fFourtOURTH DIVISION

								MARCH 13, 2003

1-01-3050							FOURTH DIVISION

MARTIA THORNHILL,					)	Appeal from the

							)	Circuit Court of

		Plaintiff-Appellant, 		)	Cook County.

          						)

	v.						)	

							)

MIDWEST PHYSICIAN CENTER OF ORLAND PARK 	)

and DR. MARI ANN HERBERT, Individually 	)

and as Agent or Employee of MIDWEST 	)

PHYSICIAN CENTER OF ORLAND PARK,		)	Honorable

							)	Richard B. Berland

		Defendants-Appellees. 	   	)	Judge Presiding.

	JUSTICE HARTMAN delivered the opinion of the court:

	Plaintiff, Martia Thornhill, appeals from a jury verdict in favor of

defendants, Midwest Physician Center of Orland Park and Dr. Mari Ann Herbert, in

a wrongful birth action.  Plaintiff sought recovery for the extraordinary

expenses involved with raising her Down’s Syndrome daughter, alleging that

defendants negligently failed to inform her of her unborn daughter’s genetic

defect until it was legally too late for her to obtain an abortion.  On appeal,

plaintiff contends that the circuit court erred in: (1) denying her motion for a directed verdict on liability; (2) improperly restricting voir dire; (3) making several evidentiary rulings; (4) instructing the jury on the issue of burden of

proof; (5) allowing defense counsel to argue facts not in evidence during closing

argument; and (6) denying plaintiff’s motion for a judgment notwithstanding the

verdict (judgment n.o.v.) or, in the alternative, a new trial.

	On December 21, 1996, plaintiff gave birth to a daughter, Aubria, who suffers from Down’s Syndrome.  Dr. Herbert provided plaintiff’s prenatal care. 

On July 22, 1996, per Dr. Herbert’s order, plaintiff was administered an

alphafetoprotein (AFP) test, which is a blood test that screens for genetic

defects such as Down’s Syndrome.  Dr. Herbert testified that she initially

reviewed plaintiff’s AFP test results on July 24, 1996, and told plaintiff the

results were fine.  The report of plaintiff’s AFP test stated, however, under the

heading “Down’s Syndrome interpretation,” “this risk factor indicates an increased likelihood for Down’s [S]yndrome pregnancy.”  Dr. Herbert re-checked

the test results in late October 1996 and discovered her mistake.  On October 30,

1996, Dr. Herbert notified plaintiff of the correct AFP results and set up a

consultation for plaintiff with Dr. William Donald, a perinatologist.  Dr.

Herbert admitted that she misread the report and that, when she gave plaintiff

the correct AFP test results, it was too late for plaintiff electively to

terminate the pregnancy.  Dr. Herbert further admitted that she deviated from the

standard of care by not informing plaintiff of the correct AFP test results

within the time period during which plaintiff electively could have terminated

her pregnancy.  

	During adverse examination at trial, Dr. Herbert agreed that  prior to

October 30, 1996, she never spoke with plaintiff regarding termination of the

pregnancy.  Dr. Herbert further testified regarding a conversation she had with

plaintiff after plaintiff’s consultation with Dr. Donald.1

	During her case-in-chief, Dr. Herbert testified regarding the preceding  conversation, stating that “my very last statement to [plaintiff] was it is my

understanding that you would not have altered this pregnancy regardless, and she

agreed.”  Dr. Herbert was then asked “did [plaintiff] at any time during that

office visit tell you that if she had known of an abnormal triple screen and a

higher incidence of Down’s [Syndrome] that she would have terminated the

pregnancy,” to which Dr. Herbert responded “no.”

	Dr. Robert E. Eilers, plaintiff’s damages expert, testified regarding

Aubria’s needs and the estimated costs of meeting those needs through age 18. 

Prior to trial, the circuit court, as a discovery sanction, barred Dr. Eilers

from testifying as to his most recent examination of Aubria.   

	Joseph Thornhill, plaintiff’s husband and Aubria’s father, testified that

prior to undergoing the AFP test, he and plaintiff had decided that if the test

revealed genetic abnormalities in the fetus it would be aborted.

	Plaintiff testified that if she had been informed of the correct AFP test

results in July 1996, she would have terminated the pregnancy.  She denied ever

telling Dr. Herbert that she would not have terminated the pregnancy.  Plaintiff

stated that she works full time as a registered nurse. 

	Plaintiff was recalled as a rebuttal witness and stated that Dr. Herbert

never asked her what she would have done about continuing the pregnancy if she

had known the abnormal results earlier.  She denied telling Dr. Herbert that she

would not have terminated the pregnancy even if she had known the results

earlier.  At the close of all the evidence, plaintiff moved unsuccessfully for

a directed verdict on the issue of liability.  The jury returned a verdict in

favor of defendants.  Plaintiff’s post-trial motion was denied.    

	I

	Plaintiff first contends that the circuit court erred in failing to grant

a directed verdict in her favor on the issue of liability.  

	A.  Plaintiff argues that she sustained her burden of proof on the issue

of proximate cause, as a matter of law, because she established that she had been

deprived of the opportunity to have an abortion.  It was undisputed that Dr.

Herbert deviated from the standard of care by failing to read the test report

correctly.  It was further undisputed that when plaintiff was given the correct

test results, it was too late for her legally to terminate her pregnancy in

Illinois.  Plaintiff insists she was not required to prove that she would have

terminated the pregnancy if timely informed that a genetic defect was present. 

It should be noted that despite this argument, plaintiff alleged in her complaint

that "[b]ut for the defendants' negligence the plaintiff, MARTIA THORNHILL, would

have terminated the congenitally or genetically defective fetus."  	

	In Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230, 512 N.E.2d 691 (1987) (Siemieniec), the supreme court recognized a cause of action for wrongful birth, which it defined as:

“the claim for relief of parents who allege they would

have avoided conception or terminated the pregnancy by

abortion but for the negligence of those charged with

prenatal testing, genetic prognosticating, or counseling

parents as to the likelihood of giving birth to a

physically or mentally impaired child.  The underlying

premise is that prudent medical care would have detected

the risk of a congenital or hereditary genetic disorder

either prior to conception or during pregnancy.  As a

proximate result of this negligently performed or

omitted genetic counseling or prenatal testing, the

parents were foreclosed from making an informed decision

whether to conceive a potentially handicapped child, or in the event of a pregnancy, to terminate the same.” 

Siemieniec, 117 Ill. 2d at 235.  

	The Siemieniec court was careful to emphasize the procedural posture of the case, noting that the question was not whether plaintiffs ultimately should

prevail in the litigation, but whether the complaint stated a legally cognizable

cause of action.  The court accepted as true all well-pleaded facts, including

the allegation “that if [plaintiff] had been accurately advised of the chances

that her already conceived child would be afflicted with hemophilia, then she

would have terminated the pregnancy by abortion.”  Siemieniec, 117 Ill. 2d at 234-35.  Further, in recognizing the cause of action, the court noted that

“courts which have considered wrongful birth claims have been almost unanimous

in their recognition of a cause of action against a physician or other healthcare

provider where it is alleged that but for the defendants’ negligence the parents

would have terminated the congenitally or genetically defective fetus by

abortion.”  Siemieniec, 117 Ill. 2d at 256.2

	In McDaniel v. Ong, 311 Ill. App. 3d 203, 724 N.E.2d 38 (1999) (McDaniel), the guardians of a nursing home patient, who suffered from severe developmental

disabilities and had given birth to a child after becoming pregnant while in the

nursing home, brought a medical malpractice action against the patient’s doctor

based on her failure timely to detect the pregnancy.  The plaintiffs claimed that the failure to diagnose the pregnancy sooner precluded the patient from obtaining

an abortion.  The appellate court noted that the plaintiffs were required to show

proximate cause.  The plaintiffs failed to demonstrate that if the pregnancy had

been diagnosed earlier the patient would have obtained an abortion.  After

considering the doctrine of loss of chance, the court found that “[t]he fact that

[the plaintiffs] have not asserted that different action would have been

undertaken to end the pregnancy if the pregnancy had been detected sooner [i.e.

an abortion] leaves a gap in the proof as to proximate cause.”  McDaniel, 311 Ill. App. 3d at 211.  The appellate court affirmed the grant of summary judgment

in favor of the doctor.

	Plaintiff seeks to distinguish McDaniel on its facts, pointing out that it is not a wrongful birth case.  Plaintiff stressed during oral argument, however,

that the present case was a lost chance case.  In McDaniel, the appellate court specifically considered the lost chance doctrine and proximate cause in the

context of an abortion case.  McDaniel, 311 Ill. App. 3d at 209-12.  McDaniel’s discussion of proximate cause is instructive for the present case. 

	Pursuant to Siemieniec and McDaniel, in order to establish proximate cause plaintiff was required to plead and prove that, had she known of the correct AFP

test results in a timely fashion, she would have terminated the pregnancy.

	B.  Plaintiff next argues that the circuit court erred in concluding that

a question of fact existed because the evidence supported only one conclusion -

that she would have terminated the pregnancy had she timely learned the AFP test

results.

	A directed verdict is proper only when the evidence, viewed in the light most favorable to the nonmovant, so overwhelmingly favors the movant that no

contrary verdict based on that evidence could stand.  Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 229 N.E.2d 504 (1967) (Pedrick).  The denial of a motion for directed verdict is reviewed de novo.  Schiff v. Friberg, 331 Ill. App. 3d 643, 771 N.E.2d 517 (2002) (Schiff).

	Both plaintiff and her husband testified that prior to undergoing the AFP

test they had discussed and agreed that if the test revealed a genetic

abnormality they would abort the baby.  Plaintiff denied having any conversation

with Dr. Herbert in which plaintiff said she would not have terminated the

pregnancy.  Dr. Herbert testified that during her conversation with plaintiff in

November 1996, plaintiff agreed that she would not have altered the pregnancy

regardless of when she learned the correct AFP test results.  Plaintiff argues

that the inconsistencies in Dr. Herbert's testimony regarding her conversation

with plaintiff render defendants evidence "a mere scintilla" and not sufficient

to defeat plaintiff's motion for a directed verdict.  See Williams v. Chicago Osteopathic Health Systems, 274 Ill. App. 3d 1039, 654 N.E.2d 613 (1995).

	The inconsistencies in Dr. Herbert's testimony identified by plaintiff did

not reduce her evidence to a mere "spark or trace" (Black's Law Dictionary 1347

(7th ed. 1999)), but required a credibility evaluation by the factfinder, here the jury.  The jury was presented with the conflicting testimony and made its

credibility determinations.  A directed verdict is improper where, as here,

“there is any evidence, together with reasonable inferences to be drawn

therefrom, demonstrating a substantial factual dispute, or where the assessment

of credibility of the witnesses or the determination regarding conflicting

evidence is decisive to the outcome.”  Maple v. Gustafson, 151 Ill. 2d 445, 454, 603 N.E.2d 508 (1992) (Maple).

	C.  Making arguments identical to the foregoing, plaintiff contends that the circuit court erred in denying her post-trial motion for judgment n.o.v. or,

alternatively, a new trial.

	The grant or denial of a judgment n.o.v. is reviewed de novo.  Jones v. Chicago Osteopathic Hospital, 316 Ill. App. 3d 1121, 738 N.E.2d 542 (2000) (Jones).  A judgment n.o.v. is properly entered only in those limited cases where "all of the evidence, when viewed in its aspect most favorable to the opponent,

so overwhelmingly favors movant that no contrary verdict based on the evidence

could ever stand."  Pedrick, 37 Ill. 2d at 510.  Where the assessment of credibility of witnesses may be decisive to the outcome, it is error to enter a

judgment n.o.v.  Pempek v. Silliker Laboratories, Inc., 309 Ill. App. 3d 972, 723 N.E.2d 803 (1999).

	A circuit court's decision to grant or deny a new trial will not be

disturbed on review absent an abuse of discretion.  Jones, 316 Ill. App. 3d at 1125.  A new trial should be granted only when the verdict is against the

manifest weight of the evidence, that is, the opposite conclusion is clearly evident or the jury's findings are unreasonable, arbitrary, or not based on the

evidence.  Maple, 151 Ill. 2d at 454.

	Just as plaintiff's arguments did not support her contention regarding the

propriety of a directed verdict, they do not support her contentions regarding

judgment n.o.v. or a new trial.3

	When viewed in the light most favorable to defendants, the evidence does

not so overwhelmingly favor plaintiff that no contrary verdict could ever stand. 

Moreover, the verdict was not against the manifest weight of the evidence.  The

circuit court did not err in refusing to grant plaintiff a directed verdict on

liability, a judgment n.o.v., or a new trial.

	II

	Plaintiff next contends that she is entitled to a new trial because the

circuit court’s restriction on voir dire constituted reversible error.  Specifically, plaintiff argues that the court erred when it barred her from

asking prospective jurors whether they felt it was wrong to terminate a pregnancy

because the fetus had a genetic defect.  

	The purpose of voir dire is to assure the selection of an impartial panel of jurors, persons who are free from bias or prejudice.  Kingston v. Turner, 115 Ill. 2d 445, 505 N.E.2d 320 (1987) (Kingston).  Pursuant to Supreme Court Rule 234 (177 Ill. 2d R. 234), the primary responsibility for initiating and

conducting the voir dire examination lies with the trial judge and the scope and extent of the examination rests within his or her discretion.  Kingston, 115 Ill. 2d at 464.  The standard for determining whether the circuit court has abused its

discretion is whether the voir dire allowed created a reasonable assurance that prejudice would be discovered if present.  Friedman v. Park District of Highland Park, 151 Ill. App. 3d 374, 502 N.E.2d 826 (1986) (Friedman).  When questioning of prospective jurors is turned over to counsel, it is properly within the scope

of questioning to expose any hidden bias or prejudice of a prospective juror.  Rub v. Consolidated Rail Corp., 331 Ill. App. 3d 692, 771 N.E.2d 1015 (2002).  An abuse of discretion can be established where the court refused certain

supplemental questions by counsel which directly impact on a specific bias or

prejudice.  Friedman, 151 Ill. App. 3d at 382.

	Plaintiff points to three specific instances where the circuit court

sustained defense objections during voir dire.  First, the court, prior to the start of voir dire, denied plaintiff’s request to ask prospective jurors “whether if they were in a situation where they were pregnant or their wife was pregnant

or their daughter was pregnant, and they learned that the child was likely to be

born with a genetic defect, a significant genetic defect such as Down['s] Syndrome, would they have any moral or philosophical opposition to termination

of the pregnancy.”  The court properly rejected plaintiff’s proposed question as an inappropriate attempt to put the potential jurors in plaintiff’s shoes. 

Gasiorowski v. Homer, 47 Ill. App. 3d 989, 994, 365 N.E.2d 43 (1977) (“[q]uestions which tend to put prospective jurors in the place of the parties

to the litigation open a wide range of possibilities for indoctrination or pre-

education of jurors, and lend themselves all too easily to attempts to obtain

some positive indication as to which party the jurors might favor.”)   

	Second, plaintiff attempted to ask potential juror Paul Herbert whether he

thought “that a person who terminates a pregnancy because the baby has Down’s

Syndrome has committed a sin or a wrong against God’s law?”  Prior to this

question, which was not allowed, plaintiff was permitted to ask Herbert “[d]o you

have a quarrel with a woman’s decision to terminate a pregnancy because genetic

testing shows that there is a significant congenital defect or developmental

problem?”  Plaintiff exercised a peremptory challenge to excuse Paul Herbert; no

prejudice, therefore, ensued.

	Third, the court sustained an objection to the following question, asked

of potential juror Peggy Snodgrass, on the ground that the subject had already

been covered: “Do you have any problem with a woman’s right to terminate a

pregnancy if prenatal genetic testing indicates that there is a probability or

likelihood of significant birth defect?”  Plaintiff cannot establish any

prejudice from this restriction on voir dire, since the defense later exercised a peremptory challenge against potential juror Snodgrass.         

	The record as a whole demonstrates that the circuit court questioned each

potential juror thoroughly regarding the abortion issue.  The court excused 11

potential jurors based upon their opinions regarding abortion.  On several

occasions throughout voir dire, plaintiff was allowed to ask potential jurors about their views on abortion in the specific circumstances relevant to this

case.   Plaintiff simply did not attempt to ask most of the potential jurors

about their views on abortion in the specific circumstances relevant to the case.

	The circuit court did not abuse its discretion with regard to  voir dire.

	III

	Plaintiff next contends that she was denied a fair trial due to several

erroneous evidentiary rulings by the circuit court. 

	A.  Plaintiff argues that the circuit court abused its discretion by

allowing Dr. Herbert to testify for the first time at trial, in violation of

former Supreme Court Rule 213 (177 Ill. 2d R. 213) (former Rule 213), that

plaintiff had told her that even if she had known of the correct results sooner,

she would not have terminated the pregnancy.  Defendants respond that Dr.

Herbert’s trial testimony was consistent with her deposition testimony. 

Admission of evidence pursuant to former Rule 213 is within the circuit court’s

discretion and the court’s ruling will not be reversed absent an abuse of that

discretion.  Department of Transportation v. Crull, 294 Ill. App. 3d 531, 690 N.E.2d 143 (1998) (Crull).

	At her deposition Dr. Herbert stated that at the next office visit after

plaintiff’s appointment with Dr. Donald she said to plaintiff, “Dr. Donald called

me and stated that he performed an ultrasound that said that the baby was grossly

within normal limits.  That he did not perform the amniocentesis and that your

wishes were to not alter or not alter the pregnancy” and plaintiff said “yes.” 

Dr. Herbert was also asked: “Q.  Did [plaintiff] tell you that she would not have

a termination of the pregnancy if it was available to her?  A.  She stated she

would not have altered the pregnancy.”

	According to plaintiff, the conversations which Dr. Herbert revealed during

her deposition regarding termination related to plaintiff’s intentions after October 30, 1996, when it was legally impossible to electively terminate the

pregnancy.  Defendants argue that a reasonable interpretation of the testimony

is that it addressed plaintiff’s wishes when termination was available, including

July 1996.  A circuit court’s comparison of trial testimony to pretrial

disclosures is reviewed for abuse of discretion and such abuse occurs only if no

reasonable person could agree with the position the court takes.  See Lawler v. MacDuff, 335 Ill. App. 3d 144, 779 N.E.2d 311 (2002).   No violation of former Rule 213 is apparent and the court did not abuse its discretion in allowing the

disputed testimony.4 

	Plaintiff further argues that the circuit court erred in ruling that Dr.

Herbert was not impeached.  According to plaintiff, Dr. Herbert testified

inconsistently on adverse and cross-examinations as to which time period her

conversation with plaintiff pertained and whether plaintiff made a general or

specific statement.5  The circuit court sustained defendants' objection, finding this testimony not impeaching.  No testimony was stricken, however, and the jury

was enabled to consider all of Dr. Herbert’s testimony regarding her conversation

with plaintiff.  Moreover, plaintiff's counsel thoroughly argued Dr. Herbert's

credibility and the alleged discrepancies in her testimony regarding her

conversation with plaintiff during closing argument. 

	The circuit court has discretion to allow the admission of evidence for

attempted impeachment purposes and a reviewing court will not disturb that

decision absent an abuse of discretion.  Schiff, 331 Ill. App. 3d at 656.  The court did not abuse its discretion in allowing this evidence to be decided by the

jury.

	B.  Plaintiff next contends that the circuit court erred in allowing

defendants to impeach her on collateral issues regarding her 1991-1993 tax

returns.  After plaintiff stated on cross-examination that she had never cared

for or had custody of anyone else’s children, plaintiff was confronted with her

1991-1993 tax returns on which she had claimed her two “goddaughters” as

dependents and indicated that they had lived with her during those years. 

According to plaintiff, this evidence was irrelevant to any issue in the case and

was highly prejudicial because defendants suggested that she was a tax cheater. 

	The testimony did not suggest that plaintiff was a tax cheater; rather, it

suggested that plaintiff was untruthful when she testified that she had never cared for or had custody of anyone else’s children, but in fact had claimed her

two "goddaughters" as dependents on her federal income tax returns in 1991

through 1993.  The evidence was relevant to the issue of plaintiff’s credibility,

which was a central issue in the case.  Plaintiff was given ample opportunity to

explain the apparent inconsistencies and rehabilitate herself.

	The circuit court did not abuse its discretion in admitting this evidence.6 

	C.  Plaintiff next argues that the circuit court erred in allowing 

impeachment of plaintiff concerning her views on having a second child.7  On cross-examination, plaintiff responded “no” when  asked “and it is true, is it

not ma’am, that after you had Aubria you arrived at the decision that you were

not going to have any more children; isn’t that correct?”  Plaintiff was then

confronted with her deposition testimony that she was not going to have any more

children.  Specifically, plaintiff argues that this testimony was not impeaching

because it did not discredit her testimony on a material matter.

	The evidence was relevant as it demonstrated that Aubria was not the burden

that plaintiff claimed her to be.  One of plaintiff's stated reasons for planning

not to have more children was that Aubria required so much time and effort that

there would be no time left to raise another child.  The circuit court did not abuse its discretion in admitting this evidence.8

	D.  Plaintiff argues that the circuit court abused its discretion when it

(1) improperly restricted the testimony of Dr. Eilers and (2) barred Aubria from

appearing in the courtroom.

	1.  Dr. Eilers initially saw Aubria in March of 2000 and prepared a

detailed report regarding his findings.  Dr. Eilers was deposed in September

2000.  After trial started, plaintiff’s counsel faxed defense counsel a letter

from Dr. Eilers memorializing his findings after a second evaluation of Aubria,

which was conducted in November 2000.  This was the first notice defense counsel

received regarding the second evaluation.  The circuit court found this to be a

“clear violation of Supreme Court Rule 213" and barred Dr. Eilers from testifying

regarding the November 2000 evaluation of Aubria.  

	Plaintiff argues that this restriction on Dr. Eilers’ testimony was

improper, citing Conners v. Poticha, 293 Ill. App. 3d 944, 689 N.E.2d 313 (1997) (Conners).  In Conners, an expert offered previously undisclosed additional reasons and examples to explain his causation theory.  The court, applying former

Supreme Court Rule 220, found that the expert's trial testimony represented an

elaboration or refinement of his well-established theory on causation and that

the previously undisclosed reasons and examples were fairly within the scope of

facts known and opinions disclosed before trial.  

	Plaintiff argues that Dr. Eilers' testimony regarding his most recent evaluation of Aubria was within the scope of the facts and opinions disclosed

before trial.  Dr. Eilers was not going to testify as to any new disabilities

revealed by the November 2000 evaluation, nor had that evaluation caused him to

change his previous opinions.  The November 2000 evaluation merely confirmed for

Dr. Eilers that there were no changes and no new needs for Aubria. 

	The Connors decision is distinguishable.  First, and significantly, it involved former Supreme Court Rule 220, not former Rule 213.  As stated in Crull, "Rule 213 establishes more exacting standards regarding disclosure than did

Supreme Court Rule 220 ***, which formerly governed expert witnesses.  Trial

courts should be more reluctant under Rule 213 than they were under former Rule

220 (1) to permit the parties to deviate from the strict disclosure requirements,

or (2) not to impose severe sanctions when such deviations occur.  Indeed, we

believe one of the reasons for new Rule 213 was the need to require stricter

adherence to disclosure requirements."  294 Ill. App. 3d at 535-539.  Second,

Conners did not involve a subsequent physical examination that confirmed the expert's opinions.

	Defendant cites Copeland v. Stebco Products Corp., 316 Ill. App. 3d 932, 738 N.E.2d 199 (2000) (Copeland), where the appellate court found that the plaintiff violated former Rule 213 by failing to disclose a test performed by her

expert witness after his deposition in the case was taken.  The court rejected

the plaintiff's argument that there was no violation of former Rule 213 because

the expert's opinions did not change after the undisclosed tests.  According to

the court, that argument misinterpreted the strict disclosure requirements of

former Rule 213.  

	Former Rule 213 required that, upon written interrogatory, a party must

disclose the subject matter, conclusions, opinions, bases for the opinions,

qualifications, and all reports of a witness who will offer any opinion testimony and seasonably supplement any previous answers when additional information

becomes known.  177 Ill. 2d R. 213.  Former Rule 213 is mandatory and strict

compliance is required.  Crull, 294 Ill. App. 3d at 537.   

	Admission of evidence pursuant to former Rule 213 is within the circuit

court’s discretion and the court’s ruling will not be reversed absent an abuse

of discretion.  Crull, 294 Ill. App. 3d at 537.  The circuit court did not abuse its discretion in barring Dr. Eilers' testimony regarding his most recent

evaluation of Aubria.   

	2.  Citing no authority, plaintiff next argues that the circuit court erred

in barring Aubria from appearing in the courtroom during the trial where

plaintiff sought to use Aubria as a demonstrative exhibit.  Plaintiff admits that

she never disclosed this intent to defendants prior to trial, but  argues that,

because Aubria was not a witness, she did not have to be disclosed under former

Rule 213.  Plaintiff contends that her ability to present her claim for damages

was prejudiced because she was unable to show the jury the handicaps associated

with a Down's Syndrome child.

	Admissibility of evidence is within the broad discretion of the circuit court and its determination will not be reversed absent an abuse of that

discretion.  Schuler v. Mid-Central Cardiology, 313 Ill. App. 3d 326, 729 N.E.2d 536 (2000).  The court did not abuse its discretion in barring the use of Aubria

as a demonstrative exhibit where plaintiff never disclosed her intention to do

so prior to trial and, in any event, plaintiff was able to present substantial

testimony regarding Aubria's disabilities.  See Seward v. Griffin, 116 Ill. App. 3d 749, 452 N.E.2d 558 (1983).

	E.  Plaintiff argues that the circuit court abused its discretion in

refusing to allow her to present testimony to the jury regarding (1) plaintiff's future lost wages, (2) Aubria's future lost wages,9 and (3) extraordinary expenses associated with rearing Aubria  until the age of 21.

	With regard to plaintiff’s future lost wages, plaintiff sought to introduce

evidence of her desire to stop working so that she could stay home and care for

Aubria full time.  She claimed that the salary she would lose if she were to do

so would be recoverable as lost wages.  Plaintiff cites no authority to support

this claim.  The circuit court excluded the evidence, finding there were no lost

wages.  Plaintiff admitted on direct examination that she has not quit her job

and still works full time.  Moreover, she presented no evidence that she now had

to quit her job in order to care for Aubria.  There can be no recovery of

speculative or unproved damages.  Damages are speculative when uncertainty exists

as to the fact of their existence.  Goran v. Glieberman, 276 Ill. App. 3d 590, 659 N.E.2d 56 (1995).    	

	The circuit court did not err in  excluding evidence of plaintiff's speculative future lost wages.

	Plaintiff further argues that the circuit court erred in refusing to allow

her to present evidence of the extraordinary expenses associated with rearing

Aubria until the age of 21.  The record is devoid of any attempt by plaintiff to

introduce such evidence.10

	In Siemieniec, the supreme court found that in a wrongful birth action the parents’ damages are limited to “the extraordinary expenses - medical, hospital,

institutional, educational and otherwise - which are necessary to properly manage

and treat the congenital or genetic disorder.”  Siemieniec, 117 Ill. 2d at 260.  The court recognized that some courts also have permitted recovery of the

extraordinary costs incurred after the child has reached the age of majority. 

The court then noted that “the plaintiffs here seek to recover only those

extraordinary expenses that will be incurred prior to the child’s reaching his

majority.”  Siemieniec, 117 Ill. 2d at 260.  In Illinois the age of majority is 18 years old.  In re Marriage of Ferraro, 211 Ill. App. 3d 797, 570 N.E.2d 636 (1991).    

	There was no error with regard to evidence of extraordinary expenses of

raising Aubria until the age of 21 where the record reveals that plaintiff never

attempted to present such evidence.

	IV

	Plaintiff next contends that the circuit court erred in instructing the

jury.  The circuit court’s determination as to the instructions to be given to

the jury will not be disturbed absent an abuse of discretion.  Dabros v. Wang, 243 Ill. App. 3d 259, 611 N.E.2d 1113 (1993) (Dabros).  The test for determining whether the  court abused its discretion in instructing the jury is whether,

considered as a whole, the instructions are sufficiently clear and fairly and

accurately state the applicable law.  Dabros, 243 Ill. App. 3d at 267.

	Specifically, plaintiff argues that the circuit court erred in giving

defendants’ modified burden of proof instruction which states, in pertinent

part: “the plaintiff has the burden of proving each of the following

propositions: First, that the plaintiff sustained damages; Second, that the

plaintiff would have terminated her pregnancy had the defendants advised her of the abnormal genetic test results in a timely fashion."11  According to plaintiff, this instruction was confusing to the jury because it failed to

delineate the relevant time period.  Plaintiff further claims that the

instruction misstates the law because plaintiff does not have the burden of

proving that she would have terminated her pregnancy had she been advised of the

abnormal test results in a timely fashion.  As discussed at length in Point I, Siemieniec and McDaniel make clear that the plaintiff in a wrongful birth case does have the burden of proving that she would have terminated the pregnancy had

she been advised of the abnormal test results in a timely fashion.

	The circuit court did not abuse its discretion in instructing the jury on

the burden of proof.  

	V

	Lastly, plaintiff urges error in that the circuit court allowed defense

counsel to argue facts not in evidence during closing argument.

	Counsel is afforded wide latitude in closing argument.  Ellington v. Bilsel, 255 Ill. App. 3d 233, 626 N.E.2d 386 (1993).  Counsel may comment on the evidence, as well as any reasonable inference that can be drawn from the

evidence.  Copeland, 316 Ill. App. 3d at 947.  Absent an abuse of discretion, the circuit court's determination as to the propriety of closing argument will

not be disturbed on review.  Becht v. Palac, 317 Ill. App. 3d 1026, 740 N.E.2d 1131 (2000).   

	Plaintiff complains that defense counsel’s closing statement that, “Dr. Lazar got up and told you how many times he’s testified, where he’s testified

and how much he’s been compensated for testifying,” was not supported by the

evidence.  There is no record support for plaintiff's conclusion.  Indeed, Dr.

Richard Lazar stated that he had testified in court generally two to four times 

per year and he has been called to testify for both plaintiffs and defendants

“in this building.”  Dr. Lazar estimated that in the past year he earned between

$90,000 and $120,000 for time spent either testifying at depositions, reviewing

records, or testifying at trials.  Dr. Lazar further noted that he was

compensated for his time in this case at a rate of $450 per hour for reviewing

records, court documents, and depositions; $550 per hour for testifying at a

deposition; and $650 per hour for trial testimony.

	Defense counsel’s statements during closing argument were supported by the

evidence.   

	Accordingly, for the reasons set forth above, no bases appear in this

record for disturbing the jury verdict in this case and, accordingly, the

judgment of the circuit court of Cook County must be affirmed.

	Affirmed.

	THEIS, P.J. and KARNEZIS, J., concur.