NO. 4-01-0101

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

HARRY A. KINZINGER, JR.,

		Plaintiff-Appellee,

		v.

ROBERT A. TULL,

		Defendant-Appellant.	)

)

)

)

)

)

)

)	Appeal from

Circuit Court of

Champaign County

No. 98L293

Honorable

John G. Townsend,

Judge Presiding.

_________________________________________________________________

		JUSTICE TURNER delivered the opinion of the court:

		In September 1998, plaintiff, Harry A. Kinzinger, Jr.,

filed suit against defendant, Robert A. Tull, alleging defendant negligently operated his vehicle causing an automobile accident

that resulted in injuries to plaintiff.  After defendant con

fessed liability, the trial court held a September 2000 jury

trial on the sole issue of damages, and the jury awarded plain

tiff $900,000. 

		Defendant appeals, asserting (1) plaintiff's counsel made improper comments during voir dire and opening statements implying defendant's admission of liability restricted plaintiff

from presenting certain evidence to the jury, (2) plaintiff's

counsel in his closing argument improperly commented on defen

dant's failure to call opinion witnesses, (3) the trial court

erred by allowing plaintiff to testify regarding an injury that

was not causally connected to the accident, and (4) the damages

award was excessive and unsupported by the evidence.  We affirm as modified.

	I. BACKGROUND

		On November 2, 1996, plaintiff was driving his pickup

with his wife, Susie Kinzinger, when defendant in his pickup

struck the back of plaintiff's pickup.  At the time of the

accident, defendant was going about 70 miles per hour and still

accelerating, while plaintiff's speed was between 30 and 35 miles

per hour. 

		In September 1998, plaintiff filed a complaint against

defendant, and in September 2000, defendant admitted liability.

		At the September 2000 trial on the issue of damages,

plaintiff and his wife testified, and the evidence depositions of

four witnesses who provided health-care treatment to plaintiff

were read to the jury.  Plaintiff also read portions of defen

dant's evidence deposition to the jury because defendant was not

present at the trial.

		Dr. Richard Foellner, an osteopathic physician and one

of plaintiff's primary physicians, testified he examined plain

tiff on November 19, 1996.  During that examination, plaintiff,

who was 47 years old at the time of the accident, told Foellner

that following the November 2, 1996, accident he was taken to

Carle Foundation Hospital (Carle).  He was released that same day

but returned the next day.  Neck X rays performed at Carle were

normal.  Plaintiff reported immediately after the accident, he

experienced pain in his head, neck, left knee, and left eye, and

had difficulty focusing his vision.  The day after the accident,

plaintiff experienced some memory loss and was unable to walk in a straight line.  Foellner completed a neurological examination

and found plaintiff was "unsteady" on his feet.  Because he was

concerned about possible internal bleeding, he ordered a comput

erized axial tomography (CAT) scan.  The CAT scan was normal.    

		During a November 21, 1996, follow-up appointment,

plaintiff told Foellner he was still experiencing some dizziness. 

Foellner diagnosed plaintiff as having a concussion and a cervi

cal spine strain, with some underlying age-related arthritis. 

Foellner explained cervical strain results from a sudden force

being exerted upon inelastic tissue.  To treat that condition, he

performed osteopathic manipulative therapy on plaintiff's neck

and shoulders.  Foellner also opined plaintiff's concussion and

cervical strain were causally connected to the November 2, 1996,

accident.  

		Foellner next saw plaintiff on November 26, 1996, at

which time plaintiff was still experiencing some head pain but

felt better overall.  When Foellner saw plaintiff again on

February 5, 1997, plaintiff reported he had been experiencing

daily headaches over the past four or five days.  Foellner

referred plaintiff to another osteopathic physician, Dr. Kappler,

who examined plaintiff on March 11, 1997, and noted significant

restriction in plaintiff's skull, neck, upper back, and rib

areas.  

		On May 21, 1997, plaintiff reported to Foellner he was

still having some mid-back pain, which Foellner opined could have

been related to the automobile accident.  At that time, Foellner referred plaintiff to Dr. Youngerman, an ear, nose, and throat

specialist, because plaintiff had numbness around his left ear. 

The last time Foellner saw plaintiff for injuries related to the

accident was in September 1997.  Foellner stated plaintiff's

disability from the accident appeared to last through March 1997. 

From the date of the accident through September 1997, Foellner

billed plaintiff a total of $727.  At the end of 1997, Foellner

referred plaintiff to Dr. Eric Kivisto, an osteopathic general

surgeon, because plaintiff had a breast mass.  

		Kivisto testified he first examined plaintiff in

September 1998.  During that examination, plaintiff reported that

about two months after the accident, he developed a painful

swelling in his right breast.  Kivisto removed the mass and

performed a biopsy, which revealed the lump was a benign, fatty

growth.  The surgery resulted in a two-centimeter-long permanent

scar.  Kivisto opined that striking a seat belt or a steering

wheel during a car accident could cause such a growth.  However,

he noted other possible causes for the mass existed as well.  He

also stated no permanent disability was associated with the

growth or its removal and no follow-up treatment was expected. 

		Dr. Joseph Alper, a neuropsychologist, testified he

evaluated plaintiff on two occasions during November and December

1999, following a referral from plaintiff's counsel.  According

to Alper, neuropsychology is a board-certified speciality within

the field of psychology that "deals with the treatment and

assessment of the cognitive, emotional, [and] social influences of central nervous system dysfunction."  During the evaluation,

plaintiff reported that in the November 2, 1996, accident, he hit

the back and top of his head and suffered a cut on the corner of

his eye.  He did not lose consciousness but became dizzy and fell

over.  He also did not suffer any memory loss regarding the

events surrounding the accident.  Plaintiff also told Alper that

following the accident, he had problems with (1) his memory (in

particular, difficulty remembering tasks), (2) memory attention

(losing his train of thought), (3) communicating his thoughts and

ideas, including "word[-]finding difficulties," (4) writing with

his dominant right hand, and (5) balance.  He also described

subtle difficulties with his speech, and his wife described some

subtle personality changes in plaintiff.  At the time of the

November 1999 evaluation, plaintiff and his wife felt all of

plaintiff's difficulties had been "subjectively resolved."

		Alper later administered several neuropsychological

tests to assess plaintiff's sensory, perceptual, motor, visual,

and spatial skills, his intellectual, memory, and language

abilities, and his executive functions.  ("Executive functions"

refers to a cognitive system within the brain that regulates and

utilizes one's intellectual resources.)  Alper testified plain

tiff had some very mild relative impairments with the upper-right

extremity and "slightly lower performances on some sensory,

motor[,] and cognitive functions that are associated with the

left hemisphere" of the brain.  Alper stated the results were

consistent with the symptoms plaintiff experienced following the accident.  Plaintiff's cognitive abilities were within the broad

range of average, and the only testing that fell in the border

line range was a portion of the test relating to "executive

functions," specifically dysfunction in cognitive and motor

functioning associated with the left hemisphere and language

processing.  Those dysfunctions might affect plaintiff's ability

to plan, persevere, and accomplish goals in his farming occupa

tion.  Alper opined plaintiff would permanently remain in the

same condition he was in at the time of the 1999 evaluation.  He

also opined plaintiff's problems could be related to the November

2, 1996, accident. 

		Dr. Jack Walz, a dentist who specializes in treating

oral facial pain and both temporomandibular (jaw) joint and sleep

disorders, testified that on April 27, 2000, he examined plain

tiff.  During that examination, plaintiff complained of jaw

shifting when he was chewing, jaw fatigue after chewing, and jaw

joint noises.  Plaintiff reported he did not know how long his

jaw had been shifting, but he had noticed it over the past three

to five months.  Plaintiff also reported a "plugging" sensation

in his left ear, which he had been experiencing since shortly

after the accident.  Walz's examination revealed a grinding noise

in plaintiff's left jaw joint, tenderness of his left jaw joint,

unusual wear patterns on his teeth indicating grinding of his

teeth, and a nodule on his lip (caused by biting his lip during

uncoordinated jaw movements).  Walz diagnosed plaintiff as

suffering from degenerative jaw joint disease.  Walz prescribed an oral appliance to reduce pressures applied to the jaw joint. 

He suggested plaintiff wear the appliance at night for the rest

of his life.  The appliance, which costs approximately $1,000,

generally lasts between four and six years; however, they some

times last as long as eight years or as short as two years.  Walz

also stated he will need to follow up with plaintiff once a year,

at a cost of about $50 per annual visit.      		

		Walz opined the most likely cause of plaintiff's jaw

problems was the November 2, 1996, accident.  Walz stated that

although it was unusual for problems to manifest several years

after an occurrence, it was possible that plaintiff had been

experiencing some, if not all, of his symptoms for quite a while

before he noticed them.  Walz also stated plaintiff's jaw joint

disease may cause him pain in the future and render him more

susceptible to arthritis and injury.  Walz acknowledged that a

1998 incident, in which plaintiff was hit in the face with a

piece of wood, was a possible cause of his degenerative jaw joint

disease. 

		Plaintiff testified he had been a farmer since 1975. 

Before that time, he obtained a Bbachelor of Aarts degree in

economics and attended three semesters of law school.  Plaintiff

stated the impact of the automobile accident caused his head to

break the back window and dent the back window frame.  His left

elbow, left knee, left eye, and chest hit other parts of his

truck during the crash.  After the accident, he experienced

difficulty with his vision, difficulty writing with his dominant right hand, difficulty walking in a straight line, and a plugging

sensation in his left ear.  

		Plaintiff also testified Foellner referred him to Dr.

Kenneth Renner, who examined a painful knot on his left elbow. 

Prior to the accident, he had no problems with his jaw or growths

on his body.  Plaintiff stated he did not recall telling Alper

his problems had been resolved at the time of his November 1999

evaluation.  He acknowledged he no longer had any vision prob

lems, but he has to "hyperfocus" to retain information.  Plain

tiff also acknowledged he was able to conduct his day-to-day

business and personal affairs and, other than Alper, he had not

seen a specialist for his head injury.      

		Plaintiff's wife testified she was in the truck with

plaintiff at the time of the accident in question.  Although

plaintiff did not lose consciousness, he fell over onto her lap. 

After the accident, plaintiff had a lot of difficulty remembering

things he had known his entire life.  He had a hard time express

ing himself and making decisions.  He still had difficulty

processing information quickly and remembering directions.  She

also noticed plaintiff's personality had changed since the

accident in that he was more quiet.  She recalled telling Alper

plaintiff's more serious problems had been resolved at the time

of the November 1999 evaluation. 

		Plaintiff's exhibit No. 1 showed past medical expenses

totaling $15,347.83.             

		Based on this evidence, the jury awarded plaintiff $900,000, as follows:  $100,000 for past and future medical

expenses, $500,000 for pain and suffering, and $300,000 for

disability.

		Defendant filed a motion for a new trial or a

remittitur, which the trial court denied following a January 2001

hearing.  This appeal followed.

	II. ANALYSIS

	A. Plaintiff's Counsel's Comments During Voir Dire 

	and Opening Statements

		Defendant first argues plaintiff's counsel made im proper comments during voir dire and opening statements implying that defendant's admission of liability restricted plaintiff from

presenting evidence to the jury. 

		During voir dire, the following colloquy took place:

			"[PLAINTIFF'S COUNSEL]:  [Prospective

juror], because the [d]efendant has admitted

liability in this case, the--there are re

strictions on what evidence can be offered

about the occurrence.  As the [p]laintiff

with the burden of proof[,] we are limited in

that respect.  One of the things I'm con

cerned about is since we are limited as a

matter of law and cannot present certain

evidence, would that leave questions in your

mind that might leave us at a disadvantage?

			[DEFENDANT'S COUNSEL]:  Judge, I'm going

to object to the form of the question.  There is an inference [sic] that there is something this jury is not going to hear.  They're

going to hear all the evidence in this case.

			THE COURT:  I'll permit you to rephrase,

[plaintiff's counsel].

			[PLAINTIFF'S COUNSEL]:  Because the

[d]efendant has admitted liability in this

case[,] the plaintiff is restricted in the

evidence that he can offer as to the circum

stances, all the background and circum

stances.  And one of the things I'm concerned

about is from, you know, what you mentioned

earlier is that since we cannot offer that

evidence would we be at a disadvantage?

			[DEFENDANT'S COUNSEL]:  Same objection,

Judge.  The suggestion that somehow--

			THE COURT:  May I see counsel here,

please.  (Whereupon a [side bar] conference

was held.)

			[PLAINTIFF'S COUNSEL]:  [Prospective

juror], relative to this case[,] since the

[d]efendant has admitted liability[,] we

won't be able to present any evidence on the

issue of liability.  We can only present

evidence on the issue of damages and inju

ries.  And in that posture[,] would that leave unanswered questions in your mind that

you might hold against us relative to the

liability issue?" 

		Plaintiff's counsel then made the following comment

during opening statements:

			"As you know, and [h]is Honor has told

you, the attorneys have told you, the defen

dant has admitted liability.  Now what that

does as far as evidence that you will hear,

that restricts the plaintiff--both parties in

what evidence they can show and they can

present.  So, unfortunately, there may be

some evidence that you might want--wish to

have heard, but because the admission of

liability would prevent us from doing so--

			[DEFENDANT'S COUNSEL]:  Judge, I am

going to object to the inference [sic] that this jury is not going to hear all of the

evidence in this case.

			THE COURT:  Well, not necessarily adopt

ing the rationale articulated, but I sustain

the objection."

		While we agree with defendant that plaintiff's coun

sel's statements were improper, we, however, find nothing in

those statements constitute reversible error.   

		Defendant cites Crutchfield v. Meyer, 414 Ill. 210, 214, 111 N.E.2d 142, 144 (1953), Skelton v. Chicago Transit Authority, 214 Ill. App. 3d 554, 582, 573 N.E.2d 1315, 1334 (1991), and L.D. Brinkman & Co. Midwest v. National Sponge Cushion Co., 76 Ill. App. 3d 683, 695, 394 N.E.2d 1221, 1229 (1979), for the proposition that reversible error exists when

counsel suggests he wished to present some information but could

not because his opponent somehow prevented him from doing so.

		However, in Skelton, 214 Ill. App. 3d at 582, 573 N.E.2d at 1334, after the court noted the above proposition, it

found counsel's comments were not sufficiently improper as to

require a new trial.  There, the defense counsel in his closing

argument referred to the fact that the plaintiff had never

offered certain evidence, and the jury had never been told

precisely what happened and why it happened.  Skelton, 214 Ill. App. 3d at 582, 573 N.E.2d at 1334.   

		In Crutchfield, 414 Ill. at 213-15, 111 N.E.2d at 143- 44, the court found the plaintiff was denied a fair trial because

of statements the defense counsel made in his closing argument.  While the court noted both counsel acted improperly, the defen

dant's counsel called the jury's attention to the fact the trial

court did not permit defendant to testify to an issue because of

the plaintiff's objection.  Crutchfield, 414 Ill. at 213-14, 111 N.E.2d at 143-44.  Such conduct suggested the counsel was at

tempting to convey to the jury the defendant had material and

valuable evidence to give but was denied the opportunity by the

plaintiff's technical objection.  Crutchfield, 414 Ill. at 214, 111 N.E.2d at 144.

		In L.D. Brinkman, 76 Ill. App. 3d at 694, 394 N.E.2d at 1229, the defense counsel in his opening statement stated he

could not talk about certain conversations, and in closing

argument, he commented on certain tests that were not in evi

dence.  The court noted such statements were improper.  L.D. Brinkman, 76 Ill. App. 3d at 695, 394 N.E.2d at 1229.  The court then found based on the closeness of the evidence and the combi nation of several errors, including the improper statement by defense counsel, the plaintiff was denied a fair trial.  L.D. Brinkman, 76 Ill. App. 3d at 695, 394 N.E.2d at 1229-30.

		Here, plaintiff's counsel was conveying to the jury

that because no issue of liability existed, no evidence to prove

defendant's liability would be presented.  Further, the improper

statements were made in voir dire and near the very beginning of plaintiff's opening statement.  As pointed out by plaintiff, the objections made to counsel's voir dire questions were as to form and the questioned individual was not selected to hear the case.  Moreover, when plaintiff's counsel posed the question for a third

time in a different form, defendant did not object.  As to the

remark in plaintiff's opening statement, defendant objected, and

the trial court sustained the objection.  Thereafter, direct and

cross-examination of all the witnesses in the case took place,

followed by closing arguments by both attorneys and full Illinois

pattern jury instructions from the trial court.  The record does

not reflect any disagreement on or objection to the instructions submitted to the jury.     

		Accordingly, we find plaintiff's counsel's remarks

during voir dire and in his opening statement do not constitute reversible error.

	B. Plaintiff's Counsel's Comments During Closing Argument

		Defendant next argues plaintiff's counsel made improper

comments during his closing argument that constituted reversible

error.

		In his initial statement, plaintiff's counsel commented

as follows:

			"[Defendant's counsel's] medical opin

ion, he is a lawyer like me.  That's not an

opinion.  It is not evidence.  It may be

something that is generated to try to confuse

you or to try to say, oh, you should substi

tute your opinion for the doctors'.  Believe me, if there were doctors available to con tradict the opinions that you heard, they-- would have--he would have presented them."  (Emphasis added.)

Later, during rebuttal, plaintiff's counsel argued "[i]f there

would have been an orthodontist, another dentist, someone who

could come in and say Walz is full of it, [defendant's counsel]

would have had them here."  Defendant's attorney objected to both

comments.  The trial court overruled his first objection.  As to

the second objection, the trial court stated the following: "Folks, consider only the evidence.  The arguments are to assist

you."

		Generally, a party may not comment upon his opponent's

failure to call a witness who is not under the opponent's control

or who is equally available to both parties.  The danger from such comments is the jury will presume the testimony would have

been unfavorable to the noncalling party.  Nevertheless, counsel

may argue the evidence and all reasonable inferences from it. 

Lebrecht v. Tuli, 130 Ill. App. 3d 457, 484, 473 N.E.2d 1322, 1341 (1985).   

		As in Lebrecht, 130 Ill. App. 3d at 484, 473 N.E.2d at 1341, plaintiff's counsel's statements were made in the context

of comparing and contrasting testimony presented on the cause of

plaintiff's ailments.  Here, plaintiff's counsel pointed out that

plaintiff presented the only testimony as to the cause of plain

tiff's claimed injuries.  Such comment was proper.  See Lebrecht, 130 Ill. App. 3d at 484, 473 N.E.2d at 1341.   	

	C. Plaintiff's Testimony Regarding the Knot on His Elbow

		Defendant next argues the trial court erred in allowing

the jury to consider plaintiff's testimony about a knot on his

left elbow because plaintiff did not present any medical testi

mony establishing a causal connection between the November 2,

1996, accident and the knot. 

		Plaintiff testified he saw Renner because he had "some

kind of a knot on [his left elbow,] and it was painful."  Defen

dant objected when plaintiff's counsel asked when plaintiff first noticed the knot.  Defendant argued plaintiff had not presented

an expert opinion establishing a causal connection between the

collision and the knot.  The trial court overruled the objection,

and plaintiff testified the knot had not been present before the

November 2, 1996, accident.  Plaintiff did not state the knot

resulted from the accident.         

		In support of his argument, defendant cites Stevenson v. Nauton, 71 Ill. App. 3d 831, 390 N.E.2d 53 (1979), a medical malpractice case.  In professional malpractice cases, expert

testimony is generally necessary to establish both (1) the

standard of care expected of the professional and (2) the profes

sional's deviation from the standard caused the plaintiff's

injury.  Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 295, 730 N.E.2d 1119, 1130 (2000).  In ordinary negligence cases,

no general rule requiring expert testimony exists.  See Jones, 191 Ill. 2d at 295, 730 N.E.2d at 1130.  The alleged damages in

this case arose out of ordinary negligence.  Moreover, we find

the facts of this case pertaining to plaintiff's elbow did not

require expert testimony.

		Accordingly, we find the trial court did not err in

allowing the plaintiff to testify about the knot on his elbow.

	D. Damage Award

	1. Pain and Suffering and Disability

		Defendant contends the jury’s verdict of $500,000 for

pain and suffering and $300,000 for disability was excessive and

against the manifest weight of the evidence.  We disagree.

		In considering whether a verdict is excessive, a court

must look at such factors as "(1) the permanency and extent of

the injuries suffered, (2) the plaintiff's age, (3) the possibil

ity of deterioration in the future, (4) the medical expenses

incurred, (5) past and future lost wages, and (6) any restric

tions that the injury may have placed on the plaintiff’s daily

activities."  Snelson v. Kamm, 319 Ill. App. 3d 116, 131, 745 N.E.2d 128, 142 (2001), appeal pending, Nos. 91232, 91239 cons.

		Plaintiff testified to a number of physical ailments

that occurred after the accident.  He stated he had problems with

his jaw, he was grinding his teeth while sleeping, and now wears

an appliance on his teeth at night.  Plaintiff also testified to

a lump on his chest that was removed and a knot on his elbow both

of which were not present before the accident.  Plaintiff indi

cated he had vision problems and a plugged sensation in his ear. 

He also stated he has had difficulty communicating, has to

"hyperfocus" to retain information from conversations, and

planning crops and making crop sales are stressful and requires

decisions to be broken up.  Additionally, his life expectancy was

established at 26 years.

		Plaintiff's wife testified that since the accident,

plaintiff has had difficulty remembering, trouble expressing

himself, and has a hard time making decisions.  She also stated

plaintiff never had any growths or lumps on his body or any

trouble with his elbow prior to the accident.

		Alper testified plaintiff's cognitive and motor func tion impairments could have been related to the injuries sus

tained in the accident.  Further, plaintiff's condition would

remain the same as his 1999 evaluation.  Alper also testified

that plaintiff's executive function difficulties could affect his

ability to plan and meet the demands of farming.

		Walz, a dentist specializing in treating jaw joint

problems, testified the most likely cause of plaintiff's ailments

was the auto accident.  Walz stated plaintiff will have some

long-term impairment with the possibility of developing arthritis

in the jaw joint area and being more susceptible to future

injury.

		A jury's award of damages is entitled to substantial

deference on review.  Snover v. McGraw, 172 Ill. 2d 438, 447, 667 N.E.2d 1310, 1315 (1996).  A personal injury award for damages

"'must be examined in the light of the particular injury in

volved, with humble deference to the discretion of the jury and

the judgment of the trial court.'"  Epping v. Commonwealth Edison Co., 315 Ill. App. 3d 1069, 1073, 734 N.E.2d 916, 919 (2000), quoting Kopczick v. Hobart Corp., 308 Ill. App. 3d 967, 979, 721 N.E.2d 769, 779 (1999).  Based on the evidence, we find the

jury's $500,000 award for pain and suffering and $300,000 award

for disability was not excessive.

	2. Past and Future Medical Expenses

		Defendant also argues the jury's $100,000 award for

plaintiff’s past and future medical expenses was excessive and

unsupported by the evidence.  On review, courts will not inter fere with the jury's damage assessment unless the “award bears no

reasonable relationship to the loss suffered.”  Gill v. Foster, 157 Ill. 2d 304, 315, 626 N.E.2d 190, 195 (1993).  However, the

jury enjoys a certain degree of latitude in awarding compensation

for medical costs that, as shown by the evidence, are likely to

arise in the future but are not specifically itemized in the

evidence.  Richardson v. Chapman, 175 Ill. 2d 98, 112, 676 N.E.2d 621, 628 (1997).   

		Plaintiff claimed his past medical expenses totaled

$15,347.83.  As to future medical expenses, Walz testified

plaintiff's oral device would require replacement every four to

six years (although it could require replacement from as little

as two years to as many as eight years).  Based on Walz's two-

year figure and the approximate $1,000 cost of the device, the

maximum amount the jury could award plaintiff, based on his life

expectancy of 26 years, would be $13,000.  Further, dental

appointments at $50 per year would translate into $1,300 for

future medical expenses.  Therefore, plaintiff's future medical

expenses would total $14,300 which, along with the medical

expenses of $15,347.83 already incurred, would total $29,647.83.

		The jury's award of $100,000 for past and future

medical expenses was over three times the amount established in

the trial court and not supported by the evidence.  Thus, we find

the appropriate figure for past and future medical expenses is

$29,647.83, reducing plaintiff's total damages to $829,647.83. 

Accordingly, remittitur is required, and consistent with our powers under Supreme Court Rule 366(a)(1) (155 Ill. 2d R.

366(a)(1)), we reduce the jury's damage award in plaintiff's

favor against defendant to $829,647.83. 

	III. CONCLUSION

		 For the reasons stated, the trial court's judgment is

affirmed as modified.

		Affirmed as modified.

 		McCULLOUGH, P.J., concurs.

		STEIGMANN, J., dissents.

		JUSTICE STEIGMANN, dissenting:

		Because I believe the improper remarks of plaintiff's

counsel during voir dire and opening statements constitute reversible error, I respectfully dissent.

		Although the majority appropriately concludes that

plaintiff's counsel's statements were improper, it does not find

those statements constitute reversible error.  In my judgment,

these statements were highly prejudicial and, due to their

repetition, deprived defendant of the fair trial to which he was

entitled.

		Courts have consistently held that counsel commits

reversible error when he suggests that there was information he

wished the jurors to know but could not present to them, thus

implying that the opposing party somehow denied the jury the

opportunity to consider that information.  Crutchfield, 414 Ill. at 214, 111 N.E.2d at 144; Skelton, 214 Ill. App. 3d at 582, 573 N.E.2d at 1334; L.D. Brinkman & Co. -Midwest, 76 Ill. App. 3d at 695, 394 N.E.2d at 1229; see also Cancio v. White, 297 Ill. App. 3d 422, 431, 697 N.E.2d 749, 755 (1998) (counsel's improper

argument or misconduct may be a sufficient basis for a new

trial).      

		In this case, the comments of plaintiff's counsel

during voir dire and opening statements implied that by admitting liability, defendant was restricting plaintiff's ability to

present evidence to the jury.  Counsel's comments, which invited

the jurors to speculate regarding the nature of the evidence they were denied the opportunity to hear, were prejudicial, improper,

and wholly avoidable.  I agree with defendant that plaintiff's

counsel's repetition of essentially the same question three times

during voir dire, over defendant's objections, reinforced the inference that defendant was attempting to prevent the jury from

hearing evidence.  See Geisberger v. Quincy, 3 Ill. App. 3d 437, 441, 278 N.E.2d 404, 406 (1972) ("the continued effort to intro

duce immaterial evidence requiring opponent to make innumerable

objections creates in the juror's mind an impression that an

objecting party is attempting to conceal evidence").      

		The situation this case presents is akin to that in

criminal cases where a prosecutor makes comments about evidence

that the trial court specifically suppressed or excluded.  The

supreme court has held that a prosecutor exceeds the bounds of

permissible argument when he suggests that evidence of guilt

existed which the jury could not hear because of its inadmissi

bility.  People v. Emerson, 97 Ill. 2d 487, 497, 455 N.E.2d 41, 44-45 (1983); see People v. Ray, 126 Ill. App. 3d 656, 661, 467 N.E.2d 1078, 1082-83 (1984) (prosecutor committed reversible

error when he told the jury in closing that "I have all of this

that says" the defendant lied, and "I wish I could give you my

file as you sit there to go back in there, but I'm not allowed to

because that is the law").  Such comments are highly prejudicial. 

As the supreme court noted in Emerson, 97 Ill. 2d at 497, 455 N.E.2d at 45, "an insinuation which leaves the jury to speculate

may be more prejudicial than erroneously admitted specific proof."  Similarly, in this case, plaintiff's counsel's insinua

tion that defendant's admission of liability prevented the jury

from hearing evidence left the jury to speculate about the nature

of that evidence and was extremely prejudicial.

		I recognize that the trial court sustained defendant's

objection to plaintiff's counsel's comment during opening state

ment.  However, the court did not--as it should have--instruct

the jury to disregard the remark.  In addition, the evidence

connecting many of plaintiff's injuries to the November 2, 1996,

accident was not overwhelming, and the jury may well have re

turned a different verdict had counsel not made the improper

comments during voir dire and opening statements.  See Crutchfield, 414 Ill. at 214, 111 N.E.2d at 144 (judgments may be reversed because of prejudicial comments by counsel "even though

the trial court sustained objections to such statements, rebuked

counsel[,] and directed the jury to disregard the statements"). 

Under these circumstances, I conclude that counsel's comments

prejudiced defendant and denied him a fair trial.  

		The majority mentions that plaintiff's counsel's

improper statements were made in voir dire and near the very beginning of plaintiff's opening statement, implying that because

these improprieties occurred at the beginning of the jury trial,

their prejudicial effect may have dissipated by the time the case

was over and the jury began its deliberations.  However, this was

a one-day jury trial; thus, the improper statements would still

be fresh in the jury's mind as it considered the case.

		Further, given that this was a one-day jury trial and

addressed only the issue of damages, this court should hesitate

to accept a verdict which lacks our full confidence because of

the improper behavior of the prevailing attorney.  The majority's

conclusion, reducing the jury's damage award but affirming the

judgment, still awards plaintiff over $829,000.  Surely, we ought

to insist upon a repeat of this one-day jury trial so that before

a multi-hundred-thousand-dollar judgment is imposed on defendant,

we can be confident that he received a fair trial.  On this

record, that confidence does not exist.