Docket No. 91093–Agenda 33–September 2001.

JENNIFER SIMMONS et al., Appellants, v. ROLANDO M.

GARCES, M.D., Appellee.

Opinion filed January 25, 2002.

	JUSTICE McMORROW delivered the opinion of the court:

	In this appeal we are asked to determine whether the jury’s

answer to a special interrogatory is incompatible with the jury’s

general verdict, and, if so, whether the special interrogatory

controls. A jury returned a general verdict in the amount of

$675,000 against defendant Dr. Rolando M. Garces and in favor

of plaintiffs Jennifer Simmons (Jennifer) and Harold King (Harold),

who had brought a medical malpractice action against Dr. Garces

following the death of their infant daughter, LaTonya King. The

jury also answered “No” to the special interrogatory: “Did

dehydration contribute to cause the death of LaTonya King?” As

a result, in response to Dr. Garces’ post-trial motion, the circuit

courty of Cook County  trial court entered judgment in favor of Dr. Garces on

the special interrogatory. 735 ILCS 5/2–1108 (West 2000). A

divided appellate court affirmed, concluding that the jury’s answer

to the special interrogatory was “absolutely irreconcilable with the

general verdict” and the trial court therefore “properly entered

judgment in favor of defendant.” 319 Ill. App. 3d 308, 322. We allowed plaintiffs’ petition for leave to appeal. 188 Ill. 2d R. 315.

For the reasons set forth below, we affirm the judgment of the

appellate court.

BACKGROUND

	LaTonya King1 was born prematurely to Jennifer on December 28, 1993, and was hospitalized for two weeks thereafter. On

January 21, 1994, Jennifer brought LaTonya to Dr. Garces’ clinic

for a checkup. The child’s weight was five pounds, 12 ounces, and

Dr. Garces pronounced her a perfectly healthy baby.

	Dr. Garces practiced in a clinic at 7106 South Jeffery in

Chicago, about a block and a half from Jennifer and Harold’s

residence at 7234 South Jeffery. The clinic operated on a first-

come, first-served basis. Patients would sign in when they entered

the clinic, and would be seen by the doctor in that order. Dr.

Garces had two assistants, Sharon Robinson (Sharon), a certified

medical assistant, and Shalonda Sloan (Shalonda), an 18-year-old

with no formal training in patient care. One of the responsibilities

of the assistants was to notify the doctor if a patient presented an

emergency. If that were the case, the doctor would see the patient

out of turn.

	Jennifer testified that LaTonya took her normal feeding of four

ounces of formula on the night of January 23, 1994. The next

morning, January 24, Jennifer noticed loose stool in LaTonya’s diaper when the child awoke for her feeding. Jennifer denied at trial

that LaTonya took four ounces of formula at this 6 a.m. feeding,

but was impeached with her deposition testimony to the contrary.

At 8:30 a.m. LaTonya took two ounces of water. However, she

would not take her 10 a.m. feeding, and Jennifer became

concerned. She called Dr. Garces’ clinic and spoke to the doctor,

informing him of the situation, and he told her to switch to a

formula called Pedialyte. Jennifer tried to feed LaTonya the

Pedialyte, but the child would take only half an ounce.

	At 12:30 p.m. Jennifer again telephoned the clinic and spoke

to Sharon, who told her she should keep trying to get LaTonya to

take the Pedialyte. Jennifer’s subsequent attempts to feed LaTonya

the formula were unsuccessful. At that point Jennifer dressed the

baby warmly and walked to the clinic, arriving at about 1 p.m.

After about 15 minutes, Shalonda called Jennifer’s name and they

went to a waiting area, where Jennifer told Shalonda that LaTonya

was not sucking the bottle. Shalonda testified that she weighed and

measured LaTonya, and wrote the child’s height, weight,

temperature and head circumference in a temporary chart. She used

a temporary chart because she was unable to retrieve LaTonya’s

permanent chart. Shalonda then left the waiting area and went to

speak to the doctor. According to Jennifer, when Shalonda

returned, she told Jennifer that Dr. Garces wanted her to get some

Pedialyte from a drug store. Jennifer then left the clinic and went across the street to the drug store, picked up the Pedialyte, and

went home. She stated that she left the office because she was

following the doctor’s orders to obtain the Pedialyte.

	Jennifer tried repeatedly that afternoon to feed LaTonya the

formula but to no avail. She called the clinic at 2:29 p.m. and at

2:53 p.m., each time speaking to Sharon, who told her to continue

her efforts. During the second of these calls, Jennifer told Sharon

that LaTonya was sleeping more. At 3:56 p.m. Jennifer called the

clinic again and spoke to Dr. Garces, who told her to try a different

formula and if that did not work, to take LaTonya to the

emergency room. Dr. Garces said he was concerned that LaTonya

might become dehydrated. Soon after, at about 4:13 p.m., Jennifer

called a cab. She testified that she waited inside her apartment for

it to arrive, dressed the baby warmly, and then took the cab to

South Shore Hospital.

	Dr. Thomas Bahk, an emergency room physician at South

Shore, testified that LaTonya was dead when she arrived at the

emergency room at about 4:40 p.m. She had no respiration, no

blood pressure, and no pulse. He and the emergency room nurses

performed cardiopulmonary resuscitation but were unable to revive

her. She was pronounced dead at 5:06 p.m. on January 24, 1994.

	Marcel Parungao, an emergency room nurse, testified that the

baby’s rectal temperature at that time was 93.2 degrees Fahrenheit,

and her weight was five pounds, eight ounces. He also found loose

stool in her diaper. Myrna Carating, another nurse, testified that

LaTonya was wearing a diaper and pajamas, and was wrapped in

two receiving blankets that were “quite thin.” According to

Carating, Jennifer told her that LaTonya had been active at 2:30

p.m. Carating also recorded that just prior to Jennifer’s and

LaTonya’s arrival at the emergency room, LaTonya had stiffened,

her arms had stretched, and her neck was hyperextended.

	Chicago Police Officers Charles Howard and Paul Anderson

went to the hospital on January 24 after receiving a call about

LaTonya’s death. Anderson testified that Jennifer indicated she

walked to the hospital. Howard gave essentially the same

testimony, stating that a report prepared after they had gone to the

scene indicated that Jennifer walked to the hospital on January 24. Under cross-examination, Howard and Anderson conceded that

this report was not signed by a supervisor.

	Between 5 and 6 p.m., Chicago police department Detectives

John McMurray and David Friel were assigned to investigate

LaTonya’s death. After arriving at the hospital, they interviewed

hospital staff members as well as Jennifer and Harold. Friel stated

that they learned from Jennifer that she arrived at the hospital by

taxi. Friel and McMurray closed their investigation after

determining that there had been no criminal wrongdoing.

	Dr. Tae Lyong An, a forensic pathologist with the Cook

County medical examiner’s office, conducted an autopsy.

According to Dr. An, LaTonya’s death was caused by “dehydration

due to gastroenteritis.” LaTonya had sunken eyeballs and poor skin

turgor,2 or tension, both of which, according to Dr. An, are consistent with dehydration. Under cross-examination, Dr. An

conceded that premature babies can be born without fully

developed subcutaneous tissue and fat, and thus could have sunken

eyeballs without being dehydrated. In addition, premature infants

can have excess skin that would appear wrinkly and have less

tension. Dr. An also acknowledged that there was just a four-ounce

difference between the weight recorded for LaTonya on January 21

(5 pounds, 12 ounces), and her weight on January 24 in the

emergency room (5 pounds, 8 ounces). That is a weight loss of

4.4%, which Dr. An conceded, would be unlikely to cause death by

dehydration. He also acknowledged that his report included no

finding of tubular necrosis in the kidneys, a condition that is

consistent with death by severe dehydration, nor did he find any

anatomic or pathologic evidence of inflammation in the stomach or

small intestine, a condition that constitutes the definition of

gastroenteritis. Dr. An explained that there is such a thing as

“functional change of the intestine” which, though not anatomically

found, can cause diarrhea. “We call it gastroenteritis,” he said.

“That is nothing unusual.”

	Dr. An also testified that he did not think there was any

evidence of hypothermia as a possible cause of death. He said he

had information that Jennifer took LaTonya to the hospital by taxi.

He did not remember that Jennifer walked to the hospital.

	Jennifer and Harold, acting individually and as co-special

administrators of LaTonya’s estate, brought a wrongful-death

action against Dr. Garces, alleging that LaTonya’s death was a

proximate result of Dr. Garces’ negligence. Attached to the

complaint was a physician’s report asserting that LaTonya “died

from dehydration.”

	Plaintiffs presented the expert testimony of Dr. Gilbert Given,

a board-certified pediatrician, to establish that Dr. Garces deviated

from the applicable standard of care and that his negligent conduct

resulted in LaTonya’s death from dehydration. Dr. Given testified

that, in his opinion, LaTonya “was severely dehydrated and this

contributed to her death.” He said dehydration, which he defined

as a loss of body fluids,3 is determined by the percent of weight loss. A loss in body weight of more than 10% or 12% usually

indicates severe dehydration. In such instances, the child’s

circulation becomes involved, and the child may have lower blood

pressure. According to Dr. Given, LaTonya was 12% to 14%

dehydrated, based on a comparison of her weight on January 21,

1994 (5 pounds, 12 ounces), and her weight at autopsy, which Dr.

Given said was about 5 pounds. The appropriate treatment in

LaTonya’s case would have been “hospitalization and IV fluids.” 

	Dr. Given opined that Dr. Garces’ failure to see LaTonya and

intervene on January 24 amounted to negligence which contributed

to the child’s death. According to Dr. Given, “more likely than not,

if Dr. Garces had intervened with appropriate IV fluids [LaTonya]

would not have died.”

	On direct examination, Dr. Given was asked about

inconsistencies in evidence he had reviewed. He responded that

there were “numerous” inconsistencies, “[e]ven to the point of how

the baby got to the hospital. It was noted by one officer that the

mom took a cab. Someone else noted that the mom walked.”

	Dr. Given conceded on cross-examination that the medical

examiner’s report included no findings of tubular necrosis of the

kidneys, nor did it include any findings of inflammation of the

stomach, the large intestine or the small intestine. The report also

did not mention the exact number of times LaTonya had diarrhea,

nor did it describe LaTonya’s input of fluid prior to her death. As

far as Dr. Given knew, no one made any determination as to the

amount of fluids LaTonya took in or expelled “during this illness.”

	He also acknowledged that he did not know to a reasonable

degree of medical certainty the exact extent of the dehydration that

LaTonya suffered. “How dehydrated the child, the baby, was, I

don’t know,” Dr. Given said.

	Dr. Garces denied that he was negligent, and denied that any

claimed act or adomission on his part was a proximate cause of

plaintiffs’ claimed injuries. He presented expert testimony to

establish that LaTonya’s death was not caused by dehydration but

rather that it resulted from hypothermia, or possibly from

suffocation.

	Dr. Michael Kaufman, who was certified in anatomic

pathology and cytopathology, testified that he found no significant

evidence in the medical records or the autopsy report to indicate

that LaTonya died from dehydration. He opined instead that the

cause of death was hypothermia, or possibly suffocation. He noted

that LaTonya’s weight had changed by only 4.4% from January 21

until the time she was weighed in the emergency room on January

24 “just at the point of death.” Such a weight loss, he said, is

“insignificant” and insufficient to cause or contribute to cause

death by dehydration.

	Dr. Kaufman also noted that there was no indication of any

elevation in the levels of blood urea nitrogen, sodium or creatinine.

This, he said, was inconsistent with death due to dehydration. In

addition, the gross and microscopic findings in the autopsy report showed no evidence of gastroenteritis. The autopsy report also

included no reference to any findings of acute tubular necrosis,

which Dr. Kaufman said was inconsistent with severe dehydration.

	According to Dr. Kaufman, the most likely cause of death was

hypothermia. He noted that LaTonya’s temperature as recorded in

the emergency room on January 24 was 93.2 degrees, which he

termed “markedly depressed.” In order for death to result from

hypothermia, which is defined as a subnormal body temperature, it

must be of a significant enough degree that it alters the normal

body metabolism and creates an abnormal heart rhythm. Dr.

Kaufman said he found nothing in LaTonya’s autopsy report that

was inconsistent with a death by hypothermia.

	Dr. William Wittert, a board-certified pediatrician, also

testified for the defense. Dr. Wittert opined that LaTonya did not

die of dehydration. He noted that, according to the record

testimony, LaTonya took four ounces of fluid between 9 and 10

p.m. on January 23, another four ounces at 6 a.m. on January 24,

and two ounces at 8:30 a.m., plus a half ounce of Pedialyte later in

the morning. At the same time, there were only two references to

output in terms of stool: the loose stool that Jennifer said she found

in the diaper at 6 a.m., and the loose stool found in LaTonya’s

diaper at the emergency room. According to Dr. Wittert, these

inputs and outputs of fluid are inconsistent with dehydration. He

noted, in addition, that LaTonya’s weight loss from January 21 to

January 24 was only four ounces, or about 4.34%. Such a weight

loss could represent mild dehydration but is not life-threatening.

Even if the weight loss were as high as 10%, “babies should not die

from that level of dehydration.”

	As to other possible causes of LaTonya’s death, Dr. Wittert

said he did not have an opinion to a reasonable degree of medical

certainty as to what caused her death. However, he pointed to the

child’s 93.2 degree temperature, which he described as “very low.”

Most babies, he said, would probably survive that temperature, but

LaTonya was small and preterm, and in her case this temperature

might have contributed to or caused her death. He also said the

child might have suffocated.

	Dr. Wittert also opined that Dr. Garces and his staff possessed

the requisite skill and met the applicable standard of care in this case. According to Dr. Wittert, nothing that Dr. Garces did caused

harm to LaTonya.

	The instructions to the jury stated plaintiffs’ claims as follows:

Dr. Garces was negligent on the day of LaTonya’s death by (a)

failing to examine LaTonya after Jennifer brought her to the clinic

when he should have known that the child was experiencing

diarrhea, drowsiness, and the inability to suck;4 (b) failing to follow up by taking phone calls from Jennifer, when he should have

known of LaTonya’s symptoms; (c) failing to refer LaTonya to a

physician or hospital for examination, diagnosis, or IV treatment

when he knew or should have known of her symptoms; or (d)

permitting his staff to provide inappropriate medical advice or

decisions over the phone. The jury was instructed that it must not

decide the question of professional negligence based on personal

experience but only from expert testimony.

	The parties disagreed as to which instruction should be given

for proximate cause, with plaintiffs arguing for the long form of

Illinois pattern instruction No. 15.01, and defendant urging the

short form. See Illinois Pattern Jury Instructions, Civil, No. 15.01

(2000). The trial court agreed to give the long form, which stated

that:

			“When I use the expression ‘proximate cause,’ I mean

any cause which, in natural or probable sequence,

produced the injury complained of. It need not be the only

cause, nor the last or nearest cause. It is sufficient if it

concurs with some other cause acting at the same time,

which in combination with it, causes the injury.” Illinois

Pattern Jury Instructions, Civil, No. 15.01 (2000).

	Once the court agreed to give the long-form instruction,

defendant argued that a special interrogatory was needed in order

for the jury to determine specifically whether dehydration caused

LaTonya’s death. According to defendant’s counsel, if the jury

determined that dehydration was not involved in LaTonya’s death, then Dr. Garces could not be liable because “[t]hat’s their whole

case.”

	Plaintiffs’ counsel objected, arguing that the jury had heard

evidence of a variety of causes of death, and that it would be

prejudicial to plaintiffs to “make it very narrow” with this special

interrogatory. According to counsel, the jury might think that

LaTonya’s death was the result of a combination of causes. The

court asked, “What if they think it’s suffocation?” Plaintiffs’

counsel answered: “[I]f [the jurors] think it’s suffocation, there’s

been no testimony from the plaintiffs that suffocation would make

the doctor responsible, so they wouldn’t even get to this. They

would be on Verdict Form B [in favor of Dr. Garces].”

	The court suggested that a more appropriate interrogatory to

test the jury’s verdict would be: “Did dehydration contribute to

cause the death of LaTonya King?” The court gave this

interrogatory over plaintiffs’ objection.

	During their deliberations, the jury sent out a note asking three

questions:

			“(1) If we have already decided on Form A or Form B,

what is the purpose of the dehydration form?

			(2) Is the dehydration form mandatory?

			(3) Do we have to be unanimous on the dehydration

form?”

	The court’s response to the first question was: “It is the law.”

The court answered “Yes” to both the second and third questions.

	A short time later, the jury returned its verdict, finding in favor

of plaintiffs in the amount of $675,000. The jury answered the

special interrogatory in the negative. Defense counsel moved for

entry of judgment in favor of Dr. Garces on the basis of the

inconsistency.

	After allowing the parties to brief the issue, the court entered

judgment on the special finding in favor of defendant, rejecting

plaintiffs’ argument that the jury’s special finding was not

absolutely irreconcilable with the general verdict. The court stated:

		“[P]laintiffs concede their liability expert determined that

dehydration at least contributed to LaTonya’s death. The plaintiffs during the trial presented only one causation

expert and no other theory or mechanism for death that

was independent of dehydration. This Court finds that the

special finding was absolutely irreconcilable with the

general verdict.”

	Plaintiffs appealed, and the appellate court affirmed. In

reaching this decision, the appellate court stated:

			“Plaintiffs presented no expert testimony to establish

any other causation of death but dehydration. ***

			When the jury was asked to focus its attention on the

particularized question of whether dehydration contributed

to cause LaTonya’s death, it answered ‘No.’ Plaintiffs’

attempt to establish a causal connection between

defendant’s negligence and LaTonya’s death then failed

for lack of expert testimony.

			*** [T]here is no reasonable hypothesis remaining on

which to reconcile the jury’s answer to the special

interrogatory with the general verdict. The trial court

properly entered judgment on the special interrogatory.”

319 Ill. App. 3d at 317-18.

	We allowed plaintiffs’ petition for leave to appeal. 188 Ill. 2d

R. 315.

ANALYSIS

	Plaintiffs’ main argument before this court is that the jury’s

special finding was not irreconcilable with the general verdict, and

therefore the trial court should have entered judgment on the

general verdict and not on the special finding. According to

plaintiffs, the central issue here is not whether LaTonya died of

dehydration, but rather whether Dr. Garces was negligent and

whether his negligence was a proximate cause of LaTonya’s death.

Plaintiffs contend that regardless of the medical cause of death,

LaTonya would be alive today were it not for Dr. Garces’

negligence in failing to examine LaTonya and refer her to an

emergency room in the early afternoon on January 24. Thus it was not inconsistent for the jury to find Dr. Garces liable for LaTonya’s

death and at the same time conclude that dehydration did not contribute to cause her death. Plaintiffs argue in the alternative that

the jury’s special finding was against the manifest weight of the

evidence. They also contend that the special interrogatory should

not have been given because it was confusing and not in proper

form.

	Plaintiffs additionally point to various instances of alleged

misconduct on the part of defense counsel that they assert deprived

them of a fair trial. They also claim that the trial court erred in

admitting certain evidence and barring other evidence, and in

refusing to give a missing-evidence instruction.

	Special interrogatories are governed by section 2---–1108 of the

Code of Civil Procedure, which states:

			“Unless the nature of the case requires otherwise, the

jury shall render a general verdict. The jury may be

required by the court, and must be required on request of

any party, to find specially upon any material question or

questions of fact submitted to the jury in writing. Special

interrogatories shall be tendered, objected to, ruled upon

and submitted to the jury as in the case of instructions.

Submitting or refusing to submit a question of fact to the

jury may be reviewed on appeal, as a ruling on a question

of law. When the special finding of fact is inconsistent

with the general verdict, the former controls the latter and

the court may enter judgment accordingly.” 735 ILCS

5/2–1108 (West 2000).

	A special interrogatory serves “as guardian of the integrity of

a general verdict in a civil jury trial.” O’Connell v. City of Chicago, 285 Ill. App. 3d 459, 460 (1996). It tests the general verdict

against the jury’s determination as to one or more specific issues

of ultimate fact. Noel v. Jones, 177 Ill. App. 3d 773, 783 (1988); Gasbarra v. St. James Hospital, 85 Ill. App. 3d 32, 38 (1979). A special interrogatory is in proper form if (1) it relates to an ultimate

issue of fact upon which the rights of the parties depend, and (2)

an answer responsive thereto is inconsistent with some general

verdict that might be returned. Noel, 177 Ill. App. 3d at 783; Gasbarra, 85 Ill. App. 3d at 38. Special findings are inconsistent with a general verdict only where they are “clearly and absolutely

irreconcilable with the general verdict.” Powell v. State Farm Fire & Casualty Co., 243 Ill. App. 3d 577, 581 (1993). If a special interrogatory does not cover all the issues submitted to the jury and

a “reasonable hypothesis” exists that allows the special finding to

be construed consistently with the general verdict, they are not

“absolutely irreconcilable” and the special finding will not control. Powell, 243 Ill. App. 3d at 581. In determining whether answers to special interrogatories are inconsistent with a general verdict, all

reasonable presumptions are exercised in favor of the general

verdict. Bilderback v. Admiral Co., 227 Ill. App. 3d 268, 270 (1992).

	We conclude that the jury’s special finding in the instant case

is “absolutely irreconcilable” with the general verdict. As noted, the

jury answered “No” to the special interrogatory: “Did dehydration

contribute to cause the death of LaTonya King?” Plaintiffs based

their entire case on the theory that Dr. Garces’ negligence caused

LaTonya’s death by allowing her to become severely dehydrated.

If, as the jury concluded, dehydration did not contribute to cause

LaTonya’s death, then the necessary link between Dr. Garces’

alleged negligence and LaTonya’s death is missing, and he could

not be found liable. The special finding thus is irreconcilable with

the general verdict in favor of plaintiffs and against Dr. Garces.

	As in every negligence case, plaintiffs here needed to establish

more than the standard of care and a deviation from that standard.

They also were required to show a casual connection between the

deviation and the injury, in this case LaTonya’s death. Evanston Hospital v. Crane, 254 Ill. App. 3d 435, 441 (1993). In a medical malpractice case, proximate cause must be established by expert

testimony to a reasonable degree of medical certainty. Aguilera v. Mount Sinai Hospital Medical Center, 293 Ill. App. 3d 967, 972 (1997); accord Townsend v. University of Chicago Hospitals, 318 Ill. App. 3d 406, 413 (2000).

	Plaintiffs here presented the testimony of one expert, Dr.

Given, who opined that LaTonya was severely dehydrated and that

this contributed to her death. According to Dr. Given, it was more

likely than not that LaTonya would have survived if Dr. Garces had

intervened with appropriate IV fluids.

	As the appellate court below correctly noted, plaintiffs

presented no expert testimony establishing any cause of death other than dehydration. In addition, while defendant’s experts did

suggest other possible causes, i.e., hypothermia and suffocation, plaintiff’s attorney disputed these theories in closing argument.

Moreover, the trial record reveals no expert testimony establishing

that Dr. Garces would have been to blame if LaTonya died from

either of these other causes. Plaintiffs’ counsel conceded as much

when, in arguing against the giving of the special interrogatory, he

stated that if the jury thought LaTonya died of suffocation, “there’s

been no testimony from the plaintiffs that suffocation would make

the doctor responsible, so [the jurors] wouldn’t even get to this.

They would be on verdict form B [in favor of Dr. Garces].” Absent

expert testimony linking Dr. Garces’ conduct to death by

hypothermia or suffocation, and given the jury’s rejection of

dehydration as a cause of death, there is no reasonable hypothesis

remaining on which to reconcile the jury’s special finding with the

general verdict.

	Notwithstanding the foregoing, plaintiffs argue that it does not

matter whether LaTonya died of dehydration or some other

specific medical cause. What is important, they contend, is that

LaTonya was ill and Dr. Garces failed to examine and treat her

accordingly, thus proximately causing her death. Hence there is no

inconsistency between the jury’s finding that dehydration was not

a cause of LaTonya’s death, and the general verdict in favor of

plaintiffs and against Dr. Garces. Plaintiffs assert that:

		“It is irrefutable that had Dr. Garces seen LaTonya and

referred her to an emergency room for care as he should

have in the early afternoon [of January 24], she would be alive today. The hypothermia and suffocation speculation

about the medical cause of death that the defense

presented does not make a difference in a legal causation

analysis; had proper care been given, LaTonya would not

have been in a position to become hypothermic or have

accidentally suffocated.”

	The gist of this argument appears to be that, regardless of the

specific cause of death, Dr. Garces had a duty to examine LaTonya

and refer her to an emergency room for care. If LaTonya had been

sent to an emergency room in the early afternoon on January 24, she would not have been in a position to become hypothermic or

suffocate on the way to the hospital later that day.

	This argument lacks merit. It is well settled that two distinct

requirements must be met in order to establish proximate cause.

The defendant’s conduct must be shown to be an actual cause of

the plaintiff’s injury, and it must be a legal cause as well. Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 455 (1992); Nelson v. Thomas, 282 Ill. App. 3d 818, 828 (1996). Actual cause, or cause in fact, can be established only where “there is a reasonable

certainty that a defendant’s acts caused the injury or damage.” Lee, 152 Ill. 2d at 455. A defendant’s acts are a legal cause only if they are “so closely tied to the plaintiff’s injury that he should be held

legally responsible for it.” McCraw v. Cegielski, 287 Ill. App. 3d 871, 873 (1996). A determination as to legal cause is “a policy

decision that limits how far a defendant’s legal responsibility should

be extended for conduct that, in fact, caused the harm.” Lee, 152 Ill. 2d at 455.

	In the instant case, even if we were to conclude, which we do

not, that Dr. Garces’ failure to examine LaTonya and refer her to

an emergency room was an actual cause of LaTonya’s death, this

would not establish that his conduct proximately caused her death.

It would still have to be shown that Dr. Garces’ conduct was a

legal cause. However, this cannot be so, given the facts in this case.

As noted, the only cause of death linked by expert testimony to Dr.

Garces’ conduct was dehydration. See Aguilera, 293 Ill. App. 3d at 972; Townsend, 318 Ill. App. 3d at 413. Accordingly, if the cause of death were anything other than dehydration, Dr. Garces

could not be held legally responsible. The link to his conduct would

simply be too attenuated to support a judgment of liability. Cf. Lee, 152 Ill. 2d at 455; McCraw, 287 Ill. App. 3d at 873.

	Plaintiffs rely upon Cohen v. Sager, 2 Ill. App. 3d 1018 (1971), and Bilderback v. Admiral Co., 227 Ill. App. 3d 268 (1992), for support of their contention that the special

interrogatory in the instant case was not irreconcilable with the

general verdict. In both Cohen and Bilderback, a general verdict was found to have addressed issues not covered by special findings,

and there was thus no inconsistency. Plaintiffs’ reliance upon these

cases is misplaced.

	In Cohen, the plaintiff claimed she suffered injuries when the automobile in which she was a passenger was struck by the

defendant’s vehicle. The jury returned a general verdict in favor of

the defendant, but found in response to special interrogatories that

inclement weather and icy conditions were not the proximate cause

of the accident, and that the defendant was guilty of negligence that

contributed to cause the accident. The trial court entered judgment

in favor of the plaintiff on the special findings, which it ruled were

inconsistent with the general verdict. The appellate court reversed,

holding that the special findings “did not exclude every reasonable

hypothesis consistent with the general verdict” (Cohen, 2 Ill. App. 3d at 1020), and there was thus no inconsistency. According to the

court, the jury could have found, consistent with the general

verdict, that “while the defendant was negligent in causing the

collision, no injury was suffered or that [the plaintiff’s] injury was

not proximately caused by the defendant’s negligence.” Cohen, 2 Ill. App. 3d at 1021.

	In Bilderback, where the plaintiff alleged that he was fired in retaliation for seeking workers’ compensation benefits, the jury

returned a general verdict in favor of the plaintiff, but found in

response to special interrogatories that his discharge had been

recommended and authorized on the belief that the plaintiff had

shoved a supervisor and given false information to the company

nurse. The trial court agreed with the defendant that the special

findings were inconsistent with the general verdict, and it therefore

entered judgment in favor of the defendant. The appellate court

reversed, holding that the general verdict addressed an issue that

was not determined by the special findings, and there was thus no

inconsistency. According to the court, the jury found in its general

verdict that the actual reason for the plaintiff’s discharge was that

he was pursuing workers’ compensation benefits. There were no

special interrogatories asking this specific question, and the

interrogatories that were given “d[id] not establish that anything else was the actual reason” for the discharge. Bilderback, 227 Ill. App. 3d at 271.

	In the instant case, unlike Cohen and Bilderback, the issue addressed by the special interrogatory was not peripheral but rather

was an ultimate question of fact upon which the rights of the parties depended: “Did dehydration contribute to cause the death

of LaTonya King?” See Noel, 177 Ill. App. 3d at 783. Because dehydration was the only cause of death linked by expert testimony

to Dr. Garces’ conduct, the jury’s negative answer to this

interrogatory effectively eliminated any other “reasonable

hypothesis” that might have reconciled the special finding with the

general verdict. See Powell, 243 Ill. App. 3d at 581. The special finding removed from consideration the only cause of death that,

based on the evidence presented at trial, could be proximately

connected to Dr. Garces’ conduct. Any other basis for the general

verdict postulating a different cause or causes would lack the

requisite causal connection to Dr. Garces. The general verdict and

the special finding in the instant case are absolutely irreconcilable.

	Plaintiffs argue in the alternative that the special interrogatory

is against the manifest weight of the evidence. According to

plaintiffs, the evidence in support of dehydration as the cause of

death was “overwhelming,” and “[n]o other legitimate explanations

for LaTonya’s death were submitted to the jury.” We disagree.

	“  ‘A verdict is against the manifest weight of the evidence

where the opposite conclusion is clearly evident or where the

findings of the jury are unreasonable, arbitrary and not based upon

any of the evidence.’ ” Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992), quoting Villa v. Crown Cork & Seal Co., 202 Ill. App. 3d 1082, 1089 (1990). In the instant case, contrary to plaintiffs’

contentions, there was ample expert testimony to support the

special finding that dehydration did not contribute to cause

LaTonya’s death.

	Dr. Kaufman, one of defendant’s experts, testified that he

found no significant evidence in the medical records or the autopsy

report to indicate that LaTonya died of dehydration. He noted that

LaTonya’s weight had dropped by only 4.4% from January 21 until

the time she was weighed in the hospital emergency room on

January 24 “just at the point of death.” Such a weight loss, he said,

is “insignificant” and insufficient to cause or contribute to cause

death by dehydration. In addition, there was no indication of any

elevation in the levels of blood urea nitrogen, sodium or creatinine.

This, Dr. Kaufman said, was inconsistent with death due to

dehydration. The gross and microscopic findings in the autopsy report showed no evidence of gastroenteritis, which Dr. An, the

medical examiner, asserted had led to dehydration in this case. The

autopsy report also included no findings of acute tubular necrosis,

which Dr. Kaufman said was inconsistent with severe dehydration.

	Dr. Kaufman’s testimony also provided an alternative cause of

death, hypothermia, that was unrelated to defendant’s alleged

negligence. Dr. Kaufman noted that LaTonya’s temperature as

recorded in the emergency room on January 24 was 93.2 degrees,

which he described as “markedly depressed.” He said he found

nothing in LaTonya’s autopsy report that was inconsistent with

death by hypothermia.

	Dr. Wittert, another of defendant’s experts, stated that “[t]his

child did not die from dehydration.” He noted that, according to

the record testimony, LaTonya took in some 101⁄2 ounces of fluid

during the period prior to her death, but there were only two

references to output in terms of stool: the loose stool in her diaper

at 6 a.m. on January 24, and the loose stool found in her diaper

later in the day at the emergency room. According to Dr. Wittert,

these inputs and outputs of fluid were inconsistent with

dehydration. He also testified that the weight loss recorded for her

between January 21 and January 24 could represent mild

dehydration but was not life-threatening. Even if the weight loss

were as high as 10%, Dr. Wittert said, “babies should not die from

that level of dehydration.”

	Plaintiffs’ expert, Dr. Given, conceded on cross-examination

that the medical examiner’s report included no findings of tubular

necrosis, nor did it include any findings of inflammation of the

stomach, the large intestine or the small intestine. He also

conceded that he did not know, to a reasonable degree of medical

certainty, the exact extent of the dehydration that LaTonya

suffered.

	The jury had ample expert evidence on which to base a special

finding that dehydration did not contribute to cause LaTonya’s

death. Given this evidence, we cannot say that the opposite

conclusion was clearly evident, or that the special finding was

unreasonable, arbitrary, and not based upon any of the evidence.

See Maple, 151 Ill. 2d at 454. We agree with the trial and appellate courts below that the special finding here was not against the

manifest weight of the evidence.

	 Plaintiffs also contend that the special interrogatory should

not have been given in the first instance because it was confusing

and not in proper form. Again, we disagree.

	As noted, a special interrogatory is in proper form if (1) it

relates to an ultimate issue of fact upon which the rights of the

parties depend, and (2) an answer responsive thereto is inconsistent

with some general verdict that might be returned. Noel, 177 Ill. App. 3d at 783; Gasbarra, 85 Ill. App. 3d at 38. In addition, it should be a single question, stated in terms that are simple,

unambiguous, and understandable; it should not be repetitive,

confusing, or misleading. Snyder v. Curran Township, 281 Ill. App. 3d 56, 61 (1996). It need not contain all of the elements of

negligence and is proper if it focuses on one element that is

dispositive of the claim. Snyder, 281 Ill. App. 3d at 60-61. A special interrogatory is to be read in context with the court’s other

instructions to determine how it was understood and whether the

jury was confused. LaPook v. City of Chicago, 211 Ill. App. 3d 856, 866 (1991); Morton v. City of Chicago, 286 Ill. App. 3d 444, 451 (1997). A trial court may not conclude from the mere fact of

inconsistency between a general verdict and a special interrogatory

that the jury was confused by the interrogatory. Blakey v. Gilbane Building Corp., 303 Ill. App. 3d 872, 882 (1999). To do so would nullify the provision of section 2–1108 of the Code of Civil

Procedure (735 ILCS 5/2–1108 (West 2000)) that states that a

special interrogatory controls where there is inconsistency. Blakey, 303 Ill. App. 3d at 882, citing Borries v. Z. Frank, Inc., 37 Ill. 2d 263, 266 (1967).

	The special interrogatory in the instant case is in proper form

and is not confusing. It asks a single, straighforwardstraightforward question

relating to an ultimate issue of fact upon which the rights of the

parties depend: whether dehydration contributed to cause

LaTonya’s death.

	Interrogatories similar to that in the instant case were upheld

in Costa v. Dresser Industries, Inc., 268 Ill. App. 3d 1 (1994), and Bluestein v. Upjohn Co., 102 Ill. App. 3d 672 (1981). In Costa, the plaintiff claimed that her husband died of mesothelioma as a result of exposure to asbestos-containing products manufactured,

sold or used by the defendants. The jury, which found in favor of

the defendants, answered “No” to this special interrogatory: “Do

you find that Dominic Costa died from the disease of

mesothelioma?” The court in Costa found no error in the giving of this interrogatory. The plaintiff’s entire case was based on the claim

that her husband died of mesothelioma as a result of asbestos

exposure. Thus, a special finding that he did not die of

mesothelioma was dispositive of the plaintiff’s claim.

	In Bluestein, the plaintiff sought damages for injuries allegedly resulting from his ingestion of Cleocin, a drug manufactured by the

defendant. The jury returned a general verdict in favor of the

plaintiff, but answered “No” to a special interrogatory asking

whether Cleocin was a proximate cause of the plaintiff’s injuries.

Because of this answer, the trial court entered judgment in favor of

the defendant. The reviewing court in Bluestein affirmed, concluding that the jurors’ answer to the special interrogatory

“reflected their acceptance of [the defendant’s] argument that the

plaintiff was suffering from a disease that was completely unrelated

to his ingestion of Cleocin.” Bluestein, 102 Ill. App. 3d at 676.

	In the instant case, as in Costa and Bluestein, the special interrogatory asked a single question relating to an ultimate issue

of fact that was dispositive of plaintiffs’ claim. The interrogatory

was proper.

	Plaintiffs, however, cite to Blakey v. Gilbane Building Corp., 303 Ill. App. 3d 872, 881-82 (1999), where an inconsistent special

finding was held to be misleading because, inter alia, it used a term, “sole proximate cause,” that had not been defined for the

jury. According to plaintiffs, the situation in the instant case is

similar: the trial court did not define “dehydration,” which is

perhaps the key term in the special interrogatory. Plaintiffs

therefore claim that “[i]t is understandable that the jury had

difficulty comprehending the special interrogatory.”

	We find no merit in this argument. Plaintiffs’ expert, Dr.

Given, defined dehydration, as did every other physician who

testified at trial. As the appellate court below correctly noted,

“although the court did not define the term ‘dehydration,’

dehydration was extensively discussed and defined through expert testimony. The jury did not consider the special interrogatory

without having heard extensive testimony on the subject.” 319 Ill.

App. 3d at 319.

	Plaintiffs also point to the questions that the jury asked about

the special interrogatory as evidence that they were confused. As

noted, after the jurors began deliberations, they sent out a note

asking these questions:

			“(1) If we have already decided on Form A or Form B,

what is the purpose of the dehydration form?

			(2) Is the dehydration form mandatory?

			(3) Do we have to be unanimous on the dehydration

form?”

The court’s answer to the first question was: “It is the law,” and it

answered “Yes” to the second and third questions.

	We agree with the trial and appellate courts that the questions

asked by the jury do not reflect confusion. As the appellate court

noted: “The questions regarded procedure. The jury did not appear

confused about the actual question posed in the special

interrogatory.” 319 Ill. App. 3d at 319.

	Construing Dr. Garces’ special interrogatory in conjunction

with the proximate-cause instructions given by the trial court, we

find no reason to conclude that the interrogatory was unclear or

that the jury was confused by it. See LaPook, 211 Ill. App. 3d at 866; Morton, 286 Ill. App. 3d at 451. The special interrogatory was in proper form, and it fulfilled its intended function of serving

as a check on the jury’s general verdict. See Noel, 177 Ill. App. 3d at 783; Gasbarra, 85 Ill. App. 3d at 38. 

	Plaintiffs additionally point to various instances of alleged

misconduct on the part of defense counsel that they assert deprived

them of a fair trial. They also claim that the trial court erred in

admitting certain evidence and barring other evidence, and that

these alleged errors unfairly tainted the proceedings. In addition,

plaintiffs contend that the trial court’s refusal to give a missing-

evidence instruction unfairly prejudiced them.

	After a careful review of the record, we conclude that none of

these alleged errors or instances of alleged misconduct prevented

plaintiffs from receiving a fair trial. Any error that might have occurred did not affect the outcome of the case. See Lawson v. G.D. Searle & Co., 64 Ill. 2d 543, 559 (1976) (plaintiff not entitled to absolutely error-free trial). “ ‘Where it appears that an error did

not affect the outcome below, or where the court can see from the

entire record that no injury has been done, the judgment or decree

will not be disturbed.’ ” Lawson, 64 Ill. 2d at 559, quoting Both v. Nelson, 31 Ill. 2d 511, 514 (1964). Here the jury returned a substantial ($675,000) general verdict in plaintiffs’ favor. Plaintiffs

were not unfairly prejudiced. See McDonnell v. McPartlin, 192 Ill. 2d 505, 534-35 (2000).

	With regard to the allegations of misconduct, plaintiffs

contend that defendant’s counsel (1) demeaned the requirements

for bringing suit, (2) were untruthful about defendant’s requesting

a jury trial and other matters, (3) exaggerated plaintiffs’ burden of

proof, (4) flauted prior court rulings by, e.g., commenting on Harold’s absence from the courtroom, (5) made improper

comments about how long the trial was taking, (6) violated

Supreme Court Rule 213(g) (177 Ill. 2d R. 213(g)) by eliciting

improper testimony during direct examination of Dr. Wittert, one

of defendant’s experts, and (7) made improper pleas for sympathy

for the defense.

	We note initially that in the majority of the instances cited by

plaintiffs, the court either sustained counsel’s objection or granted

appropriate relief such as striking a comment or an answer. In

these instances, then, any potential error was cured. See Diaz v. Kelley, 275 Ill. App. 3d 1058, 1066 (1995). At other times, plaintiffs’ counsel failed to object in a timely manner. In these

instances, plaintiffs’ objections thus were waived. See Diaz, 275 Ill. App. 3d at 1072; Golden v. Kishwaukee Community Health Services Center, Inc., 269 Ill. App. 3d 37, 49 (1994). The trial court also overruled some of the objections of plaintiffs’ counsel,

but these rulings were well within the court’s discretion, and, as

noted, did not affect the outcome of the case. See Taluzek v. Illinois Central Gulf R.R. Co., 255 Ill. App. 3d 72, 83 (1993) (evidentiary rulings will not be overturned absent a clearly evident

abuse of discretion; in order to warrant reversal, error must have

been substantially prejudicial and affected the outcome of the case);

see also King v. American Food Equipment Co., 160 Ill. App. 3d 898, 911 (1987) (abuse of discretion may be found only where no

reasonable person would take the view adopted by the trial court),

quoting In re Marriage of Asch, 100 Ill. App. 3d 293, 296 (1981)).

	Moreover, many of these claims of alleged misconduct came

during opening statement or closing argument. Questions as to the

prejudicial effect of remarks made during opening statement and

closing argument are within the discretion of the trial court, and

determinations as to such questions will not be overturned absent

a clear abuse of discretion. Rockwood v. Singh, 258 Ill. App. 3d 555, 558 (1993); Magna Trust Co. v. Illinois Central R.R. Co., 313 Ill. App. 3d 375, 395 (2000); Sawicki v. Kim, 112 Ill. App. 3d 641, 645 (1983). In determining whether there has been an abuse

of discretion, we may not substitute our judgment for that of the

trial court, or even determine whether the trial court exercised its

discretion wisely. Griffith v. Mitsubishi Aircraft International, Inc., 136 Ill. 2d 101, 115 (1990). We do not find an abuse of discretion here. The trial court properly informed the jury that

opening statements and closing arguments were not evidence.

	Plaintiffs also contend that the trial court erred in admitting

evidence as to whether Jennifer took a taxi or walked to South

Shore Hospital. Plaintiffs moved in limine to bar this evidence, arguing that it was collateral. According to plaintiffs, defendant’s

experts indicated in their depositions that this issue was irrelevant

to their opinions. Defendant, on the other hand, argued that the

issue was relevant to Jennifer’s credibility, asserting that she told

an emergency room nurse and the initial investigating officers that

she walked, but later told detectives that she took a taxi. The trial

court denied plaintiffs’ motion to bar this evidence.

	As the appellate court correctly noted, plaintiffs have waived

this issue for review. They failed to object when Dr. An, the

medical examiner, gave testimony on this matter. Under cross-

examination, Dr. An testified that he had information that Jennifer

took LaTonya to the hospital by taxi, and he did not remember her

walking. The denial of a motion in limine does not in itself preserve an objection to disputed evidence that is introduced later

at trial. “When a motion in limine is denied, a contemporaneous objection to the evidence at the time it is offered is required to preserve the issue for review.” Brown v. Baker, 284 Ill. App. 3d 401, 406 (1996). Plaintiffs made no such objection here.

	Moreover, plaintiffs’ counsel elicited testimony on this issue

from Dr. Given on direct examination. When asked about

inconsistencies in evidence he had reviewed, Dr. Given stated that

there were numerous inconsistencies, “[e]ven to the point of how

the baby got to the hospital. It was noted by one officer that the

mom took a cab. Someone else noted that the mom walked.” Thus,

as the appellate court noted, plaintiffs not only failed to object at

trial, but introduced the evidence themselves. They cannot now

complain that the trial court erred in admitting the evidence. Reid v. Sledge, 224 Ill. App. 3d 817, 822 (1992).

	Plaintiffs next argue that the trial court erred in striking the

testimony of Chicago Police Sergeant John McMurray, who in

January 1994 was one of the detectives who investigated

LaTonya’s death. During his testimony, McMurray stated that he

had learned from Officers Charles Howard and Paul Anderson that

they had erroneously put in their report that Jennifer walked to the

hospital. This report was the only one from Officers Howard and

Anderson that the trial court had allowed in evidence. A second

report indicated that she took a cab, but this report did not surface

until after the trial had begun, and the trial court therefore had

ordered it barred. McMurray’s testimony indirectly brought in the

issue of this second report, and the trial court stated that this

testimony thus was a violation of the previous order. The trial

court also stated that McMurray’s testimony violated another order

with respect to unidentified persons who allegedly gave him

information about how Jennifer arrived at the hospital. On

defendant’s motion, the trial court struck McMurray’s entire

testimony, which took up 34 pages in a trial transcript that totaled

nearly 2,000 pages.

	As noted, it is within the discretion of the trial court to make

evidentiary rulings, and these determinations are not to be

overturned absent a clear abuse of discretion. Taluzek, 255 Ill. App. 3d at 83. We cannot say that there was such an abuse of

discretion here. Even if there were some error, it was harmless.

Plaintiffs were able to introduce some of the main elements in

McMurray’s testimony through Chicago Police Detective David Friel, who was McMurray’s partner in the investigation of

LaTonya’s death. Friel testified, as did McMurray, that he learned

that Jennifer arrived at the hospital by taxi, and that they closed

their investigation by determining that there was no apparent

criminal wrongdoing in LaTonya’s death. Plaintiffs were not

unfairly prejudiced by the striking of McMurray’s testimony. See McDonnell, 192 Ill. 2d at 534-35.

	Plaintiffs argue in addition that the defense was able to “soil”

their case by introducing evidence to the effect that Jennifer and

Harold were told to hire a lawyer and that they then changed their

story about how Jennifer arrived at the hospital. Only two of the

instances cited by plaintiffs took place before the jury. In the first,

which came during closing argument, defendant’s counsel stated

that:

		“[Jennifer] tells half the people that she walked, and you

heard two Chicago police officers get up on that witness

stand and say, I learned that she walked. *** Someone

around that emergency room said, get a lawyer. And then

you hear a later version by some later arriving detectives

who say the story really sounds better, if you’re going to

sue someone, let’s make it a cab.”

	Plaintiffs’ counsel objected, and the court responded by

reminding the jury that closing arguments are not evidence. The

court told the jury: “You’ve heard the evidence. Rely on your

collective memory of what the evidence is.”

	“The scope and character of closing argument are left to the

discretion of the trial judge, who enjoys the best position to view

the demeanor of counsel and the atmosphere of the trial. [Citation.]

Accordingly, determinations regarding closing arguments will not

be reversed absent an abuse of discretion.” Rockwood, 258 Ill. App. 3d at 558. Given that the trial court reminded the jury that

closing arguments are not evidence, we cannot say that the court’s

determination here was an abuse of discretion.

	The other instance cited by plaintiffs that took place before the

jury was the following stipulation:

			“MR. KARASIK [defendant’s counsel]: Yes your

honor. I believe counsel is willing to stipulate that Mr. King did learn that his wife was advised to contact an

attorney sometime on the night of January 24, 1994. So

stipulated?

			MR. BRENT [plaintiffs’ counsel]: So stipulated.”

	Given that this instance consisted of a stipulation by the

parties, we fail to see how plaintiffs could have been unfairly

prejudiced by it. Cf. People v. Bowman, 221 Ill. App. 3d 663, 666 (1991) (“[D]efendant cannot participate in an agreement and

stipulation which accrues to his benefit, and then complain on

review about the inevitable result of the agreement. He invited or

agreed to the procedure and is now estopped from asserting it as

error”).

	The remaining instances of “evidence” cited by plaintiffs all

took place out of the presence of the jury. We do not see how any

of these instances could have affected the outcome here as it

pertains to the jury’s special finding. Accordingly, we conclude that

plaintiffs were not unfairly prejudiced.

	Plaintiffs also challenge the trial court’s refusal to strike any

evidence suggesting that Jennifer was contributorily negligent.

Plaintiffs contend that there were many “subtle intimations” that if

Jennifer had only done the right thing, LaTonya would have

survived. They point, for example, to defense counsel’s comment

in his closing argument about the “walking to the hospital issue.”

According to plaintiffs, any suggestion that Jennifer walked rather

than rode to the hospital “was used to suggest that Jennifer, and

not Dr. Garces, should be to blame.”

	Near the end of the trial, after both sides had rested, plaintiffs

asked the court to go back and strike any evidence that suggested

or implied that Jennifer was negligent. Plaintiffs did not identify

specific examples of evidence that they wanted stricken. The trial

court denied the request, noting that there had been no claim of

contributory negligence. Therefore, any evidence suggesting that

someone other than defendant was at fault would simply go to the

issue of whether Dr. Garces was negligent, which was the central

issue in the trial. The court also stated that it would be an

“insurmountable task” to go back to the beginning of the trial and

“go witness by witness,” determining which testimony should be stricken, and then telling the jury to strike that evidence. The court

would have to restate the testimony for the jurors in order to

refresh their memories, and then would be in the somewhat

awkward position of telling the jury to strike that same testimony.

	We agree with the trial court and with the appellate court,

which expressly upheld this ruling. A defendant is always free to

offer evidence that the conduct of a third person was the sole

proximate cause of the plaintiff’s injuries. McDonnell, 192 Ill. 2d at 520-21. We also note plaintiffs’ failure to identify for the trial

court the specific examples of evidence that it wanted stricken. It

was unreasonable for plaintiffs to expect the trial court to scour the

record in search of error. See People v. Biloche, 414 Ill. 504, 511 (1953).

	Finally, plaintiffs argue that they were unfairly prejudiced

when the trial court refused to give a missing-evidence instruction.

Such an instruction would advise the jury that, if a party fails to

offer evidence that is within its power to produce, the jury may

infer that this evidence would be adverse to that party. See Illinois

Pattern Jury Instructions, Civil, No. 5.01 (3d ed. 1995) (hereinafter

IPI Civil 3d No. 5.01). The evidence at issue here was LaTonya’s

measurements, particularly her weight, which, according to

testimony at trial, were recorded when Jennifer and LaTonya went

to Dr. Garces’ clinic in the afternoon on January 24. Plaintiffs

argued to the trial court that because this record was never

produced, they were entitled to have an IPI Civil 3d No. 5.01

missing-evidence instruction given.

	The trial court refused to give the instruction, stating that it

would be inappropriate because defendant offered a “plausible

reason” for its failure to produce the record. We agree with the

trial court and with the appellate court, which upheld this

determination. The decision whether to give an IPI Civil 3d No.

5.01 missing-evidence instruction is within the sound discretion of

the trial court. Schaffner v. Chicago & North Western Transportation Co., 129 Ill. 2d 1, 22 (1989). This instruction is warranted only if “there was no reasonable excuse for failure to

produce the evidence.” Brown v. Moawad, 211 Ill. App. 3d 516, 531 (1991). Here, defendant provided a reasonable explanation.

The permanent chart that was generated for LaTonya on January 21, 1994, when she made her first visit to the clinic, was out of the

office for billing and was not available on January 24. For that

reason, LaTonya’s measurements that were taken at the clinic on

January 24 were recorded on a temporary chart. The information

from the temporary chart was never entered into the permanent

chart because Dr. Garces did not see LaTonya on that day.

	It was not an abuse of discretion for the trial court to refuse to

give an IPI Civil 3d No. 5.01 instruction here. Plaintiffs were not

unfairly prejudiced, particularly in light of the fact that the court,

while refusing the instruction, nevertheless allowed plaintiffs to

argue whatever inferences they felt the jury should draw from

defendant’s failure to produce the record. Accordingly, in his

closing argument, plaintiffs’ counsel told the jury that:

		 “We also heard that Jennifer went to the clinic and was

never seen by the doctor. There’s a dispute about what

happened then. Was she weighed? Was LaTonya King

weighed? Well, was the temperature taken? Was the head

circumference taken? Did we see that chart? Did we see

those measurements? Did we get that weight when we

were doing all the math? *** Did we get the one weight

that really mattered in this case?”

Plaintiffs thus were able to argue the missing-evidence issue to the

jury.

CONCLUSION

	We hold, as did the appellate court, that the jury’s special

finding was absolutely irrenconcilableirreconcilable with the general verdict, and

the trial court therefore properly entered judgment in favor of

defendant. The special interrogatory was in proper form and was

not confusing, and the jury’s response to it was not against the

manifest weight of the evidence. Plaintiffs received a fair trial. They

were not unfairly prejudiced by the alleged errors and instances of

alleged misconduct that they put forth. For the foregoing reasons,

we affirm the judgment of the appellate court.

	Affirmed.