after 

the—how the plaintiff was afterwards and they can just to see how he reacts in terms 

of—

THE COURT: We’re getting a little bit beyond the motion right now. The motion is 

somewhat more limited. I mean you were kind of having this little discussion, it’s a 

little broad here, but this is—you know, certain arguments. It sounds like you’re in 

agreement with this motion? 

MR. OLMSTEAD: Correct. As to force of the crane. We’re still—we are disputing 

the extent of it. I just want to make clear—

THE COURT: I understand. I’m not taking issue. Obviously you get to defend the 

nature and extent of injury in other ways. I don’t know what those might be, but you 

have a basis to do so it appears.”

¶ 47 The following day the trial judge recommenced the hearing on motions in limine. The trial 

judge informed the parties of its understanding that plaintiff’s counsel had represented

“that there was some sort of stipulation not to present [the video,] and defense then said 

that they intended to present it. Plaintiff’s counsel then stated the video is clearly not a 

video. This is a time lapse—there are shots taken out. It’s like a picture, a lapse, picture, 

a lapse, picture.” 

Plaintiff’s counsel asserted the video was “not going at the correct speed” and therefore it was 

“not an accurate speed portrayal of this incident.” Plaintiff’s counsel stated he had no problem 

with photographs from the video being used but argued that to represent this to be the speed is 

extremely prejudicial and has no probative value because it has already been stipulated 

between the parties and all the experts agree that the injuries from this accident are all from this 
- 18 - 

accident. The trial judge stated it had viewed the video and described what is depicted in the 

video. The trial judge then stated: 

“So I understand [plaintiff’s counsel’s] arguments about the fact this is not a, I guess, 

video or motion picture, if you will. I don’t know what the sequence is, but it’s viewed 

as video. You can tell, if you look closely, that there is some stillness to it because it 

evidently is done frame by frame; but there are quite a few frames. It does present it in 

somewhat of a video fashion; but it’s slower, I suppose, that you can kind of discern 

that.”

Later in the hearing, defendant’s attorney argued as follows:

“MR. OLMSTEAD: [W]e don’t intend to argue that [plaintiff] was not injured as a 

result of this. That’s not the intent of showing it. The intent is, again, showing the 

severity of the accident that can be—he’s not—you know, if he was cut in half or 

something was severe, they would want to show it. This shows him—again, even if it’s 

in clips, the speed isn’t relevant either. It shows he was able to—afterwards he gets 

down. He is able to walk around afterward. *** I mean the jury hears that the crane hit 

him. You know, the [jury] could get a different perception in terms of what it actually 

looked like. The crane hits the lift and that injured him. It moves the lift significantly 

and that’s not in dispute. You can see it. *** The issue is extent of the injury, and our 

experts agree he was injured or aggravated the injury.”

Plaintiff’s counsel reiterated that the video was not a true and accurate depiction of the accident 

because it is in slower motion. The trial judge remarked “it looks somewhat like a normal 

video but—as well you can discern perhaps that it’s a little slower than real time.” Plaintiff’s 

counsel offered to stipulate to showing the portion of the video after the impact; but plaintiff’s 

counsel argued that showing the impact would be improper because it is not the right speed and 

there would be no valid point to showing it. Defendant’s attorney responded: “The point is to 

let the jury see how the accident happened ***. We’re going to hear *** a crane hit a boom. I 

mean it’s very possible that a juror could think this thing almost like completely fell over.” The 

trial judge commented that the video was “slower motion than normal” but that there was “a 

rather somewhat normal cadence to the entire video.”

¶ 48 The trial judge asked defendant’s attorneys why they could not achieve their purpose with 

still frames from the video if their purpose was to show the layout of the crane, the lift, and the 

point of impact. The trial judge stated its concern was that the video minimized the force of the 

impact because it is in a slower motion. The trial judge questioned why the jury needed to see 

the video if the force of the impact was not made an issue in the case and noted that the video 

does not depict how plaintiff was “jostled about in the cage” atop the lift. The trial judge stated 

its concern was that the video would engrain in the jurors’ minds a lower speed impact than 

what actually occurred. After further discussion, the trial judge granted the motion to exclude 

the video in part. The trial judge excluded the portion of the video depicting the impact but 

allowed the jury to see the video from after the point of impact forward. Defendant was 

allowed to show the jury still images from the video showing the impact. 

¶ 49 During trial, while Dr. Coe was on the stand, the court and the parties engaged in a 

conversation outside the presence and hearing of the jury to discuss questions from the jury for 

Dr. Coe. During that sidebar conversation, the following colloquy occurred: 

“THE COURT: Here’s another thing, Mr. Carter [(plaintiff’s attorney)]: The next 

time you pound your fist—and you’ve done it five or seven times to characterize this 
- 19 - 

collision—I’m letting that video come in. The next time it’s characterized as a smash, 

that video is coming in. That was a close call for this court. And you continue to 

suggest to this jury that it was a very forceful impact by pounding your fists together 

and by calling it a smash. 

 There have been a lot of efforts by the plaintiffs here in a number of other 

ways—and there’s a couple of other subtle ways that I can find—to suggest to this jury 

that this was a large impact, a collision. 

I don’t know what it was, but I do know that that video might be helpful to the jury 

on the issues that are being generated by plaintiff’s counsels in this case. You’re 

slamming your fists. You’ve done it—you did it three times with this witness. 

 * * *

You’re slamming your fists together every time you say it. And that video might be 

instructive to this jury. You’re opening the door to it, quite frankly. That’s what you’re 

doing. So please don’t do that anymore. Okay? Calling it a ‘smash’ characterizing it as 

a collision and all of that is not appropriate. Call it the ‘incident’ from now on, ‘the date 

in question,’ whatever you want.

They’ve admitted negligence. You’re the one that’s generating the relevancy in that 

videotape. And I’m telling you that it’s been repeated, and I haven’t said anything 

about it from opening statements until now; but that’s about the seventh fist pump that 

I’ve seen, or at least the sixth, from you in the characterization of that collision. 

Come on, counsel. Don’t generate relevancy of that tape. You got a favorable 

ruling from this court. And I’m very close to issuing it, so just don’t do it anymore.”

At that point defendant’s attorney argued that based on the trial judge’s observations and based 

on the fact Dr. Coe testified he did review the video and found it helpful, the videotape was 

relevant to show to the jury. The trial judge disagreed with defense counsel that Dr. Coe 

testified he found the video helpful. The trial judge stated Dr. Coe stated it was not helpful and 

he did not base his opinion on it. The trial judge denied defendant’s motion for the court to 

review its prior ruling regarding the video, and then stated as follows: 

“THE COURT: I would note that in this case, if I didn’t say it earlier, this is an 

admitted negligence case. Typically, oftentimes we don’t get into the collisions and 

that; but here you haven’t admitted causation entirely. You haven’t admitted damages 

and causation. So obviously, there could be some relevance to a tape. But it also 

doesn’t show the upper portions of the cage. It shows the plaintiff’s—his lower legs, 

his feet. 

 And it appears that this collision was not perhaps as forceful as is being suggested 

to this jury by these presentations in court that aren’t making the record, but they have 

been placed on the record now. So just don’t go there anymore. I want to leave the 

ruling alone, is what I’m trying to say.”

¶ 50 After both parties had rested, while outside the presence and hearing of the jury, 

defendant’s attorneys renewed their request to admit the video into evidence but in light of the 

trial judge’s earlier ruling asked to make an offer of proof. The trial judge noted the admission 

of the video was argued extensively before trial in a motion in limine and that there had been 

subsequent requests for its admission which had been denied with the court standing on its 

original ruling. Defendant’s attorney recalled a witness (defendant’s vice-president and 
- 20 - 

in-house counsel) who testified that she was familiar with the surveillance video and that the 

video fairly and accurately depicts the conditions of the facility as they existed at the time of 

the accident. The witness testified the video was at normal speed and that the video fairly and 

accurately depicts the accident. The witness testified the video is not time-lapsed. On 

cross-examination the witness testified that her sole basis for testifying that the video showed 

real time was a time clock on the video that counts every second (without any jumps in time) 

during playback. The witness also testified her testimony was based on what was visible on the 

video and that she does not have any particular expertise in this area. 

¶ 51 The trial judge ruled it would stand on its original ruling and made a record as to why, 

stating in pertinent part as follows: 

“THE COURT: I was told, late in the game or so to speak or late towards the end of 

the case defense admitted negligence in this matter and was conceding that there were 

some injuries during the course of the incident, but they were contesting the nature and 

extent of injuries and the cause of those claimed injuries and damages. 

 So it was in that context that this video eventually arises and defense wants to 

present it to the jury so they can understand the mechanism by which this occurred, in 

other words, how this crane hit this lift, because it lent itself to all sorts of speculation 

on the jury’s part as to what action was involved in here.

 What the Court said was that the defense ultimately can present still shots prior to 

the point of contact to the jury, so the jury knew exactly that this was a large I-beam 

crane that was striking the lift on its arm somewhere below the basket as plaintiff 

worked in that basket above the floor of the facility. And then thereafter, after the point 

of contact and whatever it did to the lift, because there was some jostling, if you will, 

that once things had quote unquote settled down, you could show the video thereafter, 

because that was germane and relevant to the issues in the case, him lowering himself 

down and what he did thereafter, both sides wanted at least that portion of the tape for 

various reasons perhaps shown to the jury that are relevant to the issues. 

 So I stand on the ruling. I would note that you have conceded negligence. Typically 

we don’t get into the nature of the contact, but obviously in this case there’s some 

relevance to it. 

 Likewise, I was concerned about the fact that only the bottom portion of the basket 

is visible, and you can see the plaintiff’s feet in that basket at some portion of the video 

and just above his feet up to calf area, but you can’t see torso or upper body during the 

point of impact and displacement it caused on this J-lift. And so that was the other 

reason the Court was concerned about admitting the tape and showing it to the jury. 

 The simple proposition is the defense just wanted the jury to understand the nature 

of the collision or impact, where it occurred with reference to these two vague notions 

of cranes and lifts. That was achieved by the Court’s ruling that you can present still 

shots and then thereafter. I stand on that ruling at this point. 

 This is an admitted negligence case and if, you know, if you have some experts to 

talk about mechanism of injuries or biomechanics it might have been highly relevant, 

and certainly if there was some challenge as to the foundation for the video, which 

appears to be somewhat, you know, normal video, but perhaps there’s some stiltedness 

to it, if you will, if that’s the right word, because there was an objection and this wasn’t 
- 21 - 

going to come out anyhow and you wanted to offer it for limited reasons, I think that’s 

the appropriate ruling.”

¶ 52 Defendant’s attorney informed the trial judge that it was offering the video “in response to 

the actions by the plaintiff’s attorney and witnesses who described the accident and for the jury 

to see the video in response to that as well.” The trial judge responded that point was noted, but 

the court was not going to change its ruling. In ruling on defendant’s posttrial motion, the 

posttrial judge found: “It’s within the discretion of the Court to allow it. *** [I]f I was there, I 

might have done something differently, it was within the discretion of the Court. And, you 

know, not playing that one portion of the video I don’t think is an abuse of the Court’s 

discretion.” 

¶ 53 On appeal, defendant argues that a refusal to grant its posttrial motion on the trial judge’s 

ruling on the motion in limine and defendant’s motion to reconsider the ruling on the motion 

in limine would be an abuse of discretion. Defendant argues the video should have been 

admitted because the video fairly and accurately shows the circumstances of the accident. 

Defendant also asserts the trial judge found that plaintiff’s conduct during trial generated the 

relevancy of the video and that conduct prejudiced the jury as demonstrated by the award of 

noneconomic damages. Specifically, defendant argues: 

“The relevance and need for the video was generated by the prejudicial misconduct of 

plaintiff’s counsel, in repeatedly referring to the impact as a ‘collision’ and pounding 

his fist when he called it a ‘collision.’ 

 * * *

The video should have been admitted to address the issues raised by plaintiff’s 

counsel in order to rebut his mischaracterizations.”

Defendant argues “[t]he mischaracterization of the impact goes to the nature, extent and 

duration of the injury.” Defendant asserts it “sought to cure the prejudice created by 

[plaintiff’s] counsel’s conduct by introducing the video into evidence.” As to the trial judge’s 

initial ruling on the motion in limine, defendant argues the video is admissible under the “silent 

witness” theory because plaintiff admitted a portion of the video and thus, the accuracy of the 

recording process that produced the video was uncontested. See People v. Taylor, 2011 IL 

110067, ¶ 35 (discussing the foundational requirements for establishing the accuracy of a 

process that produces surveillance camera recordings). 

¶ 54 The trial judge granted the motion in limine in part because defendant could still achieve its 

stated objective to show the jury what was meant when the jury would be informed that a crane 

struck a lift. Defendant had informed the court “[t]he point is to let the jury see how the

accident happened ***. We’re going to hear *** a crane hit a boom. I mean it’s very possible 

that a juror could think this thing almost like completely fell over.” The trial judge expressed 

his belief the defense could achieve their purpose with still frames from the video. The trial 

judge reiterated that basis for his holding in response to defendant’s motion at the close of all 

evidence to reconsider the earlier ruling on the motion in limine. In response to the motion to 

reconsider, the trial judge stated: “The simple proposition is the defense just wanted the jury to 

understand the nature of the collision or impact, where it occurred with reference to these two 

vague notions of cranes and lifts. That was achieved by the Court’s ruling that you can present 

still shots and then thereafter.” On appeal, defendant does not argue the still images were 

inadequate for that purpose; defendant argues the still images “cannot cure the 
- 22 - 

mischaracterizations by plaintiff’s counsel that this incident involved a ‘very forceful impact’ 

or ‘large impact.’ ” 

¶ 55 “The admission of evidence is largely within the discretion of the trial court, and its rulings 

will not be disturbed absent an abuse of discretion.” Werner v. Nebal, 377 Ill. App. 3d 447, 454 

(2007). “We will conclude that a trial court abused its discretion only where no reasonable 

person could have agreed with the trial court’s decision.” Id. The trial judge concluded that the 

prejudicial effect of the video outweighed its probative value on the question of how the 

accident occurred, which was defendant’s stated purpose for admitting the video. Defendant 

does not argue the still images did not permit defendant to convey to the jury how the accident 

happened and limit the jury’s speculation about the nature of the crane and the boom. Given 

defendant’s stated purpose to show the type of crane, where it struck the lift, and that the lift 

did not collapse, we cannot say that no reasonable person would agree with the trial court. 

Accordingly, we find no abuse of discretion in the trial judge’s ruling on the motion in limine. 

¶ 56 Turning to defendant’s request to admit the video at the close of evidence, at which point 

plaintiff’s conduct had allegedly “generated the relevancy of the video,” we review the trial 

judge’s decision for an abuse of discretion. State Farm Mutual Automobile Insurance Co. v. 

Trujillo, 2018 IL App (1st) 172927, ¶ 26. “Where the denial of a motion to reconsider ‘is based 

on new matters, such as additional facts *** that were not previously presented during the 

course of proceedings leading to the order being challenged, we are to employ an abuse of 

discretion standard of review.’ ” In re Estate of Agin, 2016 IL App (1st) 152362, ¶ 18. 

Defendant argues the trial judge abused his discretion because the video should have been 

admitted to rebut plaintiff’s mischaracterizations of the force of the impact of the crane 

resulting from plaintiff’s attorney’s conduct of slamming his fist and referring to the impact as 

a smash or a collision. Defendant argues this mischaracterization “improperly implied to the 

jury that the impact was more forceful than it actually was.” Defendant also argues that had the 

trial judge considered defendant’s posttrial motion in the light of the “enormous award for 

non-economic damages,” there is a good chance the trial judge would have granted the 

posttrial motion to admit the video. 

¶ 57 Plaintiff argues that, because the video only shows his feet and inaccurately portrays the 

speed of the collision, the video is prejudicial with no probative value. Plaintiff also argues the 

video would lead to speculation by the jury as to what happened to plaintiff’s body and 

defendant’s medical witnesses “did not offer any opinions connecting the accident video and 

the injury or lack thereof.” As for plaintiff’s attorney allegedly “generating the relevance” of 

the video, plaintiff argues the trial judge was present during trial, witnessed plaintiff’s 

counsel’s conduct, and “was well within its discretion to make the determination that 

Plaintiff’s counsel’s punching his fists a few times and using the word collision did not warrant 

showing the video.” Alternatively, plaintiff argues defendant failed to lay a proper foundation 

for the video and failed to demonstrate how excluding the video changed the outcome of the 

trial. 

¶ 58 The effect of plaintiff’s counsel’s conduct on the jury is merely speculative. See Larkin v. 

George, 2016 IL App (1st) 152209, ¶ 14 (“[P]laintiff failed to present any evidence that the 

jury’s awareness of the existence of the photographs prejudiced him. Bare speculation and 

unsupported presumptions are insufficient to establish that plaintiff was prejudiced.”). The 

trial judge admonished plaintiff’s counsel not to repeat its conduct, and defendant has pointed 

to no further instances of the acts or words at issue. Moreover, plaintiff’s counsel’s words and 
- 23 - 

actions were not evidence. Under the circumstances, and in light of evidence of plaintiff’s 

injuries, which we discuss below, we cannot say counsel’s acts contributed to the jury’s 

noneconomic damages award such that the trial judge abused his discretion in not admitting 

the video to cure any prejudice. Additionally, the trial judge was aware of plaintiff’s counsel’s 

conduct but adhered to its finding that the potential prejudice to the plaintiff from showing the 

video outweighed its probative value. 

“Even relevant evidence may contain drawbacks of sufficient importance to call for its 

exclusion, including unfair prejudice, confusion of the issues, and misleading the jury. 

[Citations.] *** ‘[I]f the evidence is merely confusing and creates uncertainty, that 

alone may suffice to tip the balance in favor of exclusion when the information sought 

to be presented contains negligible probative value.’ ” Maffett v. Bliss, 329 Ill. App. 3d 

562, 574 (2002). 

The trial court was concerned not only with the prejudice that might result from the video 

misleading the jury as to the force of the impact but also the potential for speculation as to the 

effect of the impact on plaintiff’s “torso or upper body during the point of impact and [the] 

displacement it caused.” See id. at 575 (finding evidence “was likely to confuse and mislead 

the jury or result in speculation on the jury’s part”). That determination by the trial judge was 

not arbitrary, fanciful, or unreasonable, and we cannot say that no reasonable person would 

take the same view. Check, 342 Ill. App. 3d at 157. Accordingly, we find he trial judge did not 

abuse his discretion is refusing to admit the surveillance video of the incident. 

¶ 59 B. Remittitur—Future Medical Expenses 

¶ 60 Next, defendant argues it is entitled to a remittitur of the award for future medical expenses 

because there is nothing in the record from which the jury could reasonably estimate the cost of 

future surgeries testified to by Dr. Coe and another of plaintiff’s doctors. (A second doctor 

recommended spinal fusion surgery.) In this case the parties stipulated that plaintiff’s past 

medical expenses was approximately $157,000. The jury awarded damages for future medical 

expenses of $150,000. For the reasons that follow, we do not find that the award for future 

medical expenses falls outside the range of fair and reasonable compensation, or results from 

passion or prejudice, or is so large that is shocks the judicial conscience. 

“The determination of damages is a question reserved for the trier of fact, and, as a 

reviewing court, we give great deference to a jury’s damage award. [Citations.] ‘An 

award of damages will be deemed excessive if it falls outside the range of fair and 

reasonable compensation or results from passion or prejudice, or if it is so large that is 

shocks the judicial conscience.’ [Citation.] Where the jury’s award falls within the 

flexible range of conclusions reasonably supported by the evidence, a remittitur should 

not be granted. [Citation.] We review a trial court’s ruling on a motion for remittitur for 

an abuse of discretion.” Young v. Alden Gardens of Waterford, LLC, 2015 IL App (1st) 

131887, ¶ 80.

¶ 61 Defendant argues plaintiff cannot rely on cases allowing juries to consider the cost of 

future medical treatment based on the cost of past medical treatment because in each of those 

cases “the future medical treatment *** actually related to the past medical treatment.” In this 

case, defendant argues, “future hip replacement surgery and spinal fusion surgery are entirely 

distinct from Plaintiff’s past medical treatment.” In other words, the cost of the future surgeries 

cannot be determined from plaintiff’s past medical treatment because plaintiff never 
- 24 - 

underwent those surgeries, and there is no other evidence to support the jury’s award. Plaintiff, 

in support of his argument that future medical expenses should not be remitted, argues “it [is] 

within the province of the jury to determine future medical bills even though there is no 

testimony as [to] what the amount of those bills would be[,] because the jury knew what the 

prior medical bills were,” citing Price v. Victory Baptist Church of Sunnyland, 205 Ill. App. 3d 

604 (1990), Lewis v. Cotton Belt Route-St. Louis Southwestern Ry. Co., 217 Ill. App. 3d 94 

(1991), Blackburn v. Illinois Central R.R. Co., 379 Ill. App. 3d 426 (2008), and Aguilar-Santos 

v. Briner, 2017 IL App (1st) 153593. 

¶ 62 In Victory Baptist Church of Sunnyland, 205 Ill. App. 3d at 610, the defendant argued the 

jury had no basis on which to award future medical expenses. The plaintiff, who fell 12 feet 

from a ladder to a concrete floor, “had already undergone two knee operations and had shown 

little sign of improvement. *** [A]n orthopedic surgeon[ ] testified more operations would 

probably be done in the future.” Id. The past expenses were known to the jury. Id. The jury 

awarded future damages that were “nearly 21⁄2 times the amount of medical expenses that had 

already accrued.” Id. The court noted that the plaintiff’s future medical expenses “will range 

from operations to therapy to regular maintenance and replacement of knee braces; he may 

need crutches or a wheelchair to get around.” Id. The court did not note any testimony or 

evidence that the plaintiff’s past medical expenses included any of those items. See id. The 

plaintiff argued that the orthopedic surgeon “gave no specific estimate of the future costs of the 

plaintiff’s medical care.” Id. The court held that “[f]uture medical expenses may be determined 

without a precise estimate in the circumstances that exist here.” Id. The court found no basis 

for granting a new trial on the issue of future medical expenses. Id. 

¶ 63 In Cotton Belt Route-St. Louis Southwestern Ry. Co., 217 Ill. App. 3d at 118, the defendant 

argued that the plaintiff’s attorney made improper prejudicial remarks during closing argument 

that resulted in the jury awarding damages for future medical care and expenses based on 

passion and prejudice. The defendant argued, 

“there was no evidence as to the type, frequency, or amount of medical treatment [the] 

plaintiff would require and that the only evidence on the question of future medical 

expenses was the testimony of [the plaintiff’s doctor] that [the] plaintiff has needed 

treatment for almost four years and, in [the doctor’s] opinion, [the] plaintiff would need 

treatment in the future.” Id. 

The defendant sought a new trial or a remittitur of the jury’s award for future medical expenses 

“because any award for future medical expenses was against the manifest weight of the 

evidence.” Id. The court rejected the defendant’s argument that the fact the damages award for 

future medical expenses “was approximately 10 times the amount of [the] plaintiff’s proven 

special damages” proved the verdict was a result of passion and prejudice. Id. at 123. The court 

reasoned that because the plaintiff had testified that he stopped seeking medical treatment 

because he could not afford the bills “the jury could reasonably have assumed that [the] 

plaintiff’s past medical expenses could have been much higher and accordingly projected 

future medical expenses in an amount 10 times higher than the special damages.” Id. The court 

also found that “the jury could reasonably have found that for the rest of [the] plaintiff’s life he 

would quite assuredly need access to some continuing medical care for his injury and that 

nearly $105,000 approximated the cost of that care over the next 34 years [(the plaintiff’s life 

expectancy)].” Id. at 124. The court did not state that the jury could have reasonably found that 

the plaintiff’s “continuing medical care *** over the next 34 years” would resemble the 
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plaintiff’s past medical care. See id. The court concluded “that the verdict does not fall outside 

the limits of fair and reasonable compensation, that there is no indication that it resulted from 

passion or prejudice, and that it is not so large as to shock the judicial conscience under the 

facts of this case.” Id. 

¶ 64 In Blackburn, 379 Ill. App. 3d at 432, the defendant argued an award for future medical 

expenses “should be reversed because the plaintiffs did not produce evidence of any specific 

medical expenses that they would incur in the future other than ‘generic references’ to periodic 

visits to a physician for a chest X-ray.” The court held that “the trier of fact enjoys a certain 

degree of leeway in awarding compensation for medical costs that, as shown by the evidence, 

are likely to arise in the future but are not specifically itemized in the testimony.” (Internal 

quotation marks omitted.) Id. In Blackburn, medical experts testified that “because the 

plaintiffs were diagnosed with asbestosis, they would need periodic X rays, medical exams, 

and colonoscopies.” Id. Another doctor “testified that an asbestosis patient must have routine 

pulmonary testing throughout his life.” Id. One of the plaintiffs “testified that he plans to 

monitor his condition with his family doctor.” Id. Another plaintiff “testified that he also plans 

to monitor his health,” and a third “testified, without objection, that his doctor told him he 

would need a chest X ray every year.” Id. The court found “that the amounts awarded fall 

within a range of fair and reasonable compensation for periodic X rays, exams, and other 

diagnostic testing that the evidence shows the plaintiffs will face due to the asbestosis 

diagnosis.” Id. at 433. Additionally, without discussing the plaintiffs’ prior medical expenses, 

the court found that “these amounts are not so large that we can say that they are based on juror 

passion or prejudice or that they shock the judicial conscience.” Id. The court stated it would 

“not substitute our judgment for that of the jury.” Id. The court held the “circuit court did not 

err in allowing the jury’s verdict with regard to future medical expenses to stand.” Id. 

¶ 65 In Aguilar-Santos, 2017 IL App (1st) 153593, ¶ 11, the defendant filed a motion in limine

to bar any claim for medical expenses because neither of the plaintiff’s doctors testified in their 

evidence depositions as to the cost of any future medical treatment and the plaintiff “identified 

no other witness who could testify as to the cost of treatment that [the] plaintiff may incur in 

the future.” The trial court revisited its order denying the motion in limine after all of the 

evidence had been presented. Id. ¶ 38. The defendant argued “there was insufficient testimony 

to support the future cost of [the plaintiff’s] prescription medication because no physicians 

testified regarding the amount of any future costs and there was no testimony regarding how 

long [the] plaintiff would need to take any prescription medication and in what amounts.” Id.

The trial court denied the motion in limine. Id. On appeal, the court held the jury’s award for 

future medical expenses was supported by the evidence. Id. ¶ 72. The court noted that the 

plaintiff had testified to the cost of her existing prescription medications and that her doctor 

testified that the plaintiff’s condition was unlikely to change. Id. ¶ 71. The court held that 

“[b]ased on this evidence, a reasonable person could conclude that plaintiff would continue to 

incur the costs associated with her prescription medication.” Id. The court rejected the 

defendant’s contention the jury had to speculate as to the amount of damages to award and held 

the award for future medical expenses was supported by the evidence because the plaintiff 

testified regarding the cost of her medication for the seven years between the accident and the 

trial, and a table showing the plaintiff’s life expectancy was admitted into evidence. Id. ¶ 72. 

¶ 66 The Aguilar-Santos court focused on one category of medical expense (medication) and 

the plaintiff’s testimony as to the cost of that expense in the past, and it found that the jury’s 
- 26 - 

award of damages for that expense in the future was not based on speculation because there 

was an evidentiary basis for the award. Id. The Aguilar-Santos court did not hold that the jury 

was limited to that category of prior medical expenses in its award for future medical expenses, 

and there would have been no need to in that case. The plaintiff’s doctor testified the plaintiff 

only had two options with regard to her injury: have surgery that was not guaranteed to be 

successful or live with the pain. Id. ¶ 27. The plaintiff testified she would not have surgery 

because of the risks involved. Id. ¶ 28. Therefore, there was only one possible category of 

medical expenses the jury could have awarded based on the evidence. The fact that the only 

category of future medical expenses that was available to the jury in Aguilar-Santos was the 

same category of medical expenses the plaintiff incurred in the past does not mean that when 

the jury must rely on past medical expenses to determine future medical expenses, the jury can 

only award future medical expenses for the same type of expenses the plaintiff incurred in the 

past. The authorities are to the contrary. 

¶ 67 In Victory Baptist Church of Sunnyland, there was nothing to suggest that the future 

medical expenses the court held the jury could award had been incurred in the past. Victory 

Baptist Church of Sunnyland, 205 Ill. App. 3d at 610. In Cotton Belt Route-St. Louis 

Southwestern Ry. Co., the court found that “the jury could reasonably have found that for the 

rest of [the] plaintiff’s life he would quite assuredly need access to some continuing medical 

care for his injury.” (Emphasis added.) Cotton Belt Route-St. Louis Southwestern Ry. Co., 217 

Ill. App. 3d at 124. This statement by the court was not categorical and did not limit the award 

of future medical expenses to those that mirrored the plaintiff’s past medical care. See id. And 

in Blackburn, the court did not discuss the plaintiff’s prior medical expenses at all. Blackburn, 

379 Ill. App. 3d at 432. 

¶ 68 Defendant cites Richardson v. Chapman, 175 Ill. 2d 98 (1997), as instructive, but that 

decision does not aid defendant’s position that the jury could not award future medical 

expenses for procedures plaintiff has not had in the past because no one testified to their cost. 

In Richardson, the plaintiff’s economist “testified that the present cash value of [the plaintiff’s] 

future medical expenses had a lower bound of $7,371,914 and an upper bound of $9,570,034.” 

Id. at 106. The jury awarded damages for future medical expenses that were “nearly $1.5 

million more than the higher of the two figures claimed at trial.” Id. at 112-13. The plaintiff 

pointed out that the list of likely future medical costs the economist used to determine their 

present cash value “did not assign specific values to certain items, such as the expenses of 

future hospitalizations and the costs of wheelchairs and a specially equipped van.” Id. at 112. 

The plaintiff argued that “the jury’s decision to award an amount for future medical costs 

greater than [the] higher estimate might simply reflect the jury’s desire to compensate [the 

plaintiff] for those unspecified but likely expenses.” Id. Our supreme court agreed with the 

plaintiff “that the trier of fact enjoys a certain degree of leeway in awarding compensation for 

medical costs that, as shown by the evidence, are likely to arise in the future but are not 

specifically itemized in the testimony.” Id. But the court found that “[g]iven the disparity 

between the trial testimony and the jury’s eventual award,” it could “not attribute the entire

difference *** to miscellaneous costs.” (Emphasis added.) Id. at 113. The court made an 

adjustment that did not erase the entire differential but that allowed the plaintiff “recovery for 

expected future medical costs for which no specific estimates were introduced, yet is not so 

large that it represents a departure from the trial testimony.” Id. 
- 27 - 

¶ 69 Thus, Richardson does not support the proposition that only those future medical expenses 

specifically testified to or which have occurred in the past can be awarded. The jury may award 

“compensation for medical costs that, as shown by the evidence, are likely to arise in the future 

but are not specifically itemized in the testimony.” Id. at 112. Here, plaintiff’s stipulated past 

medical expenses were $157,000. The jury awarded damages for future medical expenses of 

$150,000. We do not find that the award for future medical expenses falls outside the range of 

fair and reasonable compensation or results from passion or prejudice or is so large that it 

shocks the judicial conscience. Defendant’s argument, therefore, fails. 

¶ 70 C. Remittitur—Noneconomic Damages 

¶ 71 The jury awarded plaintiff $8.3 million in damages for the loss of normal life and pain and 

suffering plaintiff had already experienced and that he would experience in the future. 

Defendant argues these damages fall outside the range of fair and reasonable compensation, 

result from passion or prejudice, and shock the conscience. Defendant argues that plaintiff’s 

testimony that he can no longer enjoy swimming, gardening, kayaking, fishing, boating, or 

hunting is rebutted by evidence that he can shovel snow and cut grass. Defendant notes that 

plaintiff’s injuries are not life threatening, “[he] is not crippled,” and “[h]e is able to work light 

duty.” In sum, defendant argues “[p]laintiff’s case does not present the kind of catastrophic 

injuries which could rationally support an award of $8,300,000 for non-economic damages.” 

Defendant also argues the award resulted from prejudice caused when plaintiff’s attorney 

suggested the impact was a severe “collision,” when plaintiff’s attorney elicited testimony 

suggesting defendant withheld medical care from plaintiff, and when plaintiff’s attorney 

informed the jury that defendant had not admitted liability until late in the proceedings. 

Defendant asserts that “it is plain that this misconduct is directly related to the excessive award 

for non-economic damages.”

¶ 72 Plaintiff provided the testimony allegedly suggesting defendant withheld medical care. 

During his direct examination, during questioning about the accident itself, plaintiff’s attorney 

asked plaintiff the following questions, and plaintiff gave the following answers: 

“Q. All right. So what happened next?

 A. The gentlemen that I was speaking to in the last video was, I think, the plant 

manager; and I asked him to call me an ambulance. 

 Q. Do you remember what happened? 

A. He wasn’t too concerned about calling me an ambulance. He wanted to bring me 

into the plant and take an incident report from me. 

 Q. And then what happened? 

 A. So he called out the foreman, the safety director, the VP, and myself, and just 

start drilling me with a whole bunch of questions about how I got hit by the crane. 

 Q. And what happened next? 

A. So I sat with them for about 15 or 20 minutes. And I said, ‘You know, I really 

want to go get myself checked out. I’m in a lot of pain.’ I said, you know, ‘I need you to 

call me an ambulance or have somebody drive me to the hospital.’ And they weren’t 

too concerned about it, again. 

 [Objection sustained.] 

 Q. What happened next? 
- 28 - 

 A. So they asked me to come back in to ask me more questions, and I refused. And 

I said, ‘I’m going to call myself an ambulance.’ And they got very irate with me, and 

they told me to call my company. So I called the guy that I was working with—I guess 

you could call him my foreman, at the time. He had went to a different job that day. 

And he freaked out, and within about 30 minutes he was there. And I’m still asking 

them to call me the ambulance, and they’re not—”

Defendant objected again, and the trial judge called the attorneys to a sidebar. The trial judge 

told plaintiff’s attorney the testimony he was eliciting from plaintiff was irrelevant, prejudicial, 

and designed to inflame the jury, and that plaintiff’s attorney was doing it intentionally. 

Defendant’s attorney asked the court to strike the testimony at issue, and the court initially 

refused, stating the objection and request to strike were untimely. After further discussion, 

defendant’s attorney asked that plaintiff’s testimony about his conversations after the accident 

be stricken. The court asked defendant’s attorney if he was “going to try to cure it in some way 

with any testimony,” and defendant’s attorney responded he was not. When proceedings 

resumed in front of the jury, the court informed the jury it was to strike those questions and 

answers “posed to the witness about what happened next and conversations [that] occurred.”

¶ 73 After plaintiff rested his case, and before defendant began to present its case, defendant’s 

attorney informed the trial judge: “Your Honor, we are, in rebuttal in terms of what came up 

with the plaintiff we intend to call Ms. Sullivan [(defendant’s vice-president and in-house 

counsel)] to testify and dispute what plaintiff claims occurred after the accident with her and 

others.” Plaintiff’s attorney objected on the ground defendant’s objection to the testimony had 

been sustained and the jury was instructed to disregard the testimony. The trial judge asked 

defendant’s attorney for an offer of proof. Defendant’s attorney informed the trial court that 

defendant’s in-house counsel would testify that she met with plaintiff and “that none of that 

occurred in terms of his asking for [an] ambulance or being denied an ambulance or medical 

care at his request.” After lengthy discussions of the issue, the trial judge ruled the defense 

would be allowed to call its witness and that it would admonish the jury that it now could 

consider the answers that had been given by plaintiff. Plaintiff called the witness to testify. She 

stated that at the time of the accident she was defendant’s vice-president of administration, 

secretary, and counsel. She testified no one from defendant prevented or prohibited plaintiff 

from seeking medical treatment and, had plaintiff requested an ambulance, that request would 

have been complied with. On cross-examination the witness testified defendant did not call an 

ambulance or have someone take plaintiff to the hospital. After the witness testified, the trial 

judge instructed the jury as follows: 

“THE COURT: Ladies and Gentlemen, yesterday there was some questions on the 

topic that were posed to the plaintiff and at that time I made a general admonition for 

you to disregard it and strike it. Whatever answers that were given at that time by the 

plaintiff you can consider in the context now, fuller context of the case based on the 

testimony you just heard.”

¶ 74 On appeal, plaintiff argues that defendant invited or acquiesced to any error in admitting 

plaintiff’s testimony regarding his alleged request for an ambulance. In response to this 

argument by plaintiff, defendant claims that plaintiff “argues that the prejudicial misconduct 

was waived because defense failed to timely object” but “the objection appears on the same 

page of the record in which plaintiff testified” about the ambulance. 
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¶ 75 Defendant did object, initially, then changed course when it learned defendant’s in-house 

counsel could testify no one prevented plaintiff from seeking medical treatment. “[T]he jury is 

presumed to follow the instructions given to it by the court. [Citation.] A circuit court’s 

instruction to disregard certain evidence can cure prejudice resulting from the jury’s exposure 

to that evidence.” (Internal quotation marks omitted.) McHale v. Kiswani Trucking, Inc., 2015 

IL App (1st) 132625, ¶ 47. Rather than relying on the trial judge’s striking of the evidence and 

instruction to the jury, defendant solicited testimony on the subject from its in-house counsel, 

knowing that soliciting that evidence would result in the trial court admonishing the jury that it 

could consider plaintiff’s testimony on the same subject, which the court did without objection 

from defendant. “A party who ‘procures, invites or acquiesces’ in the admission of improper 

evidence cannot complain that such evidence was prejudicial to his case.” Smith v. Victory 

Memorial Hospital, 167 Ill. App. 3d 618, 623 (1988). We will not consider any allegedly 

unduly prejudicial effect from plaintiff’s testimony concerning plaintiff’s alleged request for 

an ambulance. 

¶ 76 Similarly, defendant objected to plaintiff’s counsel’s comment during opening statements 

suggesting defendant had only recently admitted liability. During opening statements, 

plaintiff’s attorney stated as follows: “So this is what the case is about. If I admit something, I 

acknowledge it’s true. If I accept something, I actually do something to make it right. They 

have admitted and there’s no doubt about that for the last week or so we’ve appreciated the 

admission. But the acceptance is not worth money.” Defendant’s attorney objected, and the 

trial judge sustained the objection. The trial judge further admonished the jury as follows: 

“THE COURT: You’re to strike that from your mind. You didn’t hear it. Don’t 

consider a comment like that from an attorney. Strike it from your mind. Is there 

anyone who doesn’t understand that order? Attorneys shouldn’t make an argument like 

that. Anyone who doesn’t understand, raise your arm. No one’s raised their hand.” 

¶ 77 “Improper comments generally do not constitute reversible error unless the party has been 

substantially prejudiced. [Citation.] Where the trial court sustains a timely objection and 

instructs the jury to disregard the improper comment, the court sufficiently cures any 

prejudice.” (Internal quotation marks omitted.) Willaby v. Bendersky, 383 Ill. App. 3d 853, 862 

(2008). In this instance the trial judge immediately sustained defendant’s objection and 

thoroughly admonished the jury. Moreover, defendant does not explain how the jury’s 

knowledge of when it admitted liability, if the jury understood plaintiff’s attorney’s comment, 

prejudiced defendant. In light of all of the foregoing (see also supra ¶ 58), we cannot say the 

jury’s noneconomic damages awarded resulted from passion or prejudice. 

¶ 78 We next turn to the question of whether the damages fall outside the range of fair and 

reasonable compensation, result from passion or prejudice, or shock the conscience because 

plaintiff’s damages are not “catastrophic.”

“It is well settled that the amount of damages to be assessed is peculiarly a question of 

fact for the jury to determine and that great weight must be given to the jury’s decision. 

[Citation.] The very nature of personal injury cases makes it impossible to establish a 

precise formula to determine whether a particular award is excessive or not. [Citation.] 

[A] court reviewing a jury’s assessment of damages should not interfere unless a 

proven element of damages was ignored, the verdict resulted from passion or prejudice, 

or the award bears no reasonable relationship to the loss suffered.” (Internal quotation 
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marks omitted.) Neuhengen v. Global Experience Specialists, Inc., 2018 IL App (1st) 

160322, ¶ 169.

“Furthermore, whether an award is excessive must be decided from consideration of 

permanency and extent of the injury, possible future deterioration, medical expenses, and 

restrictions on daily activity due to the injury.” Marchese v. Vincelette, 261 Ill. App. 3d 520, 

530 (1994). 

¶ 79 The evidence at trial was that since the accident plaintiff has back and hip pain when he 

walks. He also walks with a limp that can be controlled with medication. He can no longer do 

“the aggressive-type work that’s required” of his former gardening activities, so he asks his son 

to do it. He no longer goes boating and now fishes only rarely. Plaintiff testified he can no 

longer wade in the water to fish because it hurts his back and hip, so he “lost interest in it” 

which he found “disheartening.” He also no longer lifts weights like he used to. Plaintiff can 

perform normal daily activities, but they cause him pain. He always has pain in his shoulder 

and hip; it is just sometimes less severe than other times. Plaintiff also testified he has pain in 

his back that is worsened when walking down stairs, walking short distances for short periods 

of time, climbing stairs, or walking around the yard. Plaintiff testified that if he bends the 

wrong way or squats to pick something up or anything else, it will sometimes, but not every 

time, cause “immediate and instant pain” in his back. Plaintiff testified he does not go on 

vacations anymore, cannot stand for long periods of time, does not swim anymore, and does 

not raft anymore. Plaintiff testified he loved playing the drums, but he can no longer do it 

pain-free. Plaintiff also testified he loved doing his job as an electrician but he can no longer do 

electrician work, which he misses. Plaintiff also testified his relationship with his wife has 

deteriorated as a result of the accident. Plaintiff’s wife testified that prior to the accident they 

had a satisfying sex life but now due to plaintiff’s complaints of pain, they no longer sleep in 

the same room. 

¶ 80 The evidence established that defendant was physically active and enjoyed his career as an 

electrician and now cannot engage in the employment or activities he once enjoyed, and he is 

in some level of pain constantly which escalates with ordinary daily activities. We cannot say 

that the jury’s assessment of damages resulted from passion or prejudice, bears no reasonable 

relationship to the loss suffered by plaintiff, or is so large as to shock the judicial conscience. 

See Neuhengen, 2018 IL App (1st) 160322, ¶ 169. Defendant’s request to this court for a 

remittitur is denied. 

¶ 81 CONCLUSION 

¶ 82 For the foregoing reasons, the circuit court of Cook County is reversed. 

¶ 83 Reversed.