SIXTH DIVISION 

September 1, 2006 

No. 1-03-0106 

MICHAEL LANGE and LINDY LANGE, ) Appeal from the 

Individually, and as Special ) Circuit Court of 

Administrators of the Estate of ) Cook County 

Baby Lange, ) 

) 

) 

Plaintiffs-Appellants, ) 

) 

) No. 99 L 6143 

v. ) 

) 

) 

MARY FREUND, ) 

) Honorable 

) Carol Pearce McCarthy 

Defendant-Appellee. ) Judge Presiding 

JUSTICE McNULTY delivered the opinion of the court: 

Michael Lange and Lindy Lange sued Mary Freund for the 

wrongful death of their unborn child, alleging that Freund's 

negligent driving caused a collision between her car and the 

Langes' vehicle, resulting in the loss of Lindy's five-week-old 

pregnancy. Freund admitted negligence, but denied that the 

collision was the cause of the unborn child's death. A jury 

returned a general verdict in favor of Freund and, via a special 

interrogatory, confirmed its finding that the loss of the Langes' 

child was not caused by the accident. The Langes appeal, 

alleging that numerous errors require a new trial. For the 

reasons that follow, we affirm. In accordance with Supreme Court 

Rule 23, portions of this opinion are nonpublishable; the 

complete text of our disposition is provided in the nonpublished 
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order issued simultaneously with this opinion. 

BACKGROUND 

Michael and Lindy Lange were driving to visit Lindy's 

brother and sister-in-law in Davenport, Iowa on the evening of 

September 5, 1997 when the vehicle of Mary Freund, approaching 

from the opposite direction, made a left turn into their lane. 

The vehicles collided, resulting in the total loss of the Langes' 

car. While the record presented to this court reveals some 

initial dispute about whether Mary or her husband, John Freund, 

was driving their vehicle at the time of the accident, John 

passed away shortly thereafter for reasons unrelated to the 

collision and the parties have not pursued the dispute in this 

proceeding. The Langes were taken by ambulance to a local 

emergency room, where Lindy was briefly examined, but neither she 

nor Michael was admitted to the hospital, and the record does not 

suggest that either of the Freunds suffered injury. 

On the date of the accident, Lindy was five weeks into a 

pregnancy which had been achieved through in vitro fertilization. 

 The Langes returned to the Chicago area on the Sunday following 

the accident and visited the offices of Lindy's treating 

physician at the first available opportunity on the morning of 

Monday, September 8. A test of Lindy's blood revealed that human 

chorionic gonadotropin (HCG), a hormone which increases in rapid 

and predictable levels in the bloodstream of an expectant mother 

during a healthy pregnancy, was present in Lindy's system in an 
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amount which was lower than normal for a pregnancy at her stage. 

Lindy was tested every few days thereafter, and each test showed 

HCG levels that indicated her pregnancy was not proceeding 

normally. On September 29, an ultrasound showed that the Lange 

baby's heart was no longer beating. The child showed no signs of 

recovery thereafter, and on October 16, it was surgically removed 

from Lindy's uterus. 

The Langes filed an action in the circuit court of Cook 

County in which Mary Freund admitted that her negligent driving 

caused the collision. Issues regarding damages other than the 

loss of Lindy's pregnancy were resolved prior to trial, leaving 

the parties to present to the jury evidence on the presence or 

absence of a causal link between the collision and the 

miscarriage, and evidence of the damages recoverable as a result 

of the death of an unborn child. In addition to the testimony of 

Lindy and Michael, the Langes presented the expert testimony of 

three physicians, each of whom concluded that Lindy's miscarriage 

was caused by the accident. The Lange experts testified that the 

forces acting upon Lindy's body when their vehicle slammed to a 

sudden stop from a speed of more than 30 miles per hour were 

sufficient to cause her internal organs to be shaken violently, 

rupturing the blood vessels between the uterus and the placenta. 

 One of their experts also testified that the accident could have 

caused the miscarriage by producing a surge of hormones which 
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constricted Lindy's blood vessels, cutting blood flow to the 

placenta. Freund presented one medical expert, who concluded 

that the pregnancy had begun to show signs of difficulty before 

the accident. Her expert testified that in healthy pregnancies, 

HCG levels double each 48 hours, and that pregnancies which 

failed to show this steady increase were almost certain to end in 

miscarriage. He further testified that the HCG levels revealed 

by Lindy's September 8 test were abnormally low not only for that 

date but for the date of the accident, September 5. Since he had 

never known HCG levels to rise normally, fall, then rise again, 

he concluded that the postaccident HCG levels were no lower than 

those on the date of the accident, and that they were lower than 

normal before that date. Freund's expert testified that the size 

of the fetus's sac was smaller than expected at the time of 

Lindy's last preaccident examination and that she displayed none 

of the bleeding or other signs of injury which would have been 

consistent with traumatically-induced miscarriage; he concluded 

that the accident was not the cause of the miscarriage. The 

jury, in addition to returning a general verdict in favor of 

Freund, also responded "No" to a special interrogatory: "Do you 

find that the automobile accident of September 5, 1997 

proximately caused the fetal demise on September 29, 1997." The 

Langes now appeal, asserting numerous claims of trial error. 

ANALYSIS 
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I. Court Instruction On Number Of Witnesses 

Immediately after closing argument, the trial court, on its 

own motion, remarked: "I am going to interject one thing right 

now. The number of witnesses on either side of the case is not 

dispositive of the issues or the facts as you find them." The 

Langes contend that the giving of this instruction was 

sufficiently prejudicial to constitute reversible error. 

In support of their contention, the Langes note that our 

supreme court's committee on jury instructions in civil cases has 

advised against such instructions: "The committee recommends that 

no 'one witness against a number' instruction be given." 

Illinois Pattern Jury Instructions, Civil, No. 4.06 (2000) 

[(hereinafter IPI Civil (2000)]. The committee, in its notes to 

the recommendation against giving such instructions, commented, 

"The Illinois Supreme Court has held that it is for the jury to 

determine to what extent each witness is credible, and that it is 

error to give an instruction on that subject so worded that under 

the circumstances of the case the jury might readily infer the 

court believed the witnesses for one side to be more credible 

than the witnesses for the other side. Walsh v. Chicago Rys. 

Co., 294 Ill. 586, 595 (1920)." IPI Civil (2000) No. 4.06, 

Comment. Though we are mindful of the foregoing, we do not agree 

with the Langes' assertion that the committee's recommendation 

and comments establish that the trial court's admonition in the 

instant case was reversible error. 
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Pattern instructions are presumed to be accurate statements 

of Illinois law, and the jury is to be instructed using an 

approved pattern form if the trial court determines that it is 

applicable to the circumstances of the case. Luye v. Schopper, 

348 Ill. App. 3d 767, 773 (2004). But pattern instructions are 

not themselves law. Our supreme court has held that they "are 

not exempt from challenge." Powers v. Illinois Central Gulf R.R. 

Co., 91 Ill. 2d 375, 385 (1982). "There has not been any advance 

approval of the IPI by this court. An instruction is approved or 

rejected only after it has been judicially questioned and 

considered." Powers, 91 Ill. 2d at 385. We have been made aware 

of no Illinois precedent which may be construed as a blanket 

prohibition of all instructions similar to that in the instant 

case, or as a judicial analysis of the committee's recommendation 

against such instructions. It is thus apparent that the 

propriety of the trial court's instruction herein is not 

conclusively determined by the recommendation and comments of the 

supreme court's jury instruction committee. 

Instructions to the jury, taken as a whole, must fairly, 

fully, and comprehensively apprise the jury of the relevant legal 

principles; a trial court will not be reversed for giving faulty 

instructions unless they clearly misled the jury and resulted in 

prejudice to the appellant. Schultz v. Northeast Illinois 

Regional Commuter R.R. Corp., 201 Ill. 2d 260, 273-74 (2002). In 

the instant case, the trial court's instruction to the jury that 
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the number of witnesses on either side of the case is not 

dispositive was not an inaccurate or misleading statement of 

Illinois law. "Evidence, and its preponderance, is to be 

determined from its value and weight, not from the mere number of 

witnesses and exhibits on one side or the other." Thornton v. 

Rhodus Mobile Homes, Inc., 104 Ill. App. 3d 869, 872 (1982). See 

also Hardware State Bank v. Cotner, 55 Ill. 2d 240, 252 (1973). 

Indeed, the supreme court committee on jury instructions long 

approved a pattern instruction which advised that "[i]n deciding 

whether any fact has been proved, it is proper to consider the 

number of witnesses testifying on one side or the other as to 

that fact, but the number of witnesses alone is not conclusive if 

the testimony of the lesser number is more convincing." IPI 

Civil No. 2.07 (3d 1990); Johnson v. Equipment Specialists, Inc., 

58 Ill. App. 3d 133, 143 (1978). 

In changing its stance on such instructions, the supreme 

court committee, notably, characterized its amended viewpoint as 

a recommendation, and did not suggest that Illinois law had 

changed. Instead, as outlined above, it emphasized the possible 

prejudicial effect of a court's suggestion that the witnesses of 

one party were more credible than those of the opponent, citing 

Walsh v. Chicago Rys. Co., 294 Ill. 586, 595 (1920), and 

recommended against the injection of such prejudice into civil 

trials. 

Walsh, however, did not suggest that all "one witness 
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against a number" instructions were inherently prejudicial, or 

that all such instructions constituted reversible error. In 

Walsh, the jury was instructed: "'The court instructs the jury 

that the testimony of one credible witness may be entitled to 

more weight than the testimony of many others, if, as to those 

other witnesses, you have reason to believe, from the evidence 

and all the facts before you, that such other witnesses have 

knowingly testified untruthfully as to any material fact or 

circumstance and are not corroborated by other credible witnesses 

or by circumstances proved in the case.'" Walsh, 294 Ill. At 

595. The Walsh court found the instruction to be sufficiently 

prejudicial to require reversal of a jury verdict against the 

defendant, who had produced more witnesses to an accident than 

the plaintiff, but in so doing, the court focused on the 

instruction's explicit commentary on the credibility of the 

witnesses: "We find nothing in the testimony that would serve as 

a basis for an intimation to the jury that any of the witnesses 

for the [defendant] had knowingly or willfully testified 

falsely." Walsh, 294 Ill. at 596. 

At the same time, however, the Walsh court acknowledged the 

possibility that some such instructions would not be similarly 

suggestive, and would thus be permissible: "An instruction of the 

character of the one here in question can only be offered when so 

worded that it does not single out witnesses from one side or the 

other, so that it might apply to any witness in the case, without 
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reference to whether he was called by plaintiff or defendant." 

Walsh, 294 Ill. at 596. Walsh thus disfavors instructions which 

call into question the credibility of one party's witnesses, but 

does not suggest that an instruction regarding the inconclusive 

nature of the number of witnesses is in all cases sufficiently 

prejudicial to constitute reversible error. 

Accordingly, since the committee's position on "one against 

a number" instructions has not yet been adopted by courts of this 

state, since its position is a recommendation, rather than a 

purported statement of Illinois law, since the supreme court 

authority cited as the basis for the committee's recommendation 

does not prohibit all "one against a number" instructions, and 

since the court's instruction does not include the commentary on 

credibility found by the Walsh court to be objectionable, we 

conclude that the committee recommendation, in itself, is 

insufficient to establish that the trial court's statement to the 

jury was reversible error. 

We therefore analyze the instruction in accordance with 

general principles of review of nonpattern instructions in 

Illinois. The trial court's instruction in the instant case did 

not misstate Illinois law, and remained within the constraints 

established by our supreme court for non-pattern instructions: it 

was "simple, brief, impartial, and free from argument." 177 Ill. 

2d R.239(a). It made none of the credibility commentary 

addressed by the Walsh court, did not make reference to either 
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party, and did not suggest that the number of witnesses was not 

to be considered. 

We believe that the court's instruction was an appropriate 

communication to the jury in light of the arguments made by the 

Langes' counsel in closing and rebuttal. Those arguments 

repeatedly suggested that the number of expert witnesses 

presented by the parties should determine the outcome of the 

fact-finding process: 

"Getting back to the probabilities. Three people 

against one. Three experts saying it was the collision 

against Dr. Zinaman. You take three people, 75 

percent, against one expert, 25 percent, who should 

win? We should win. And that is what more probably 

true than not true means. You can consider how many 

people testified on one side as opposed to the other. 

You can consider that in determining who should win. 

* * * 

All you have to determine is more probably true 

than not true, slightly - - have we slightly proved 

it's more probably true than not true that this 

collision caused the loss of this pregnancy and what 

the damages are. And I think it should be very easy. 

And the reason I think it should be very easy is 

because now that you know the burden of proof, now that 

you know it is not a possibility, now that you know our 
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burden is not way up here and that it is just a little 

bit ahead, putting three against one in context, how do 

we lose? And that is my point. We shouldn't lose. 

* * * 

You are also going to be asked to complete what is 

known as another question in addition to the verdict 

forms. And that question is going to ask you whether 

or not you found that the collision of September 5th of 

1997 was the proximate cause of the fetus's demise. 

You need to answer that question yes. That is an 

additional question you have to answer. Why should you 

answer that question yes? Because if you apply that 

burden of proof, more probably true than not true, 

three people against one, we should win. 

* * * 

And when [defense counsel] talked about the burden 

of proof, he just totally glossed over the three people 

on one side testifying against one person on this side. 

 That is more probably true than not true. Three 

people saying it was the collision to one person saying 

it was not the collision, three against one, 75 percent 

to 25 percent. More probably true than not true. We 

just have to be a little bit ahead of them in terms of 

proof, and we should win this case. 

* * * 
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That is why the three against one becomes so 

important because in order to find in favor of the 

Defense, you would have to find that Dr. Zinaman 

standing alone, his testimony would outweigh the other 

three people. It is kind of like that basketball game 

that we were describing. The Bulls have 100 and the 

opposing team has 99, the Bulls win. We have three, the 

opposing team has one. Who should win? We should. 

* * * 

Three against one. More probably true than not 

true. We've proven it." 

In light of the repeated suggestion that the number of 

witnesses testifying in favor of the Langes should decide the 

case in their favor, we cannot find that the trial court misled 

the jury or prejudiced the Langes with its simple, accurate and 

argument-free statement that the number of witnesses was not to 

be considered conclusive. We accordingly reject the Langes claim 

that the court's statement constituted reversible error. 

II. Jury Selection - Dismissal Of Incomplete Panel 

Before jury selection began, the trial court informed the 

parties that if a panel of four jurors had not been completed and 

sworn at 4:30 p.m., all jurors on that panel would be dismissed, 

and the panel would be completely refilled at the beginning of 

the next court day. Neither party objected to this rule. 

When jury selection began, the court followed its rule as it 
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had been announced: only three jurors out of the second panel of 

four had been selected by the close of the day, and those three 

jurors were dismissed. Counsel for the Langes asked, "You're 

dismissing all these people, judge?" The trial court responded, 

"I told you at the end of the day that is what it is. If I don't 

have a panel, it is only the people who are sworn. So we start 

over and you each have one challenge." Neither party objected at 

that time, and neither party objected when jury selection resumed 

and the remainder of the jury was impaneled. 

The Langes now claim that the dismissal of three jurors from 

the incomplete second panel was reversible error. They contend 

that they were unable to select a fair and impartial jury because 

the three peremptory challenges they exercised to remove jurors 

from the second panel were not reinstated when selection of that 

panel resumed. 

Since the Langes did not object to the court's announcement 

of its rule, to its application of the rule at the time the three 

jurors from the incomplete second panel were dismissed, or to its 

assessment of the parties' remaining number of peremptory 

challenges, they have waived the issue. Branum v. Slezak 

Construction Co., Inc., 289 Ill. App. 3d 948, 959-60 (1997). 

Recognizing this fact, the Langes argue that we should consider 

the issue under the plain error doctrine, which allows us to 

review claims of error not properly preserved at trial. But this 

doctrine is applied in civil cases only where the act complained 
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of was a prejudicial error so egregious that it deprived the 

complaining party of a fair trial and substantially impaired the 

integrity of the judicial process itself. Gillespie v. Chrysler 

Motors Corp., 135 Ill. 2d 363, 377 (1990). 

In the instant case, however, the Langes have failed to make 

even the threshold-level showing that the actions they complain 

of were prejudicial. They contend that because the jurors they 

selected for the second panel were dismissed, the three 

peremptory challenges they used to select that panel were 

improperly deprived of their impact. Illinois reviewing courts 

have not shared this view. "The right of peremptory challenge is a right to 

exclude jurors, not to select them. It enables a party to say who shall not try his case, 

but it does not enable him to select the particular jurors by whom he wishes his case 

tried." Schultz v. Gilbert, 300 Ill. App. 417, 422 (1939). Prejudice in the jury 

selection process is not shown by the mere assertion that a party 

would have preferred different members of the jury; Illinois 

courts have instead required a showing that a party was forced to 

accept a juror that was objectionable and was unable to excuse 

that juror due to the lack of peremptory challenges. O'Donnell 

v. Holy Family Hospital, 289 Ill. App. 3d 634, 649 (1997); Snyder 

v. Poplett, 98 Ill. App. 3d 359, 365 (1981). The Langes ended 

jury selection in the case at bar with one unused peremptory 

challenge, have not offered any suggestion that any of the jurors 

on the second or third panels were objectionable in any way, and 
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have not demonstrated that the method of selecting their jury 

resulted in any outcome recognized by Illinois law to be 

prejudicial. We therefore conclude that even if the Langes are 

spared the impact of their failure to preserve this issue for 

review, they have presented no basis for reversal of the verdict 

in favor of Freund. 

III. Jury Selection - Striking of "Accepted" Juror 

The material in this section and sections IV through VII is 

nonpublishable pursuant to Supreme Court Rule 23. 

The Langes also argue that the trial court erroneously 

permitted Freund to cross-examine their expert witnesses with 

questions about their level of certainty about the cause of the 

miscarriage: they claim that the trial court erred in allowing 

Freund to ask their experts if circumstances other than the 

accident were possible causes of the loss of the child and in 

allowing her to ask them if they were certain that problems with 

fetal development had not started before the accident. 

"It is permissible for a medical expert to testify 

concerning his or her opinions in terms of possibilities or 

probabilities." Matuszak v. Cerniak, 346 Ill. App. 3d 766, 772 

(2004). In Wojcik v. City of Chicago, 299 Ill. App. 3d 964, 979 

(1998), we rejected the contention that a trial court errs by 

permitting cross-examination of an expert about possible 

alternative causes of injury. We find no basis for departure 

from the Wojcik court's approach, and accordingly reject the 
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Langes' identical contention in the case at bar. 

We also reject the Langes' contention that the trial court 

erred in allowing Freund to ask their experts on crossexamination whether they were "certain" that the pregnancy was 

progressing normally in the days immediately prior to the 

accident. Questioning of the certainty of the direct testimony 

of a witness is, in our view, well within the boundaries of 

potentially permissible cross-examination, subject to the trial 

court's discretion; such questioning has been routinely accepted 

by this court in the examination of expert and lay witnesses. 

See Downing v. United Auto Racing Ass'n, 211 Ill. App. 3d 877, 

888 (1991); Collum v. Fred Tuch Buick, 6 Ill. App. 3d 317, 320 

(1972). Accordingly, although a "reasonable degree of medical 

certainty" is the minimum threshold of assuredness required of a 

competent medical expert opinion (Hunter v. Chicago & North 

Western Transportation Co., 200 Ill. App. 3d 458, 473 (1990)), we 

are aware of no viable precedent which prohibits either the 

expression of a greater degree of conviction or cross-examination 

questions about whether that greater degree of conviction is 

present. 

The Langes cite Skalon v. Manning, Maxwell & Moore, Inc., 

127 Ill. App. 2d 145, 159 (1970) for the proposition that "it is 

error to allow an expert to give an opinion as an absolute 

certainty on the cause of one's injury." While that principle 

was indeed cited by the Skalon court as the holding of Turnbow v. 
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Hayes Freight Lines, Inc., 15 Ill. App. 2d 57, 61-62 (1957), we 

believe that it cannot be viewed as an accurate statement of 

current Illinois law. 

The Turnbow court relied upon a premise long prevalent in 

Illinois jurisprudence: that conclusive expert testimony on an 

ultimate issue in a contested action was prohibited because such 

testimony would invade the jury's province as the finder of fact. 

 Illinois courts expressed concern that "direct and positive 

testimony" by an expert on an ultimate issue would conclusively 

decide the question, thereby leaving the jury with "nothing left 

to do but to proceed to award large damages." Fellows-Kimbrough 

v. Chicago City Ry. Co., 272 Ill. 71, 78 (1916). Mindful of that 

premise, our courts insisted that expert testimony on a case's 

ultimate factual issue be expressed equivocally, and not with 

certainty. Santiemmo v. Days Transfer, Inc., 9 Ill. App. 2d 487, 

497 (1956). 

Our supreme court has since disavowed this principle, 

however, explaining that a jury's province as factfinder is not 

impermissibly invaded even by expert testimony expressed in 

absolute terms, since jurors remain free to disbelieve and 

disregard such testimony. Zavala v. Powermatic, Inc., 167 Ill. 

2d 542, 545 (1995). 

In Richardson v. Chapman, 175 Ill. 2d 98, 107-108 (1997), 

the court, reviewing a traditional requirement of neutral, 

inconclusive actuarial expert testimony, found that such 
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requirements, because they were mere products of the disfavored 

prohibition against ultimate issue testimony, were no longer 

viable. The Richardson court's analysis is dispositive of the 

Langes' argument in the instant case. Although medical experts 

must at least meet the "reasonable degree of medical certainty" 

threshold to provide a competent, admissible opinion, Illinois 

law no longer bars the expression of that opinion in more 

conclusive terms. The trial court was therefore vested with the 

discretion to allow cross-examination about the degree of 

certainty of the Langes' medical experts. Finding no suggestion 

of abuse of that discretion, we reject the Langes' contention 

that permission of cross-examination on the subject was 

reversible error. 

IX. Prejudicial Trial Court Actions 

The Langes allege that various trial court actions created 

sufficient prejudice against them in the minds of the jury that 

the verdict against them must be reversed. We find none of the 

cited actions, singularly or in the aggregate, to be 

justification for such relief. 

The first action raised by the Langes is the trial court's 

method of modifying one of the damages instructions they offered 

for presentation to the jury. After the instruction was read to 

the jury, the court explained that language found to be 

inapplicable to the case and redacted from one paragraph of the 

instruction had not been similarly removed from another 
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paragraph. Before giving the written instructions to the jury, 

the court blacked out the inapplicable language with a pen. The 

Langes first argue that this editing was prohibited by the Code 

of Civil Procedure (735 ILCS 5/2-1107 (West 2002)), which, 

according to their brief, states that a trial court "shall in no 

case, after instructions are given, clarify, modify or in any 

manner explain them to the jury . . . unless the parties agree 

otherwise." The Langes apparently recognize that the four words 

omitted from their brief's statutory citation are fatal to this 

argument: the statute indeed prohibits clarification, 

modification or explanation of instructions "otherwise than in 

writing" unless the parties agree. Since the modification 

complained of here is clearly in writing, the Langes' statutory 

argument on this issue merits no further discussion. 

The Langes' next objection to the court's written 

modification of the instruction is that since it was identified 

as a plaintiffs' instruction, the handwritten alteration "showed 

contempt" for them and their attorneys. In People v. Foster, 288 

Ill. 371 (1919), instructions were edited by drawing lines 

through the inapplicable language, but the edited words remained 

clearly legible. Our supreme court did not find such editing to 

be prejudicial. "[S]o far as we are advised a case has never 

been reversed solely because the instruction had been handed to 

the jury as modified by inserting or striking out and without 

being re-written." Foster, 288 Ill. at 383. "[A]ny modification 
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of this kind not necessarily misleading ought not to reverse the 

case." 288 Ill. at 383. The Langes have cited no precedent for 

departure from the Foster court's approach, and our research has 

revealed none. Furthermore, the Langes do not contend that the 

instruction, as modified, was an incorrect or misleading 

statement of Illinois law. We therefore adhere to the Foster

court's analysis and conclude that hand-editing of the 

instructions submitted to the jury was not reversible error. 

CONCLUSION 

For the foregoing reasons, the judgment of the circuit court 

of Cook County is affirmed. 

Affirmed. 

TULLY and O'MALLEY, JJ., concur.