## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Klingelhoets v. Charlt

on-Perrin , 2013 IL App (1st) 112412

Appellate Court Caption G WE N K L I N G E LH O E T S, Pl ain

ti f f

- A p p e ll e e , v

. ST A CI

A CHA RL T O N

PERR I N, Def endant- Appellant.

District & N o. First District, F ourth Division Docke t No. 1-11-2412

Rule 23 Order

filed Rule 23 Order
withdrawn Opinion filed November 21, 2012

J anuar y 4, 2013
J anuar y 10, 2013

Held (Note : This syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) A verdict of over $700,000 for plaintiff in an action for the injuries s h e suffe red when she was struck by defe ndant’s vehicle was upheld over contentions t h at t h e trial court made sever al err ors and that a new trial

was require d, since, inter alia
, plaintiff’s “attac ks” on defe nse counsel and defe ndant’s medical expert did n o t wa rra nt reve rsal, the trial court did not abuse its discretion in re fu s i n g to allow defe ndant to call an

occur renc e witness as a defe nse witness afte r plaintiff decide d not to call her, the testimony of plaintiff’s friend co n ce rning plaintiff’s “mental status” afte r the acc ident was not “unqualifie d subjective opinions,” and allowing plaintiff t o testify that she st opped ther apy beca use of the cost was not an a

buse of discr etion.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, No. 08-L -335; the Hon. Clare Elizabeth McWilliams, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Michae l Resis, of Smi thAmundsen L L C, of Chicag o, for a ppellant.

Michae l W. Rathsack, Timothy M. Richardson, and Eliz abeth Spellman Pudenz, all of Chicag o, for a ppellee.

Panel J USTI CE FI TZ GERAL D SMI TH delivere d the jud gm en t of the court, with opinion.
Presidin g J u s t ice L avin and J ustice Epstein concur red in the judgme nt and opinion.

OP INION

¶ 1 P l ai n t iff-a

ppellee Gwen Klinge lhoets (plaintiff) brought a neg lige nce ac t i o n aga i n s t defe nda nt- a p p e llant Stacia Charlton-Perrin (def endant) arising from an automobile acc ident. Following a jury trial, the trial court enter ed judgme nt on the verdic t in favor of plaintiff and
ag ainst defe ndant in the amount of $713,601.82. Def endant now appea ls, contending that the trial court err ed in allowing plain t i ff t o m ake “re peate d and unfair attacks” in opening
statement and closing argument, in not permitting defe ndant to call a cer tain witness, in denying he r motions to bar two other witnesses, and in a llowing the jur y to hear testimony that plaintiff did not continue with treatment be cause of its c ost. She also contends that the jury ’s verdic t was ag ainst the manifest weight of the evidenc e. Def endant asks that we

reve rse the judgme nt enter ed upon the jury verdic t and rema nd with direc tions to grant a new trial or a r emittitur. For the f ollowing r easons, we aff

irm.

¶ 2 BA CKGROUND ¶ 3 On October 25, 2006, defe ndant, who was trying to make a right turn in her sport utilit y vehicle (SUV) at an intersec tion from Northbrook Shopping Mall onto L ake- Cook Road in Northbrook, I llinois
, struck plaintiff, who was walking acr oss the street. Def endant admitted liability
, but disputed plaintiff’s injuries and damag es, including her claim of future medical costs. Acc ording ly , the ca use proc eede d to a jury

trial on these issues. ¶ 4 Be fore trial beg an, defe ndant filed three motions rele vant to this appea l. The first was a motion to bar the testimony of one of plaintiff’s medical expert witnesses, Dr. Robert Kohn. Plaintiff disclosed that she would be calling Dr. Kohn to rebut the testimony of defe ndant’s medical expert, Dr. Richard Galbra ith. Def endant objected, claiming that Dr. Kohn’s testimony was not true re buttal e vidence but, instea d, only cumulative opinions to those of plaintiff’s o ther medical expert, Dr. Mary J ane Chaisson. After briefing
, the trial court denied defe ndant’s motion to bar Dr. K ohn. ¶ 5 The second rele vant motion filed by def en d an t wa s a motion to quash the evidenc e depositions of J anet Dobbs and Rache l Yar row. Plaintiff had taken these depositions befor e trial, as Dobbs and Yar

row, her cowor

kers, wer e prese nt during the acc ident. Howeve r, afte r

-2-defe ndant admitted liability
, plaintiff decide d she would not be calling Yar row as a witness and would only be calling Dobbs, since only Dobbs had actua lly seen the acc ident and could testify rega

rding the nature of t he impact. At this point, defe ndant wit hdrew her moti on to quash befor e a ruling was enter ed and told the trial court that she might want to use Yar row’s deposition at trial. The trial c ourt denied de fenda nt’s reque st to call Yarr ow. ¶ 6 Def

endant’ s thi rd p re t rial motion at issue was a motion to bar the testimony of Carol Hee rema , plaintiff’s cowor ker and friend, reg arding plaintiff’s mental status a nd proce sses when she saw plaintiff 10 day s afte r the acc ident. Def endant claimed this constituted medical opinion test i mony from a lay witness and, thus, lacke d an adequate foundation and was improper. Following argument, the trial court denied defe ndant’s motion and ruled that Hee rema could testify

as to what she obse rved a bout plaintiff afte r the a ccide nt. ¶ 7 The cause then proce eded to trial. Plaintiff testified that she lives in Minnesota and wa s in Northbrook, I llinois
, on busine s s as a sales repr esentative for a medical company specia liz ing in neurolog ical reha bilitation products. She was 47 year s old at the time of the

acc ident and was the company ’s most productive salesper son; she was also very ac t i v e i n social and sporting activities with her husband. Wit h respe ct to the acc ident, plaintiff aver red that she was walking with sever al cowor kers to att en d a dinner at a restaur ant when she

en t er ed a crosswa lk on a g ree n light and was struck by defe ndant’s SUV. She did n o t

reme mber the impact or whet her she lost consciousness, only that she was lying on the
paveme nt on her back and had pain in her head, neck, shoulder and l eg. S h e d ec l ined
treatment from para

medics at the scene and attended the dinner wit h h er cowor kers. Howeve r, afte r a short time at the restaur ant, she beg an to fee l ill and s h e returne d to her hotel, wher e she vomited. Dobbs then took he r to the eme rg ency room. ¶ 8 Plaintiff f

urther testified that she flew back to Minne sota the day afte r the acc ident and stayed home from wo rk for a few day s, without improvement. She suffe red from sever e heada ches and beca

me sensitive to light and sound. She would g et lost, lose her balanc e and

was unable to sleep. She went to her family doctor, to a chiropra ctor, and then to Dr. Chaisson in Dec ember 2006, who also ref err ed h er to a phy sical t hera pist. She returne d to work, but noticed that she was perf orming slowly and neede d to relear n things she knew well. Her memory and conce ntration worsene d and s he beca me unable to perf

orm her job functions. Sh e eventua lly had to chang e jobs and now works as an occupational thera pist. She curr ently still see s Dr

. C h ai s s on and a phy sical thera pist, but she is in pain on a daily basis and ca

nnot perfor

m her a ctivities to the same level she did before the ac cident. ¶ 9 Dobbs testified that she is plaintiff’s cowor ker, is a specia list in training neurolog ically impaired patients, and was wa l k i n g with plaintiff and some 10 to 15 other cowor kers to attend a dinne r at the time of the acc ident. As Dobbs was a bout to enter the c rosswalk, she hear d an automobile gun its eng ine. She then looked up and saw defe ndant in her SUV and

on her cell phone, try

ing to turn into the intersec tion; plaintiff was alre ady in the crosswa lk

sever al steps ahea d of Dobbs. Dobbs saw defe ndant hit plaintiff, who folded over the front of the SUV and was thrown back about 10 fee t, landing sitti ng up outside the crosswa lk with her leg s extended out but then falling backw ards and hitting the back of h er h ead on the
paveme nt. Def

endant exit ed her SUV and approa ched the scene , but the n walked awa y , all th e while talking on her cell phone. Dobbs further testified that plaintiff had cuts on her

-3-fore head and a bruise on her leg but had not lost consciousness. She confirme d that plaintiff

denied treatment at th e s ce n e an d instead went to the restaurant with her coworke rs. S oon thereaf t er , she beca

me shaky and Dobbs acc ompanied her to the emer g ency room. After
p l aintiff was discharg ed, hospital staff asked Dobbs to stay with her, telling Do b b s t h at plaintiff had a

head injury

and nee ded to be monitored. ¶ 10 Dr. Scott Cooper testified that he treated plaintiff when she arrived at the emer gen cy room. Plaintiff had bee n hit by an SUV on her left side and ha d struck her head on the car

. She had a contusion on her fore head, and she complained of heada ches and had vomited. Dr. Cooper noted that plaintiff did not repor t a loss of consciousness and was, at the time, aler t, calm and oriented with no cognitive difficulties. A CT scan of her head was normal, and he did not see any n eu ro l o gical problems at that time. Dr. Cooper diagnosed plaintiff with having sustained a head injury and exhibi ting sy mptoms akin to having suffe red a mild concussion, in addition to injuries to her nec k, shoulder and le g

. ¶ 11 Mark Klinge lhoets, plaintiff’s husband, testified that, befor e the acc ident, plaintiff was a happy and ac tive person, pa rticipating in various sports and outdoor activities, including hiking, biking and skiing. After the acc ident, howeve r, pl ai n t iff suffe red from memory problems and her rea ction to thing s seeme d delayed. She g ets very frustrated, cannot make decisions and sleeps a lot. Whil e she still works full-time and participates in ce rt ain activities, he described her as “lost” and constantly requiring pain medication befor e perf ormingany

activities. ¶ 12 Carol Hee rema , an occupa tional thera

pist, cowor

ker and friend of plaintiff’s for 25 year s, testified that, befor e the acc ident, she knew plaintiff to be a high- functioning
, intelligent and confide nt person; plaintiff oft en gav e l ec tures as part of her job which Hee rema attended. Hee rema saw plaintiff some 10 day s afte r the acc ident at a business confe renc e and observe d that she seeme d confuse d, was having trouble mentally and was just not “ac ting like herse lf.” For example, plaintiff could not reme mber Hee rema ’s name and Hee rema had to help her navig ate her way around the confe renc e beca use plaintiff could not follow a map. Hee rema

aver red that she “had never seen [pl aintiff] ac t t h at way befor e.” Some time later, afte r plaintiff had chang ed jobs, Hee rema saw her ag ain, sever al times. During their visits, Hee rema noted that plaintiff was slower to respond, made mistakes, had difficulty with her
memory and lacke d confide nce. She testified that plaintiff “just wasn’t t h e same person any more.” ¶ 13 Def

endant testified that, at the time of the acc ident, she wa s ex i t ing the mall and wa s attempting to turn right after havingstopped at a signa l. It was dark, and she l ooked to the right and left of her. J ust as she took her foot off the brake and beg an to ac cele rate , she hit plaintiff with her SUV while plaintiff was crossing the street. Def endant denied being on her cell phone at the time of the acc ident, but a verr ed that she ne ver sa

w plaintiff or any of her 15 cowor kers be forehitting her . She further testified that she did not see the a ctual impact

o r whether plaintiff hit her head or was thrown. She stated that she called 911 and h er boy friend and exit ed her vehicle, finding plaintiff sitti ng up on the paveme nt in the crosswa lk direc tly in front of he r ca

r. ¶ 14 T h e m ed i cal evidenc e prese nted at trial was leng thy

. Dr. Chaisson, plaintiff’s tre ating

-4-neurolog ist, testified that she beg an seeing plaintiff in Dec ember 2 0 0 6 upon ref err al. She revie wed all of plaintiff’s medical rec ords, including her emer g ency room visit, her primary

car e rec ords and her chiropra ctic rec ords. Plaintiff prese nted with sy mptoms associate d with head injury
, including nausea
, neck pai n , light and sound sensitivity
, and daily heada ches; she had a “har d time” rec ounting the acc ident. Upon an initial neurolog ical examination, Dr. Chaisson found that plaintiff had obvious neurolog ic defic its, including memory issues and clumsiness, along with eye pain and difficulty sleeping ; this conce rned her, p ar t i cu l arly beca use the acc ident had occur red two months earlier. In addition to her suspicions reg arding bad ce rvica l whiplash and interna l disc dera ng ement, she diagnosed plaintiff with a closed head injury , presc ribed he r medication, and ref err ed her to a phy sical thera

pist. ¶ 15 Dr. Chaisson saw plaintiff ag ain in January 2007. She still had multiple heada ches a nd described a decr ease d ability to think. Dr. C h ai s s on perf ormed an examination and found that, while plaintiff was calm and orientate d, she still had a lot of pain, espec ially in her neck and head, and showed a sensitivity to l i gh t an d sound, as well as frustration and trouble

con ce n t ra t i n g. She noted that plaintiff had to chang e jobs beca use of her pain. An MRI showed abnorma lities in he r cer vical discs. During follow-up visits through 2007, plaintiff continued to complain about heada ches and pain, particularly in her neck. S he was unable
to perf orm cer tain activi t i es s h e had done before the acc ident and had persistent problems with memory and conce ntration; she was in pain on a daily basis. By 2008, plaintiff still had the same complaints and had adopt ed “a n ew lower level of function”; in addition to the heada ches and decr ease d memory and conce ntration, she had fatigue, decr ease d endura nce, intermittent numbness and st ill experience d sensitivity to light and sound. The re sults of a
neuropsycholog ical exam wer e tec hnically within nor mal rang e, but be low expectation for plaintif f
, s u g g e s ti n g abnorma lity

. Dr. Chaisson stated that all these persistent sy mptoms wer e consistent with a closed he ad injury

. ¶ 16 Dr. Chaisson further testified that plaintiff will continue t o have daily pain, which she will have to find some way to manag e. She will perma nently have problems with short-term
memory and conc entration. She will also continue to experience numbness, neck pain and difficulty sleeping
, and curr ently has depre ssion and takes various medications. Dr. Chaisson stated t hat t hese sy

mpto m s are “not ex pecte d to g et better” and are “g oing to be more of a problem over time.” Ultimately
, Dr. Chaisson diagnosed plaintiff with a “conc ussive ty pe blow to her head which has resulted in a closed head injury” direc tly cause d by the acc ident, and that her injury is “per

manent” and “unlikely to g et any better at this point.” Dr. Chaisson also stated that plaintiff will require future medical car e “just to maintain her at a relatively comforta ble level,” and deta iled this, as well as its costs, for the jury

. ¶ 17 Brief

l y , phy sical thera

pist Mark Bookhout testified that he treated plaintiff on ref err al from Dr. Chaisson in J anuar y 2007. She prese nted with neck pain and heada ches and, while her X-ra y s and CT scan wer e neg ative, he diagnosed her with a signific ant whiplash injury

. Plaintiff continued with t hera py through Dec ember

2008 and improved; howe ver, she still had the same medical problems with which s h e b eg an treatment. Plaintiff returne d to Bookhout in September 2009, as ref err ed by Dr. Chaisson, and completed treatm ent in Dec ember 2009 with some improvement. Bookhout further testified that plaintiff’s head and neck pain wer e cause d by the acc ident, that her condition was perma nent and that she would

-5-require future tr eatment.

¶ 18 Dr. Kohn, a board- cer tified neurolog ist a

nd plaintiff’s reta ined medical expert witness, testified that he examined plaintiff both phy sically and mentally and took a detailed history
, examining her medical rec ords and rad i ologic al films. Ba sed on all this, Dr. Kohn opined that plaintiff had suffe red a mild traumatic brain injury
, a concussion and major depre ssive disorder seconda

ry to such an injury

. He also order ed a brain imag ing study called a SPEC T,

a specia l test that, though not definitive, provides an objective study and with which he was very familiar. The result of pl aintiff’s SP ECT was consistent with the trauma she suffere d in the acc ident wher e she hit her head. Her neuropsychology testing wa s also abnorma l,
sug g esting problems with cer tain brain are as consistent with this trauma. Dr. Kohn noted that all of her sy

mptoms afte r the acc ident wer e akin to those of a mild traumatic brain injury and postconcussion sy

ndrome, with which he ultimately diagnosed her. He stated that plaintiff’s injuries wer e perma

nent, including the limit ed rang e of motion in her neck, her cognitive and emotional difficulties, and her heada ches and neck pain; she also had torn cer vical ligaments and depre ssion. Dr. Kohn further testifie d that plaintiff would require future medical car e and
treatment, and he de tailed this for the jury

. ¶ 19 Dr. Ga lbraith, defe ndant’s retained medical expert witness, testified t hat he has been a board- cer tified neurolog ist for some 45 year s and has worke d at the Mayo Clini c, has had dozens of staff appointments at differ ent hospitals, was a clinical profe ssor and has published

sever al article s. Currently
, he does not treat patients, but does only “medicole g al consulting” work on l egal case s. He classified himself as an independe nt contra ctor who works for

sever al leg al consulting companies and aver red that 99% of his work is for the defe nse. He also described that he is paid for his consultation work and expert testi m o n y , an d he discussed his rate s for the jury

. ¶ 20 Reg arding plaintiff, he testified that he saw her twice and had rea d Dr. Kohn’s repor t. He

was in a g ree ment that plaintiff had hit he r head on the hood of the SUV, but disa g ree d that she had hit her head on the paveme nt. He opined that plaintiff had a head trauma but had not suffe red a head injury

. When he first saw her in 2007, he believed she suffe red from cer vical neck strain, shoulder strain and heada ches, but did not consider any of these to be perma nent injuries. He then sa

w her ag ain in 2008 at which time he de cipher ed notes from an MRIto be normal. Whil e he noted that she was still suffe ring from neck pain and h ea d ac h es , he considere d her balanc e to be normal and did not think she had light sensitivity beca use she
was not we aringsung lasses. He opined t hat Dr. Chaisson’s rec ords i ndicated plaintiff was fine and her neuropsycholog ical tests wer e within normal rang e. He ref uted any diagnosis that plaintiff had suffe red a closed head injury
, a traumatic brain injury or even a concussion from the acc ident. He further testified that plaintif f h as re ac h ed her maxi mum level of improvement and was not in need of any future medical car e, as there was no evidenc e of
perma nent injury

of any kind. ¶ 21 On cross-e x amination, Dr. Galbra ith a dmitted that all of his income derive s from hire d witness work but stated that, while some would classify this neg atively
, he was “not a hired
gun.” He also admi t t ed t h at h e did not know what a SPEC T test was until he revie wed plaintiff’s case

. He aver

red that he only revie wed written repor ts reg arding plaintiff and her
treatment and never once revie wed any of the actua l films of her radiolog ical examinations,

-6-s u ch as her CT scans or MRI s. He agree d that plaintiff had no prior history of head ac h es ,

dizz iness or depr ession, and that these wer e cause d by the acc ident; he also agree d that the
neuropsycholog ical tests show ed that plaintiff had some minimal impairment. Yet, he then

rea ffirme d his opinion that plaintiff had not suffe red a head or brain injury from the acc ident,

an d s t at ed that fac tors including how fast the SUV was trave ling when it hit plaintiff an d questions such as whether she was thrown in the air, hit her head on the paveme nt or landed

on someone else wer e all irrele vant to his conclusions beca use he was focuse d solely on the end re sult of this case which, in his opinion, was that plaintiff wa s fine. ¶ 22 At the close of trial, the jury returne d a verdic t in favor of plaintiff and ag ainst defe ndant in the amou n t o f $713,601.82. The jury itemiz ed the verdic t to include awa rds for loss of normal life experience d, future loss of normal life experience d, pain and suffe ring
, future pain and suffe ring
, rea sonable expenses of nec es s ary m edica l car e rec eived in the past, prese nt cash value of rea sonable expenses of medical car e rea sonably cer tain to be rec eived in the future, and l ost ear

nings. The t rial cour

t entere d judgme nt on the verdic t. Defe ndant filed a motion for a

new tria l or remittitur; the trial court de nied the motion.

¶ 23 ANALYSI S ¶ 24 Def

endant raises t wo princi p l e i ssues on appea l. In the first, she contends that the trial
court made five err ors that, alone o r i n combination, deprive d her of a fair trial. In the second, she contends that the jury ’s verdic t and the trial court’s judgme nt enter ed there on are

co n t ra ry t o t h e manifest weight of the evidenc e and should be vacated for a new trial or a remittitur. We address e ach se parately

.

¶ 25 I . Fa ir Trial Conce rns ¶ 26 As noted, defe ndant claims that her motion for a new trial should have been g rante d due
to sever al errors commit ted by the trial cour t which depr ived her

of her right to a fair trial. Essentially
, defe ndant is asking us to set aside the jury verdic t. A revie wing court wi l l set aside a jury verdic t only if it is ag ainst the manifest weight of the evidenc e, that is, only if the jury ’s finding s are unrea sonable, arbitra ry and not based on the evidenc e prese nted, or if the opposite conclusion is c lear ly appar ent. See Barth v . State Farm Fire &Casualty Co. , 371 I ll. App. 3d 498, 509 (2007) (standar d of revie w in challeng ing jury verdic t is that verdic t is
not disturbed unless contra ry to manifest weight o f ev i d ence ). In addition, whether a trial
court err ed in deny

ing a motion for a new tri al
, whi ch defe ndant insists occur red here
, is revie wed under an abuse of discretion standard. See Check v. Clif ford Chrysler-Plymouth of Buffalo Grove, Inc

. , 342 I ll. App. 3d 150, 157 (2003).

¶ 27 A. Plaintiff’s Opening Statement and Closing Argument ¶ 28 The first err or defe ndant asser ts is that she was denied a fair trial wh en the trial court allowed plaintiff to make “re peate d and unfair attacks” on Dr. Galbra ith and defe nse counsel during opening statement and closing argument. She isolates two quotes from plain t iff’s opening statement wher ein plaintiff commented that Dr. Galbra ith was “a hired witness” and

-7-h as “made a car eer out of” this. She then quotes portions of plaintiff’s closing ar gu m en t

wher ein plaintiff called the leg al companies for which Dr. Galbra ith works “a fac tory or an assembly line of defe nse opinions and defe nse repor ts” and commented g ener ally on Dr. Galbra ith’s compensation, along with a statement that defe nse counsel “just doesn’t like the evidenc e” a

nd was “ talking out of

both sides of their mouth” while Dr. Galbra ith has been “riding that defe nse train” for the last sever al year s. Def endant claims t hat these wer e “blatantly argumentative” and “inflammatory” rema rks that wer e “unre asonable and highly prejudicia l,” there by

meritingreve rsal as a

matter of right. We disagree

. ¶ 29 Opening statements are m eant to apprise the jury of what the parties intend to prove at trial. See People v. Phillips
, 392 I ll. App. 3d 243, 268 (2009). Whil e no comment should be made there in that counsel will not or cannot prove, opening s t at em en t may include a discussion of expected evidenc e and rea sonable infere nces to be drawn there from. See Phillips
, 392 I ll. App. 3d at 268. Reversa l based on improp er co m ments during opening
statement will occur only when the comments are made deliberately via misconduct and result in subst an t i al prejudice to the opposing party such that the result of the trial would have been differ ent had the comments not be en made. See Phillips , 392 I ll. App. 3d at 268 (discre tion a s to pr opriety of comments lies with trial court and ever y presumption is made that discretion was exercised)

. Simi larly
, the standard o f re v i ew i n the examination of specific rema

rks made during closing arguments is whe t h er t he rema rks wer e of such char acte r as to have preve nted the opp o s i n g party from rec eiving a fair trial. See Lewis v. Cotton Belt Route–St. Louis Southwestern Ry. Co.
, 217 I ll. App. 3d 94, 119 (1991) ( citing Trice v. Illinois Central Gulf R.R. Co.
, 127 I ll

. Ap p

. 3 d 1 0 1 9
, 1022 (1984))

. It is well established that a party is aff orded b ro ad l at i tude in making her closing argument. See W eisman v. Schiller, Ducanto &Fleck , Ltd. , 368 I ll. App. 3d 41, 62 (2006); accord Lewis
, 217 I ll. App. 3d at 119 (citing American National B a n k & T r u st Co. of Chicago v. Thompson
, 158 I ll. App. 3d 478, 487 (1987))

. Whil e it is improper to make persona l opinions of and unju s t i fied attacks on the opposing party which are unsupported by evidenc e of

rec ord, it is not improper to comment during closing arg ument on the opposing party ’s

cre dibilit y or judgme nt when those rema rks ar e base d on fac ts in evidenc e. See Lewis
, 217 I ll. App. 3d at 12 0 -2 1

. Ultimately
, a trial court is g iven discretion in the scope of closing
argument and its judgme nt a s to the propriety of the comments there in w ill not be reve rsed unless the rema

rks areof a c hara cter

that preve nted a f

air trial. See W

eisman
, 368 I ll. App. 3d at 62. ¶ 30 Ba sed on our revie w of the re co rd b ef o re u s , we find that the cited comments do not merit reve rsal, nor was it err or for the trial court to allow them. The comments did not cause any substantial prejudice ag ain s t d efendant beca use they wer e all supported by fac ts in

ev i d en ce befor e the jury

. For example, it was alway s undisputed that Dr. Galbra ith wa s a “hire d” witness. During the parties’ expert witness disclosures befor e trial, this was alre ady evident. And, at the outset of his t es t i m ony , Dr. Galbra ith himself testified on direc t examination that he had been hired to revie w this case

. He even volunteere d for the jury
, in his own words, that while some would classify his work as being “a hired gun,” he was not

one. Reg arding the comment about his “ca ree r,” it is true that, as defe ndant brought out during trial, Dr. Galbra ith had a long and commendable car eer as a treating doctor; clea rly
,

-8-he worked for the Mayo Clini c, published ar ticles and ha d dozens of staff appointments at differ ent hos pitals aro u n d t h e country

. Howeve r, as was brought out by defe ndant herself, in the last sever al year s, Dr. Galbra ith’s e ntire prof essional time has been devoted to be ing

an independe nt contra ctor providing “medicole g al” service s. He does not treat pat i en t s o r prac tice medicine an

y mo re

. U n d eniably
, and by his own admission, then, revie wing medicalleg al case s, consulting on them and testifying in court is curr ently Dr. Galbra ith’s “ca ree r.” Moreove r, Dr. Galbra ith went on to testify befor e the jury that he is employed as a consultant for some four or five differ ent companies that provide medical consultations in leg al matters, and that 99% of the time he works for defe ndants. He also told the jury not only the fac t that he is compensated for this work, but discussed specific s with respe ct to how much he is paid. ¶ 31 It is clea

r to us that, in light of this, there was n o error here

. All of plaintiff’s re marks made during opening statement and closing argument about Dr. Galbra ith wer e borne out by the evidenc e prese nted at trial

. Acc ording ly
, we find no prejudice and will not reve rse the jury ’s ver dict on this ground. ¶ 32 We further find no err or in plaintiff’s comments about defe nse counsel, which def endant classifies as a persona l attack. Ag ain, plaintiff to l d t h e j ury at the end of trial that defe nse counsel did not “like the evidenc e” and was talking “out of both sides of their mouth.” First,

we do not rea d such statements to constitute a persona l attack. Rather, these wer e simpl y natura l observations made by an attorney of his opposing counsel. Clearly
, defe ndant did not “like the evidenc e” prese nted on plaintiff’s behalf from her expert Dr. Kohn and that is why she prese nted the testimony of her own exp ert, Dr. Galbra ith. Moreove r, in revie wing the

rec ord, we note t hat pl aintiff made these comments about defense counsel du ri n g rebuttal closing argument and in light of defe nse counsel’s consistent and repe ated comments befor e the jury in her own closing arg ument that plaintiff was not being honest in her sy mptoms or, at the very least, there was no “objec tive” evidenc e reg arding them. In fac t, plaintiff’s h o n esty about her pain was something Dr. Galbra ith mentioned more than once in his testimony . During closing argument, plaintiff re viewed this and note d, contra ry to defe nse counsel’s insinuation, that even Dr. Galbra ith finally admitted he believed plain ti f f w a s being honest about her p ai n

. I f any thing, then, plaintiff’s comments reg arding defe nse counsel obviously comprised a

n invited response to de fense counsel’s theory of the c ase a

nd, thus,

wer e proper

. See, e.g. , People v. Nieves
, 193 I ll

. 2 d 513, 534 (2000) (whe n defe ndant’s closingargument attacks State’ s case , State is entitled to respond). ¶ 33 T h er efor e, pursuant to our discussion, we find that the trial court d i d n o t ab u s e i t s discretion in overr

uling defe ndant’s objections to the cited comments made by plaintiff
reg arding Dr. Galbra ith and defe nse counsel durin g h er o pening statement and closing
argument.

¶ 34 B. Trial Court’s Ruling Reg ardingYar row ¶ 35 Def

endant’ s next claim of erro r ce n t er s o n i t s ru l i ng reg arding occur renc e witness Yar row. As noted earlier, befor e trial, plaintiff took the evidence depositions of her

cowor kers Yar row and Dobbs, who wer e both prese nt at the time of the acc ident. When the

case went to trial, defe ndant moved to bar their testimony

. Howe v e r , a f ter defe ndant admitted

-9-liability
, plaintiff informed the court she would only be prese nting the testimony of Dobbs,

since Yar row had not actua lly seen the impact. At this point, defe ndant withdrew her motion and asked the trial court if she could call Yar row in the event plaintiff did not. The trial court denied this. ¶ 36 Def

endant i n s ists that the trial court improperly ref used to allow her to call Yar row to testify beca

use plaintif

f, wh o deposed her, elec ted not to call her as a witness. Def endant further argues that Yar

row’s testimony wa s key to her case beca use it contra dicted Dobbs
reg arding the nature of the impact, namely
, reg arding whether plaintiff was thrown in the air, whether she landed inside or outside the crosswa lk, and whether she lost consciousness. We disagree

. ¶ 37 The rec ord in this cause reve als that, in contra diction to defe ndant’s char acte rization that the trial court denied her reque st b ec au s e plaintiff, rathe r than defe ndant, had deposed Yar row, the trial court’s conce rn s were clea rly very differ ent. That is, upon rea ding its pretria l colloquy on this matter, the court m ade its ruling on the undeniable fac t that defe ndant had never disclosed Yar row as a witness in her I llinois Supreme Court Rule 213(f) (ef f. J an. 1, 2007) witness disclosures. The court thoroughly discussed this with defe ndant, noting that it had no leg al basis to allow her to call Yar row beca use Yar row “wa sn’t [t he defe nse’s] witness and never was [t he defe nse’s] witness.” After the court remin d ed defe ndant of this fac t, defe ndant l ooked over her Rule 213 disclosures and admitted to t he court that it was r ight: she ne ver disclose d Yar row a s a witness for

the def ense. ¶ 38 The I llinois Supreme Court rules reg arding discovery are mandatory rules of proc edure that the courts and counsel are mandated to follow. See W ilbourn v. Cavalenes
, 398 I ll. App. 3d 837, 849 (2010); W

arrender v. Mi l l

sop , 304 I ll. App. 3d 260, 268 (1999). This is particula rly true of Rule 213(f)
, which g overns the disclosure of witnesses for trial. See, e.g. , W ilbourn
, 398 I ll. App. 3d at 849; W arrender
, 304 I ll. App. 3 d at 268. I llinois Supreme Court Rule 219(c) (ef

f. J uly 1, 2002) allows a trial court to impose sanction s , i n cludi ng barring a witness from testifying at trial, when a party fails to abide by witness d i s cl o s ure rules. See N

ed z ve ka s v. Fung
, 374 I ll. App. 3d 618, 620 (2007). The imposit ion of such a sanction is within the trial court’s dis cr et i o n , and the court’s decision of what sanction to impose will not be disturbed on appea l absent abuse of that discretion. See Nedzvek as , 374 I ll. App. 3d at 620. When examining the trial court’s decision, we are to co n s i d er s ever al fac tors, such as surprise to the opposing p ar t y , the prejudicia l eff ect of the witness’s testimony , the nature of the testimony , the dilige nce of the adverse party
, the t imeliness of the objection and the g ood faith of the party offe ring the testimony

. See Nedzvek as , 374 I ll. App. 3d at 620. No one fa ct o r i s deter minative, and eac h case prese nts a unique fac tual situation that must be considere d independe ntly when revie wing the propriety of the particula r sanction. See Nedzvek

as , 374 I l l

. Ap p

. 3d at 620. Ag ain, the ultimate decision
reg arding the admissibili ty of evidenc e lies within the sound discretion of the trial court and will not be reve rsed unless that discretion was clea rly abused. See W

ilbourn
, 398 I ll. App. 3d at 847-48 (abuse occur s only when no rea sonable person would adopt court’s view, and party seeking reve rsal bea

rs burde n of establishingrequire d substantial prejudice ). ¶ 39 In the instant cause , th e re co rd i s quite clea r that defe ndant failed to comply with discovery rules when it c ame to calling Yar row as a witness for her case

. She admitted this

-10-to the trial court during its colloquy on the matter. Her excuse was that she could “only

guess” that s h e d i d n ot disclose Yar row beca use she was “unaw are that [Yarrow] was an actua l witness” and “only lear ned of her testimony at her evidenc e depos i t i o n .” Howeve r,

even at that point, defe ndant did not attempt to add Yar row as a witness for the d ef en s e. Instead, as the rec o rd shows, defe ndant actua lly filed a motion to bar Yar row’s testimony from trial. Ultimately
, and contra ry to de fenda

nt’s char acte rization of the court’s colloquy
, it did not matter to the trial court who had deposed Yar row. Rather, its conclusion was that, since defe ndant never took the time to disclose her acc ording to Rule 213(f)
, she could not call her as a w itness now. ¶ 40 Reviewing the trial court’s decision, we find that it was well within its discretion to bar Yar row’s testimony

. Once the court pointed out defe ndant’s discovery omission befor e trial, defe ndant no longe r arg

ued the point and never made an offe r of proof reg arding Yar row. In addition, we do not believe, as defe ndant insists
, that Yar row’s testimony would have been rel ev an t h er e. Ag ain, while Yar row was prese nt at the acc ident, she did not see the actua l impact of defe ndant’s SUV hitting plaintiff. Acc ording ly
, and ag ain contra ry to defe ndant’s insistence, Yar

row could not have testified reg arding whether plaintiff was thrown in the air,

nor was her observation that plaintiff was lying i n the crosswa lk afte r the acc ident at all rele vant to whether she was in the crosswa lk at the time she was hit. Simi larly
, any testimony Yar row could have provided stating that plaintiff never lost consciousness would have been immaterial. Whil e plaintiff testified she could not reme mber whether she lost consciousness, Dobbs, who actually saw what had happened, testified unequivoca l l y that plaintiff di d not lose consciousness. Thus, the same statement from Yar row, who admitted she had not seen what happe ned, would have been, a t best, redunda

nt. ¶ 41 There fore
, based on the rec ord befor e us, we find th at t h e trial court did not abuse its di s cr et i o n in barring defe ndant from calling Yar row as a witness for the defe nse afte r defe ndant failed to disclose her as a witness and her testimony would have been immaterial to the pertinent issues at tria l.

¶ 42 C. Trial Court’s Ruling Reg ardingHee rema ¶ 43 De fendant’s third claim of trial court err or is her asser tion that the court impro p er l y d enied her motion to bar plaintiff’s friend and cowor ker Hee rema from testifying as a lay witness and giving “unqualifie d subjective opini ons” as to plaintiff’s “mental status” af ter the acc ident. She claims that Hee rema ’s testimony did not have a proper foundation beca use it was not based on “ objective f acts.” We disag ree

. ¶ 44 Ag ain, the decision whether to admit evidenc e lies within the sound discretion of the trial
court and will not be reve rsed unless that discretion was clea rly abused. See W

ilbourn
, 398 I ll. App. 3d at 847-48. This includes the admission of lay witness testimony

. See Zoerner v. Iwan
, 250 I ll. App. 3d 576, 580 (1993). Whil e it i s t ru e th at a l ay witness should not be permitted to testify to a leg al co n cl u s i o n at issue (see Town of the City of Bloomington v. Bloomington Townshi

p , 233 I ll. App. 3d 724, 735 (1 992)), a lay witness can express an opinion on an issue in a cause if that opinion will assist the trier of fac t (see Zoerner
, 250 I ll. App. 3d at 580). Acc ording ly
, as long as this opinion is based o n the witness’s persona l

-11-observation, is one that a person is g ener ally cap able of making
, and is helpful to a clea r understanding of an issue at hand, it may be permitted at trial. See Zoerner
, 250 I ll. App. 3d
at 580 (the opinion must be rationally based on the witness’s perc eption and be helpful to the witness’s testimony

or to resolvinga fa ct at issue). ¶ 45 Intere stingly
, here
, defe ndant’s motion to bar He er em a s o u gh t t o prohibit her f rom testifying as to any medical opinions she would try to g ive in her capa city as an occupational thera pist; afte r all, the case involved neurolog ical injury to someone who, al o n g wi t h her

cowor kers, spent her life working in this very field. The court rea ssured defen d an t t h at it would not permit Hee rema to te stify in that c apac ity but, r ather
, only as a friend who knew plaintiff bef

ore the acc ident and had obse rved he r af ter it. ¶ 46 An d
, up o n o u r revie w of the rec ord, this is exactly what occur red. Hee rem a wa s plaintiff’s friend and cowor ker for some 25 year s. She testified that, befor e the acc ident, she would see plaintiff about twice a year and knew her to be a high- functioning
, intelligent

woman who was confide nt and often spoke in front of large gro up s of cowor kers at confe renc es as part of the responsibilities of her job. Hee rema further testified that she saw plaintiff 10 day s afte r the acc ident and immediately noticed that she was experiencing mental impairment. Not only could plaintiff not f igur e out where she was g oing, but she could not

even reme mber her long- time friend’ s name; clea rly
, plaintiff was not “ac ting like herse lf.” In addition, Hee rema testifi ed t h at , o nce plaintiff chang ed jobs, she saw her more often, about ever

y two months, and noticed her to be slower to respond, m ake mistakes, and experience memory

problems–unlike the per son she was be fore

. ¶ 47 Fr om all this, the rec ord is clea r that Hee rema had ample o p p o rt u n i t y to observe both plaintiff’s phy sical conditi o n and mental status and, thus
, had a proper foundation as a lay witness to testify as to her persona l observa tions reg arding t h es e. W e find nothing in our

rea ding of her testimony to sug g est, as defe ndant claims, that she testified to matters beyond her observations or that she made observations that wer e beyond those any person who has known and worke d with another for over 25 year s is capa ble o f m ak i ng

. In addition, Hee rema ’s testimony clea rly went to a centr al issue of the trial–plaintiff’s injuries from the

acc ident. There fore
, we find no abuse of discretion on the part of the trial court in allowing Hee rema to testify as she did at tria l.

¶ 48 D. Trial Court’s RulingReg ardingDr. Kohn ¶ 49 Def

endant nex t claims that the t rial court err ed in deny ing her mot ion to bar Dr

. Kohn from testifying as a rebuttal witness. She asser ts that, beca

use Dr. Galbra ith did not prese nt any new, aff

irmative matters requiring rebuttal, Dr. Kohn’s opinions wer e only cumulative of Dr. Chaisson’s t es t i m o n y and, thus, did not constitute proper rebuttal evidenc e. We disagree

. ¶ 50 I f a defe ndant prese nts an aff irmative matter to support her case -in-chie f, the plaintiff has the right to prese nt evidenc e in rebuttal to that m at t er

. S ee Chapman v. Hubbard W oods Motors, Inc.
, 351 I ll. App. 3d 99, 106 (200 4 ). Such rebuttal evidenc e is admissible if it explains, repe ls, contra dicts or disproves the evidenc e prese n te d

. Se e Chapman
, 351 I ll. App. 3d at 106; Lagestee v. Days Inn Managem ent Co.
, 303 I ll. App. 3d 935, 942 (1999) (quoting

-12-People ex rel. Mende z v. Villa
, 260 I ll. App. 3d 866, 870 (1994))

. J ust as with the admission of any evidenc e, the decision whether to admit rebuttal evidenc e lies within th e s o u nd discretion of the trial court and will not be disturbed absent an abuse of that discretion. See Chapman
, 351 I ll. App. 3d at 106; Hoem v. Zia
, 239 I ll. App. 3d 601, 619 (1992). Reg arding rebuttal evidenc e in particula r, abuse occur s only when a party is preve nted from impeaching

a witness, reha

bilitating the cre dibilit y of an impeache d witness, or responding to new points raised. See Chapman , 351 I ll. App. 3d at 106; Hoem , 239 I ll. App. 3d at 619. ¶ 51 We find no abuse of discretion in the t ri al co u rt ’s d ec i s i o n t o allow Dr. Kohn’ s testimony

. In her pretria l Rule 213(f)( 3) disclosures, defe ndant stated she would be calling Dr. Ga lbraith to testify

that, in his expert medical opinion, pl aintiff had not suff ere d either

a closed head injury or any kind of traumatic brain injury
, and that there was no objective test that would show she had. Plaintiff, in response , disclosed that she would be calling Dr. Kohn to rebut these opinions. And, this was, in fa ct, the information to which Dr. Kohn testified
at trial. He discussed that he examined plaintiff both phy sically and mentally and looked over all o f h er m edica l rec ords and radiolog ical films. He also described the SPEC T test he order ed for plaintiff, which he explained was an objective brain imag ing study

. He testified that, contra

ry to D r. Ga lbraith’s opinion, this test showed abnormalities in plaintiff’s bra in function, consistent with the acc ident in which she hit her head. Fr om all this, he conclude d that Dr. Galbra ith was mistaken in his opinions and, instead, Dr. Kohn opined that plaintiff had suffe red a mild traumatic brain injury
, a concussion and postconcussion sy ndrome with
perma nent sy mptoms t hat would re quire futur e medica l car e and tr eatment. ¶ 52 Dr. Kohn’s testimony here was not, as defe ndant i n s i s t s , m er el y cumulative of Dr. Chaisson’s. To the contra

ry , while they may have been along the same lines and rea ched very simil ar medical conclusions afte r revie wing the same scena rio, their testimony was also very differ ent. Dr. Chaisson mainly testified reg arding plaintiff’s actua l treatment; Dr. Chaisson

was , as n o t ed, plaintiff’s treating phy sician. Dr. Kohn, meanwhile, testified as a medical expert who revie wed plaintiff’s case and, thus, provide d a n entirely differ ent perspe ctive. For example, Dr. Kohn, unlike Dr. Chaisson, was able to challeng e Dr. Gal b raith’s medical opinions, particula

rly with his use and discussion befor e the jury of the S P E C T test–an objective, medically diagnostic tool that Dr. Galbra ith, who had stopped prac ticing medicine

some 10 year s ag o, admitted he had never even heard of befor e this trial. Fr om this example alone, it is clea

r that Dr. Kohn’s testimony
, which was used to c ontradict and disprove that of Dr. Galbra ith on an expert level, was proper rebuttal evidenc e and not mere ly cumulative. ¶ 53 As a side note on this topic, we acknow ledg e defe ndant’s repe ated notatio n s t h at t h e admission of Dr. Kohn’s testimony was further compromised beca use it came befor e, rathe r than afte r, that of Dr. Galbra ith. Def endant is corr ect that Dr. Kohn, essentially
, testified “out of turn.” The rec ord show s t h at , i n s t ead of testifying afte r Dr. Galbra ith, which is ty pical when a witness is called t o s p ec ifically rebut the testimony of another
, Dr. Kohn testified befor e Dr. Galbra ith to a ccommodate a scheduling issue at trial. Acc ording ly
, as defe ndant notes, by the time Dr. Kohn testified, the jury had alre ady hear d from Dr. Chaisson, but not
yet from Dr . Galbra ith. ¶ 54 Ho we v er , i n o ur view, what occur red here did not disqualify Dr. Kohn as a re buttal witness or som ehow make h i m l es s o f one. We have alrea dy discussed t hat hi s testimony
,

-13-while in the same vein as that of Dr. Chaisson, was not solely cumulative of hers. In addition,

any prejudice that could have resulted from Dr. Kohn’s testimony as a rebuttal witness was actua lly wiped awa

y , in defe ndant’s favor no less, p re ci s el y beca use he testified “out of order .” That is, instead of counter ing Dr. Galbra ith’s tes timony and leaving defe ndant without the opportunity to have the last word on the medical evidenc e, as would have been the case if Dr. Kohn testified afte r Dr. Galbra ith, the complete opposite occur red. Wit h Dr. Kohn testifying befor e Dr. Galbra ith, defe ndant had the chanc e to use Dr. Galbra ith to attack Dr. Kohn’s testimony
, word for word, before the j ury

. Moreove r, because o f t h e sequenc e of testimony
, th er e wa s n o conce rn, as there may be with other rebuttal witnesses, that defe ndant did not h av e t he opportunity to impeach Dr. Kohn, reha bilitate Dr. Galbra ith’s

cre dibilit y , or re sponded to Dr. Kohn’ s points. ¶ 55 Fr om a ll this, we find that the trial court did not err in allowing Dr. Kohn to te stify as a rebuttal witness at trial.

¶ 56 E. Evidence of Plaintiff’s Tre atment ¶ 57 Def

endant’ s final claim of trial court err or involves testimon y re gar d i n g p l ai ntiff’s
treatment following the accid en t

. Def endant contends that the t rial court err ed in allowing the jury to hear testimony and argument that plaintiff did not continue with phy sical thera py beca use of the cost. She points to two statements in the rec ord made by plaintiff that she did not continue to see phy sical t hera pist Bookhout after the acc ident beca use the ther apy

was costly
, and to a comment made by plaintiff’s counsel du ri n g cl o s i ng argument that the thera py was costly

. Def

endant insists that these statements wer e unduly prejudicia l beca use they improperly evidenc ed the wea lth of t he par ties and, thus, the trial cour t’s decisions to

overr ule her trial objections to these comments amounted to reve rsible error. Ag ain, we disagree

. ¶ 58 First, we wish to note some mischara cter izations prese nted by defe ndant in her brief on appea l. Def

endant ref

ers to three differ ent inst an ce s h er e. Reg arding the first, the rec ord shows that, as she cross-e x amined plaintiff during her testimony
, defe ndant attempted to sug g est to the jury that plaintiff stopped seeing Bookhout of her own acc ord beca use she was

no longe r in pa in, a

nd asked her if it wa s true that she had not se en Bookhout in the last 15 months. Plaintiff responde d to defe ndant’s question by saying that the phy sical thera py was costly

. Def

endant objected, and the trial court sustained her objection. In the second instance, defe ndant continued cross-e x amining plaintiff on this topic and elicited that plaintiff did not, at this point in time, have an appointment with Bookhout to continue her thera py

. On redire ct examination, in an attempt to deal with defe ndant’s sug g estion that plaintiff stopped seeing Bookhout beca

use she did not need additional treatment, plaintiff’s counse l a sked her why she no longe r saw Bookhout. Plaintiff ag ain t es tified that phy sical thera py was too costly

. Def endant objected, but this time, the trial court overr uled her objection. Finally
, reg arding the third instance, plaintiff, during closing argument, noted for the jury that this lawsuit was the only opportunity she would have t o re co ver for her injuries and, particula rly
, that she could not come back later ag ainst defe ndant seeking compensa tio n f o r mo r e “ c o s tly

” p hy sical thera py or other tr eatment. De fenda nt objected, a

nd the trial cour

t ove rruled her obje ction.

-14-¶ 59 Fr o m t h i s , it is clea r that there was no err or here

. Ag ain, in the first instance, th e t ri al
court actua lly sustained, and did not overr ule, defe ndant’s o bjection. Thus, she cannot complain in this reg ard. As to the second instance, the rec ord shows that plaintiff’s comment

came in response to defe ndant’s intimation to the jury that plaintiff did not curr ently have an appointment with Bookhout and had st opped see ing him bec ause she felt she did not need ad d i t i onal t reatment. Def endant’ s sug g estion clea

rly invited plaintiff’s response as to why she was no longe r seeing Bookhout, particu l ar l y beca use defe ndant knew from plaintiff’s deposition, as contained in the rec ord, that her insurance was no longe r covering her phy sical thera py

. Finally
, the trial court had no basis to sustain plaintiff’s counsel’s comment during closing argument beca

use it was, simply put, true: what the jury chose to award plaintiff would constitute the end of her case and she would not be able to return to co u rt later to claim more mone y

for a ny future, a nd costly , treatment. ¶ 60 In addition, we fi n d t h e re ce n t decision of Vanoosting v. Sellars
, 2012 I L App (5th) 110365, to be instructive here

. Briefly
, in Vanoosting
, the plaintiff sued the defe ndant afte r

1 he rea r-e nded her car

. She soug ht damag es for her injuries, including past and future pain and suffe ring

. J ust as in the instant case , the d ef en d an t admi tted neg lige nce, and the cause proce eded to a jury trial on damag es only

. Be fore trial, the plaintiff filed a motion in limine seeking to introduce evidenc e that she did not have medical insurance as the explanation for the defe ndant’s claim t h at s he soug ht littl e or no medical treatment in the last three year s. T he trial court denied the plaintiff’s motion and told the parties it did not think it wo u l d become an issue. The plaintiff, howeve r, made clea r her conce rns that any mention of the fac t that she had not see n a doctor in so long may

cause the jury

to infer that she was no long er in pain which would aff

ect her claim for future pain and suffe ring
, and su ggested that she should be allowed to e x plain her rea sons for not seeking further trea tment ( i.e.
, no medical

cover ag e and could not othe rwise aff ord it). L ater , at trial, sever al instances arose in which the defe ndant continued to make ref ere nce to the plaintiff’s three -year g ap in treatment, and the plaintiff was preve nted from testifying as to why

. The jury returne d a verdic t in favor of the pl aintiff, but did not awa rd h er an y

th i n g for future medical expenses. See Vanoosting
, 2012 I LApp (5th) 110365, ¶ ¶ 3-20. ¶ 61 On appea l, the revie wing court discussed the principles of rele vant evidenc e and unfair prejudice
, and conclude d that the evidenc e the plain t i ff sought to introduce reg arding her financ ial position and lack of medical insurance should have been admitted and the trial court had committed reve rsible err or in excluding it. See Vanoosting
, 2012 I L App (5th) 110365, ¶¶ 22-24. This was beca

use the evidenc e rela

ted direc tly to a contested point at issue, namely
, the extent of the plaintiff’s injuries and whether she should be entitled to an awa rd for future pain and suffe ring

. See Vanoosting
, 2012 I L App (5th) 110365, ¶ 25. The Vanoosting court noted that this was particula rly true in light of the circ umstances o f t h at case , wher e the defe ndant continuously pointed out to the jury in his cross-e x amination of witnesses and in closing argument that the plaintiff had not rec eived medical treatment in the last three year s.

We not e for the re cor d tha t in J uly 2006 , afte r app el la te bri ef ing but bef

ore ora l ar gum ent 1

was hel d in thi s m at te r, pla int if f m oved to ci te Vano ost ing as sup ple m ent al aut hor it y re gardi ng thi s is sue . Aft ercon si der ing herm oti on, a s we ll as def end ant ’s re spo nse th er et o, we grant ed i t.

-15-See Vanoosting , 2012 I LApp (5th) 110365, ¶ 25. ¶ 62 T h e i n s t an t ca u s e m i rr o rs Vanoosting and merits the same result. Def endant h er e repe atedly insinuated to the jury that plaintiff had s t o p p ed seeing Bookhout and rec eiving phy sical thera

py afte r the acc ident o f h er own acc ord beca use she was not rea lly in pain
any more and felt s he no longe r neede d this treatment. Such intimation was in direc t contra diction to the evid en ce and testimony that plaintiff prese nted, i.e.
, that she neede d
ong oing and future car e for he r per sistent injuries from the ac cident. Ac cording ly
, and just

as in Vanoosting
, the contested testimony went prec isely to a centr al co n t roversy of the

case–the extent of plaintiff’s injuries and whether she is entitled to damag es for future pain and suff ering/medical tre atment. And, just as in Vanoosting
, this is particularly signific ant in light of defe ndant’s strategy of consistently highlighting that plaintiff had stopped seeing Bookhout. There fore
, the trial court in the instant cause properly allowed plai n t iff’s testimony in this reg ard. ¶ 63 For these rea sons, we find t h at t h e trial court did not abuse its discretion in allowing plaintiff to testify

that she eve ntually

stopped her physical thera py beca use of the c ost. ¶ 64 Ul t i m at ely
, based on the rec ord befor e us, we conclude that none of the five instance s cited by defe ndant on appea l, either individually or in combination, demonstrated trial court

err or in any form, nor did they deprive her of a fair trial in any way as to require reve rsal of the jury ’s ver dict in favor of plaintiff.

¶ 65 I I . Manifest Weight and Remittitur ¶ 66 Def

endant’ s second, and final, contention on appea l is that the jury ’s verdic t and the trial court’s judgment enter ed there on wer e contra ry to the manifest weight of the evidenc e and should be vacated for a new trial or a remittitur. She maintains that, beca use the rec ord shows plaintiff did not lose consciousness, continued to work for a time at her full-time job, had no signific ant findi ng s on any neurolog ical ex aminations, had o n l y subjective pain and could still perf orm many of the same activities she did befor e the acc ident, the judgme nt was cl early contra

ry to the manifest weight of the evidenc e. Alternatively
, she argues t h at , beca use plaintiff’s medical expenses totaled only $25,824.34, the verdic t o f $ 7 1 3
, 6 01.82 was clea rly excessive and mustimmediately be re duced. We disagree with both of defendant’ s arguments here

. ¶ 67 Aga in, a revie wing court will set aside a jury verdic t only if it is ag ainst t h e m an i fe s t weight of the evidenc e, that is, only if the jury ’s finding s are unrea sonable, arbitra ry and not based on the evidenc e prese nted, or if the opposite conclusion is clea rly appar ent. See Barth
, 371 I ll. App. 3d at 509. Moreove r, a remittitur should be employed only when a jury ’s awa rd falls outside the rang e of fair and rea sonable compensation, appea rs to be the res u l t of passion or prejudice
, or is so larg e that it shocks the j u d i ci al conscie nce; it should not be order ed if the a

war d “ ‘f alls within the flexible rang e of c onclusions which ca n rea sonably be supported by the facts.’ ” Epping v. Commonwealth Edison Co.
, 315 I ll. App. 3d 1069, 1072 (2000) (quoting Lee v. Chicago Transit Authority
, 152 I ll. 2d 432, 470 (1992))

. There is no mathematica l formula for deciding whether a jury aw ard is fair and rea sonable. See Carroll v. Preston Trucking Co. , 349 I ll. App. 3d 562, 572 (2004); acc ord Epping
, 315 I ll.

-16-App. 3d at 1072 (there is “no litmus test” and this is why we must examine the rec ord in eac h

case ). Some fac tors to consider include the extent of the injuries suffe red and the perma nency of the plaintiff’s conditi o n , t h e plaintiff’s ag e, the possibili ty of future deter ioration, the
extent of the plaintiff’s medical expenses, and the restric tions imposed on the plaintiff by the injuries. See Carroll
, 349 I ll. App. 3d at 572; acc ord Epping
, 315 I ll. App. 3d at 1072. Whil e the question of whether a remittitur should be g rante d is g ener ally one of law, the assessment of damag es is primarily an issue of fac t for the jurors and, thus, defe renc e must be g iven to the car eful deliberative proce ss the jury employ s on this issue. See Epping
, 315 I ll. App. 3d at 1073 (damag es aw ard “ ‘must be examined in the light of the particula r injury involved, with humble defe renc e to the discretion of the j u ry an d the judgme nt of the trial court’ ” (quoting Kopczick v. Hobart Corp.
, 308 I ll. App. 3d 967, 979 (1999)) ); see also Carroll
, 349 I ll. App. 3d at 572. There fore
, as we have stated, we will not reve rse the jury ’s awa rd unless it is unrea sonable, shocking or the result of prejudice

. See Carroll
, 349 I ll. App. 3d at 571. ¶ 68 First, based on our thorough revie w of the rec ord in the instant cause , we do not find that the verdic t ag ainst defe ndant and in favor of plaintiff was ag ainst the manifest weight of the evidenc e. Ag ain, defe ndant admitted liability ; while stopped at a signa l waiting to turn, she took her foot of the brake of her SUV and beg an to acc eler ate, hitting plaintiff while plaintiff

was a pedestr i an crossing the street in front of her. There fore
, we do not see how any opposite conclusion could be r eac hed base d on this. ¶ 69 Moreove r, we further find that a remittitur is not war rante d here for any rea son. In light of the rec ord, the amount the jury awa rded to plaintiff was not unrea sonable, shocking or the result of prejudice

. The evidenc e showed that, befor e this acc ident, plaintiff was a 47-year

old, intelligent, high- functioning
, active adult who hel d a full-time competitive job and perf ormed many social and outdoor activities with her family

. After the accident
, p l aintiff beg an to suffe r marke d cognitive, emotional and phy sical difficulties. She wa s confuse d, could not reme mber her long- time f riend’s name, ha d to chang e jobs, g ot easily frustrated, suffe red from depre ssion and could not operate at the same level she d i d b efor e. Significa ntly
, she is in pain on a daily bas i s

. She experience s heada ches, is now quite sensitive to light and sound, has numbness and neck pain, and has difficulty sleeping ; she has
to take pain medication befor e and afte r she wants to participate in many of the same activities she used to easily perf orm befor e. She was diagnosed with a closed head injury and neurologic al tests showed abnorma lities in her brain. Severa l medical witnesses, who consistently treated her and revie wed of all her medical rec ords, testified that her condition

was perma

nent and that she would need futu re m ed i ca l car e and treatment. They also testified that her pain and sy mptoms will become more of a problem over time. None of these fac tors, when taken in combination or even alone, supports d efendant’s reque st for a remittitur. To the contra

ry , the jury ’s brea

kdown of its awa

rd was appropriate and in line with the evidenc e prese nted at trial. Whil e it may be true, as defe ndant points out, that plaintiff’s 2 medical bills amounted to only $25,824.34, the jury made clea r that its awa

rd contained more

We not e for the re cor d tha t def end ant nei the r ar gues the it emiz at ion of the j ury’s m one ta ry 2

awar d nor at ta cks i t s spe ci fi cs, not even it s awar d for future m edi cal cos ts

. Rat her
, she m akes her

ar gum enton gene ra li ti es onl y. Accor din gly , we d o t he s ame.

-17-than t his, such as co mpensation for plaintiff’s past and future l oss of normal life, past and

future pa in and suffe ring , future me dical costs and lost ea rning s. ¶ 70 Ultimately
, based on all this, we find that defe ndant’s final arguments here lack any merit and do not support reve rsal of the jury ’s v erdic t or the trial court’s judgme nt there on, nor

war rant a remittitur.

¶ 71 CONCLUSI ON ¶ 72 Acc ording ly , for a ll the foreg oing r easons, we aff irm the judg ment of the trial c ourt.

¶ 73 Affir

med.

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