FIRST DI VISI ON March 24, 2008

No. 1-07-0076 JEAN LISOWSKI , Indiv. and as the Special Adm'r of the Estate of Edward A. Lisowski, De ceased, Plaintiff-Appellee,

v. MacNEAL MEMORI

AL HOSPI TAL ASSOCIA TION and JOHN D. BROFMAN, Defend ants-App ellants. ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook Cou

nty No. 03 L 2903

Honorab le John B. Grogan, Judge Presi ding.

PRESID ING

JUSTICE

CAHILL deliver ed the opi nion of the

court: Defendants MacNeal Memorial Hospital Association and John D. Brof man, M.D., appeal an order granting plaintiff Jean L isowski's motion for a new trial. Plaintiff brought a negligence action against defendants after the death of her husband, Edward A. L isowski (Lisowski). A jury returned a verdict for defenda nts. Plaintiff moved for a new trial. Her main contention was that the trial court erred in refusing to give the "missing-witness" jury instruction (Illinois Pattern Jury Instr uctions, Ci

vil, No. 5. 01 (2006)(herei nafter IPI Civil (2006 ) No. 5.01 )) afte r defen dants failed to produce their expert witness. We reverse and dire ct the trial court to reinstate the jury ’s verdict

. Plaintiff

allege d in her c omplaint that Lis owski suff ered y ears of ill health before his1-07-0076

2

death becaus e of def

endan ts' negl igence. She al leged Br ofman was negl igent i n perfo rming a thoracentesis to drain fluid from Lisowski' s lungs through a chest tube on November 6, 1996. She also alleged Brofman failed to obtain L isowski’s consent to the procedure. Plaintiff alleged MacNeal Hospital was liable under an ag ency theor y. During

the procedure, Lisowski’s diaphragm and liver were lac erated. He required emergency surgery and intensive care. He was released from the hospital 10 days after the procedure. He died thre e yea rs later of ventricular fibrillation, a heart problem. The first trial in October 2005 ended in a hung jury . The second trial, beginning on May 1, 2006, is the subject of this appeal. In discovery

, defendants disclosed Dr. Jesse Hall as a controlled expert witness under Supreme C ourt Rule 2 13(f)( 3) (210 I ll. 2d R. 213 (f)(3) ). Defe ndants sa id Hall, a pulmonolog

ist and critical care specialist, would state that Brof man's conduct complied with the standard of care. Hall apparently

was deposed in 2002 but the deposition is not in the record. Plaintiff maintains Hall stated in the deposition that Brofman deviated from the standard of c are. Plaintiff disclosed Dr. William Warren, a thoracic surgeon, as her expert witness under Rule 213(f)(3) (210 Ill. 2d R. 213(f) (3)). Plaintiff did not disclose that Warren would say Lisowski suffered depre ssion and suicidal tendencies because of Brof man’s negligence. Plaintiff also disc losed Edw ard Alle n Liso wski (Edward), the couple ’s son, who plaintif f said wou

ld testify to family hardship s attribut

able to B rofman' s neglig ence. T hree mon ths befor e the tria l, plaintiff 's coun sel sent a

letter to defense counsel, asking t

o add Hal l as a pla

intiff' s witness i f defenda nts intend ed to aba ndon him. D efense

counsel r esponde d by

letter, s tating d

efenda nts1-07-0076

3

had not abandoned Hall. In op ening st

atements , plaintif

f's cou nsel told the jury

that Hall would test

ify and state that Brofman deviated from the standard of c are by inse rting the chest tube at the wrong loca tion and in the wrong direction. Defense c ounsel did not object. Plaintiff called Brofman in her case in chief as an adverse witness under section 2-1102 of the Code of Civil Procedure (Code) (735 I LCS 5/2-1102 (West 2006)). Brofman denied deviating from the standard of care either in performing the thoracentesis or in obtaining consent. Brofman said he received tra ining from Hall when he was a medical student. B rofman denied having “independent knowledge ” of Hall's alleged opinion that Br ofman deviated from the standard of care in treating L isowski. Plaintiff’s expert Dr. Warren said he reviewed the medica l records from the procedure, the depositions of the treating phy sicians, a 1999 electrocardiogra m report and an autopsy

report in forming his opinions. Warren said Brofman deviated from the standa rd of care in obtaining consent while Lisowski was sedated a nd in the way he pe

rformed the thoracentesis. Warren admitted on cross- examination that he d id not know

how L isowski re acted to sedation or his mental ca pacity at the time

he alleg edly

consente d. Warre

n said obta

ining consent af

ter as lit tle as one-tenth of a milligram of the sedative would be a deviation from the standard of care. The trial court barred Warren from testify ing that Lisowski was depresse d and suicidal after the pr oc ed ur e b ec au se pl ai nt if f f ai le d t o d is cl os e t he se op in io ns in di sc ov er y. Defendants called Brofman in their c ase in chief. He testified, "I believe that the anatomical landmarks I chose and the techniques I chose and the care with which the tube was1-07-0076

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inserted all complied very much with the standard of care." The f ollowing took place in the jury ’s prese

nce duri ng cro ss-examina

tion of Br ofman by plaintiff 's coun sel: "Q. [(by plaintiff' s counsel)] *** [Y]ou said you did [your training in] pulmonar y critical c are at the University of Chicago, corre ct? A. [(Bro fman)] Ye s. Q. And that in fact was under Dr. Jesse Hall, the expert that y our counsel has reta ined in this

case, c orrect ? A. *** Dr . Hall wa s part of the fac ulty at the time

I wa s there, ye s. Q. So y ou were actually study ing unde r Dr. Jesse

Hall, cor rect? A. Dr. Hall w as part of the facult y and was i nvol ved in my traini ng. Q. Right. So when Dr. Hall comes in here later today and tells us that you violated the standard of care by inserting the chest tube [as y ou did], *** do you have any problem with him testifying to that ***? MS. STEVENSON [(defendants' counsel)]: Objection. Move to strike. THE COURT [(to plaintiff's counsel)]: Counsel, you have now taken the burden to bring Dr. Hall in. BY MR. B ASIL

E [(plainti ff's c ounsel)]: Q. Do you have

any problems with him testify ing to that, or are y

ou going to have a problem w

ith qualif ications? MS. STEVENSON: Same objection ***. THE COURT: That would be sustained.1-07-0076

5 *** THE COURT: I will let him answer that question. That puts the burden on you [(plaintiff)] to bring him in. A. [(by Brofma

n)]: Dr. Hall is certainly fr ee to testify in any

way he chooses ***." After Brofman's testimony, defense counsel presented written motions for directed verdicts on the issues of consent and medical neglig ence. The trial court took the motions under advisement. Later, in the jury instruction conference, the following took place : "THE COURT: Plaintiff's instruction No. 1 is instruction [IPI Civil (2006) No. 5.01], f

ailure to call a wi tness. I take it y ou're refer ring to Je sse Hall? MS. STEVENSON [(defendants’ counsel)]: My objec tion is that the plaintiff shifted the burden

of proof *** by putting i n stateme nts which d

efense did not put in. Therefore, the [IPI Civil (2006) No. 5.01] instruction as against the defendant only is improper because it was the plaintiff who made all of the issues ab ou t w ha t t hi s e xp er t w as go in g t o s ay. [Hall] is currently unavailable this after noon because of surgical and other issues and I could not bring him in today , but I told y

ou this morning that if that was the c ase, we

were re ady

to proce ed and c lose witho ut him. MR. BASI

LE: ** * [B]ack in

Februa ry of 2006[,] I

sent a letter to de fense counsel t elling her that I

wanted to

call Dr. Hall as one of my witnesse s. I a

lso wanted to amend my [Rule 213 disclosures].1-07-0076

6 She sent me a letter *** indicating that [defendants had] not abandoned Dr. Hall and that they

intended to call him in their case in chief. The deposition of Dr. Hall in various parts states that Dr. Brofman violated the stand ard of c are. Ev en until now, and the Court is aware, de fense

co un se l h as in di ca te d t ha t J es se Ha ll wo ul d b e h er e t o t es ti fy. * * * THE COURT: If y

ou [(plaintiff's counsel)] had stopped with violating the standar d of car e, y ou would ha

ve been within appropriate

bounds for crossexamination ***. I would have allowed that without any question and may ver

y well have given this instruction. Ho we ve r, wh en you in di ca te d t o t ha t j ur y th at [t he ] d oc to r w ou ld te st if y, you then broug

ht it upon yourself to produce tha t doctor to testify. ***

*** *** Both parties had an obligation to produce the doctor, nobody produced him. Therefore, the Court will not give the instruction, and the Court will strike references to what Dr. Jesse Hall may have testified to. * * * MR. BASIL

E [(plaintiff's counsel)]: So the record is clear also, the witness a t this point has not bee

n abandoned by

the defe nse coun sel, and I

would at this time request an opportunity to call him in. *** We would ask that we could re open our

case an d call him a s another

witness or

a rebutt al witnes s.1-07-0076

7 THE COURT: If y

ou issued a subpoena, you c ould have brought him in. MS. STEVENSON: He hasn't issued a subpoena . MR. BASIL

E: I couldn't. *** [Defense c ounsel] said [defendants were] not abandoning [Hall], he's still under [defendants'] control. I can't issue a subpoena today be cause [defense counsel] still hasn't abandoned him as far a s the record goes. At th is po int, if [d efense couns el is] going t o sti pulat e for t he reco rd she 's abandoned him, I 'd like t

he oppor tunity to call him

in as a re buttal witness. MS. STEVENSON: Your honor, I haven' t abandoned him, he's not availab le. I

have a r ight to ma

ke a leg al deter

mination w

hether t o procee d with this case as is or try to c ontinue the case when [Hall] is available. ***

*** MR. BASIL

E: I would ask that we have a short continuance and see if we can get him in here tomorrow morning ***. THE COURT : I ha

ve no rea son to cont

inue this f urther. I' m going

to proceed at this time. *** The ins truction [ 5.01] is refused." In c losing a

rgumen ts, plainti ff's c ounsel sa

id Brofman's c onduct ca

used ser ious injury

to Lisowski. Counsel argued that def endants would try to trivialize the injury by focusing

on Lisowski's other health problems. Plaintiff' s counsel said: "[Lisowski] almost died twice in the hospital." He argued that the main issue was whe ther Brofman inserted the chest tube1-07-0076

8

negligently , not Lisowski's medical history . "[F]rom the beginning I told you we are

not denying that [Lisowski] had congestive heart failure [and] noninsulin dependent diabetes," counsel said. Defense counsel said in closing arg uments that Lisowski died of congestive he art failure. As noted, Lisowski died of ventricular fibrillation but it is undisputed that he suffere d from congestive heart failure bef ore his death. Defense counsel arg ued that plaintiff's exaggera tion of the seriousness of her husband's condition after the pr ocedure was contradicted by the fact that famil y members were no t call ed to Lis owski 's beds ide aft er the p rocedu re and t hat th e coup le's son Edward did not testify at the tria l. The trial court instructed the jury that it was plaintiff's burden to prove defendants ac ted or failed to act in one of the way s claimed by plaintiff, that plaintiff wa s injured and that de fe nd an ts ’ n eg li ge nc e p ro xi ma te ly c au se d p la in ti ff ’s in ju ry. Th e t ri al ju dg e t he n t ol d t he ju ry: "[T]here was some evidence concerning a Dr. Jesse Hall. You are to disregard a ny refe rence of what was alleged concer

ning Dr. Jesse Hall." The jury re

turned a verdict in defendants' fa vor. Plaintiff moved for

a new tri al. Defe

ndants in t

heir re sponse to p laintiff

's motion said Hall's medical practice and trave l out-of-town prevented him from appearing dur ing the trial. Defendants said Hall would not have been available until two day s after the trial ended. After a hearing, the trial cour t granted plaintiff's motion for a new trial in the f ollowing

wr it te n o rd er , s ta ti ng in it s e nt ir et y:

"This matter coming to be heard on plaintiff' s motion to vacate judgment and for new trial ; the judg e having read the briefs [a nd] heard argume nt, [i]t is1-07-0076

9

hereby or dered: (1) The judgment of May 9, 2006, is hereby va

cated and the matter is set for [r etrial] on March 21 , 2007 at 9 :30 in [Room] 24 07 [without] further noti ce." There was no written statement of the reasons for the ruling. See Turner v . Commonwe alth Edison Co. , 35 Ill. App. 3d 331, 333, 341 N.E.2d 488 (1976) ("When a new trial is granted a conci se sta temen t of fi ndin gs or rea sons shoul d be in corpo rated i nto t he reco rd by the t rial j udge so that the reviewing court may know what prompted his action"). Nor can we a scertain the judge's reasons from a tra nscript of the hearing because the re is none in the record. As a thre shold matte

r, plainti ff arg

ues that w e must aff

irm the or der for a new tri al because defenda nts violate d Supreme

Court Rule

323(a) (210 I ll. 2d R. 323 (a)) in f ailing to provide a complete record. Plaintiff notes the absence of: (1) Hall's deposition; (2) the letters between the attorneys on defendants' refusal to abandon Ha ll; and (3) a transcript of the hearing on plaintiff's motion for a new trial. Rule 323(a) provides: “The report of proce edings shall include all the evidence pertinent to the issues on appeal.” 210 Ill. 2d R. 323(a). “ Absent a sufficient record, the reviewing court presumes that the trial court conformed to the law and that its rulings we re supported by the evidence.” Adams v. Sarah Bush Lincoln He alth Center , 369 Ill. App. 3d 988, 997, 874 N.E.2d 100 (2007). In ge

neral, the burden is on the appellant to present a satisfactory rec ord. Foutch v. O'Bry ant , 99 Ill. 2d 389, 391-92, 459 N.E.2d 958 (1984). But a r eviewing court may

consider an appeal despite deficiencies in the recor d where the trial transcripts sufficiently convey the conduct at issue. Gonzalez v. Nissan North America, Inc. , 369 Ill. App. 3d 460, 463, 860 N.E.2d1-07-0076

10

386 (2006). Doubts arising from the incompleteness of the rec ord will be resolved in favor of the appellee. Foutch , 99 Ill. 2d at 392. Here, the material pertinent to this appeal appea rs in the trial transcript. Plaintiff does not claim this transcript is incomplete. The transcript, with plaintiff's motion for a new trial, provides a sufficient record for re view. See Sendera

k v. Mitche ll , 282 Ill. App. 3d 881, 886, 668 N.E.2d 1041 (1996) (where the court does not state its rea sons for granting a new trial, we look to the posttrial motions and assume the errors stated there prompted the order) . Accord Rodriguez v. Chica

go Tra nsit Author

ity , 58 Ill. App. 2d 150, 155, 206 N.E.2d 828 (1965). See also Berry

v. G. D. Searle & Co. , 56 Ill. 2d 548, 556, 309 N.E.2d 550 (1974) (objections considered on review are " delimit[ed]" to those in the complaint). Defendants first argue that the trial c ourt abused its discretion in granting a new trial because the jury

's verdict was not against the manifest we ight of the evidence. Plaintiff argue s that this c ourt must de fer to the trial cou rt beca use the ju dge the re was in a better position to observe the trial and recognize err ors. A new trial is proper if the verdict was ag ainst the manifest weight of the evidence. Maple v. Gustafson , 151 Ill. 2d 445, 454, 603 N.E.2d 508 (1992). A verdict is ag ainst the manifest weight of the evidence wher e the opposite conclusion was evident or the verdict was unreasonable or arbitrary

and not based on the evidence. Maple , 151 Ill . 2d at 454. T he jur y's role is: ( 1) to res olve conf licts in the

evidenc e; (2) to d

etermine the cre dibility

of witnes ses; and (3) to decide the weight to be give n each witness's testimony

. Maple , 151 Ill. 2d at 452. After the jury rea

ches a verdict, the trial court must not reweigh the evidence or interfere with a ver dict1-07-0076

11

merely bec ause another result was possible or reasonable. Maple , 151 Ill. 2d at 452. Nor can this court reach its own conclusions on questions of fact where the tria l was fair and the evidence did not favor either side. Maple , 151 Ill. 2d at 452-53. We will reverse an or der for a new trial only if the trial court abuse d its discretion. Maple , 151 I ll. 2d at 45 4. A cour t abuses i ts discretion when it grants a new trial despite sufficie nt evidence to support the jury ’s verdict. Maple , 151 Ill. 2d at 456. To establish medical malpractice, the plaintiff must show a deviation from a standar d of care and a causal connec

tion between the deviation and the injury

. Simmons v. Garces , 198 I ll. 2d 541, 556, 763 N.E.2d 720 (2002). "[P]roximate cause must be established by e xpert testimon y to a reasonable degree of me dical certain ty." Simmons , 198 Ill. 2d at 556. Where the medical expert testimony of the ca usal connection is contingent, speculative or merely possible, proximate cause is not established. Knauerhaze v. Nelson , 361 Ill. App. 3d 538, 549, 836 N.E.2d 640 (2005). Here, the opinions of Warren and Brofman c onflicted. Brofman, who testified over a two-day period a s plaintif

f's adverse wit

ness, on d irect exa mination by

defenda nts and on c

rossexamination by

plaintiff denied de

viating from the standard

of care of a pulmonologist performing a thoracentesis. Warre n, a thoracic surgeon and not a pulmonologist, said his revie w of documents showed Brofman deviated from a pulmonologist's standard of care. I t was the jury's r ole to resolve these conflicts, assess the credibility of Brofman and Warren and deter mine the weight to be given to each doctor's testimony. See Maple , 151 Ill. 2d at 452. The jury resolve d these ma

tter in de fendant s' favo

r. This conclusion was not ar bitrary or unrea sonable i

n1-07-0076

12

light of the conflicting evidence bef ore the jury. A

new trial was not justified on the grounds that the jury' s conclusion was against the manifest weight of the evidence. See Maple , 151 Ill. 2d at 454. We turn to the question of whether plaintiff was entitled to a new trial because trial court

errors render ed the tr ial unfa ir. Plainti ff cites Tonarelli v. Gibbons , 121 Ill. App. 3d 1042, 1048, 460 N.E.2d 464 (1984), to argue that a new trial is re quired where the accumulation of evidentiary a

nd instructional errors causes prejudice. A new tri al should b e gran ted wher e the tria l court' s ruling s in the co

urse of t he trial r esult in prejudicial error. Herington v. Illinois Power Co. , 79 Ill. App. 2d 431, 438, 223 N.E.2d 729 (1967). A reviewing court should reverse an order for a new trial and re instate the jury' s verdict where errors were insubstantial, not prejudicial to the movant or insufficient to justify a new tria l. Lagoni v. Holiday

Inn Midway, 262 Ill. App. 3d 1020, 1038, 635 N.E.2d 622 (1994). “The mer e fact that multiple errors are present does not in and of itself r esult in prejudicial error.” First National Bank of La

Grange v. Glen Oaks Hospital & Me dical Center , 357 Ill. App. 3d 828, 844, 829 N.E.2d 378 (2005). We review in turn the errors raised in plaintiff’s posttrial motion and on appeal. Ea ch question is subject to its own standard of review. Redmond v. Socha , 216 Ill. 2d 622, 633, 837 N.E.2d 88 3 (2005). We first c onsider w hether t he trial c ourt err

ed in deny

ing plai ntiff' s reques t for IPI Civil (2006) No. 5.01 as to Hall. This is the "missing-witness" or "adverse-inference" instruction. Wilkerson v. Pittsburgh Corning Corp. , 276 Ill. App. 3d 1023, 1026, 659 N.E.2d 979 (1995). The instruction "allows the jury to infer that any e

vidence not offered but within the1-07-0076

13

control of a p arty is adverse to th at party." First National Bank of L a Grange v. L owrey , 375 I ll. App. 3d 181, 210, 872 N.E.2d 447 (2007). The decision to grant or deny a party’ s request for this instruction rests with the sound discretion of the court. Schaffner v. Chic ago & North Western Transportation Co. ,129 Ill. 2d 1, 22, 541 N.E.2d 643 (1989). Defendants argue that I

PI Civil (2006) No. 5.01 was properly denied because Hall was equal ly availa ble to both parti es. Def endan ts cla im th ey had a reas onabl e excu se for H all's unavailability—his surge ry schedule

and travel plans. Defendants rely on Chiricosta v. Winthrop-Breon , 263 I ll. App. 3d 132, 159, 6 35 N.E.2d

1019 (199 4), for t

he propo sition that

a party 's requ est for a n instruc tion should

be gra nted only if she cle arly

is entitle d to it. Def

endants cite Bulge

r v. Chica go Tra nsit Author

ity , 345 I ll. App. 3d

103, 121, 8 01 N.E.2d

1127 (200 3), to argue that a ne w trial on the basis of jury instructi ons is appr

opriate only where " a party

's rig ht to a fair trial h as been seriou sly prejudiced." Bulger , 345 Ill. App. 3d at 121. Plaintiff argue s she was

entitled t o the missin

g-witne ss instruction under the crite ria established by our supre

me court in Schaffner , 129 Ill. 2d 1, 541 N.E.2d 643. This instruction should be g

iven whe n: (1) the missing w

itness wa s under the contro l of the pa rty adverse ly affected by

the instruction; (2) the witness could have been produced by reasonable diligence; (3) the witne ss was not e qually availab le to the p arty

who requ

ested the instructi on; (4) a

reasona bly prudent person would have produced the witness if he or she believed the testimony would be favorable; and (5) there was no re asonable excuse for failing to produce the witness. Schaffner ,129 Ill. 2d at 22. Here, the trial court refused the missing-w itness instruction based on its conclusion:1-07-0076

14

"Both parties had an obligation to produce the doctor, nobody produc ed him." An analy sis of the Schaffner factor s shows Ha

ll was unde

r defen dants' c ontrol to the extent tha t they had name d him

as a con troll ed ex pert w itnes s, but plain tiff, with reason able d ilige nce, co uld h ave ob taine d Hall 's appear ance by sub poena under Rule 2 37 (16 6 Ill. 2d R. 23 7). Th is rul e prov ides t hat th e miss ing witness of one party

can be compelled by

another party

to appear and testify

at trial. Section (a) of the rule provides: “Any witness shall respond to any lawf ul subpoena of which he or she has actual knowledge ***.” 166 Ill. 2d R. 237(a). A subpoena is an order of the court, not an overture by

a party, a nd it requires compliance. Camco, Inc. v. Lowery , 362 Ill. App. 3d 421, 429, 8 39 N.E .2d 65 5 (200 5), ci ting People ex rel. Fisher v. Carey , 77 Ill. 2d 259, 265, 396 N.E.2d 17 (1979). Rule 237 can be used by an injured plaintiff to produce a witness at trial even if the witness had be en within t he defe ndant’s c ontrol an

d disclose d by

the defe ndant in discovery. Collier v. Avis Rent A Car System, I nc. , 248 Ill. App. 3d 1088, 1100, 618 N.E.2d 771 (1993). Here, a reasonably

prudent plaintiff would have produced Hall by subpoena if she believe d Hall wou

ld discre dit Brof

man's de fense a

nd suppor t her com plaint. Wha

tever Ha ll said in his depo sition, both

parties k new it in 20 02. Plainti ff could have moun

ted the e ffort to subpoena Hall in the four y ears between his deposition and this trial. Although defendants we re obligat ed to prod

uce Hal l, they

present ed a plau sible excu se for hi s absenc e on the da y hi s testimony was expected and notified the court in a

dvance that they were pr epared to close without Hall, if necessary . Based on the criteria stated in Schaffner , the tria l court did

not abuse its discretion in refusing to give the missing-witness instruction.1-07-0076

15

Plaintiff relies on Bargman v. Economics L aboratory , Inc ., 181 Ill. App. 3d 1023, 537 N.E.2d 938 (1989), and Ciborowski v. Philip Dressler & Associates , 110 Ill. App. 3d 981, 443 N.E.2d 618 (1982), to argue that the court' s refusal to give the missing-witness instruction, among other errors, warra nted a new trial. In Bargman , the trial court erred in refusing the missing-witness instruction where the witness was in the defendant's control and no rea sonable excuse was given for failing to c all him. Bargman , 181 Ill. App. 3d at 1028. I n Ciborowski , the defendant's failure to call a w itness under its control warranted the missing-witness instruction despite the fact that the plaintiff c ould have subpoena ed the wit ness. The

court re lied on C. Mc Cormick, E vidence §249, at 5 33-34 (19 54): " ' "When it would be natural under the c ircumstances for a party to call a particular witness *** his ad versar y may use this failu re as t he bas is for invo king an advers e infer ence ** *." ' " Ciborowski , 110 Ill . App. 3d at 9 86, qu otin g Biel v. Wolff , 126 Ill. App. 2d 209, 223, 261 N.E.2d 474 (1970). In both Bargman

and Ciborowski , the c ourt f ound t hat th e prop riety of t he mis singwitness instruction depends on the circumstances at hand. Bargman , 181 Ill. App. 3d at 1028; Ciborowski , 110 Ill. App. 3d at 986. Here, the c ircumstances differ from those in Bargman and Ciborowski . Defendants here consistently maintained that Hall was in their control but unavaila ble to test ify at the tri al beca

use of his surger y sc hedule a nd trave l plans. Pla

intiff did not attempt to rebut this excuse. The next issue also pertains to jury instructions. Defe ndants argue that the trial court correctly instructed the jury to disregard plaintiff's prejudicial refer ences to Hall in her opening1-07-0076

16

statemen t and cro ss-examina

tion of Br ofman. Pla

intiff re sponds tha

t defend ants can not compla

in on appeal of plaintiff's refere nces to Hall because they failed to object at trial. To preserve an issue for appeal, a party must object at trial and r aise the issue in a posttrial motion. People v. Enoch , 122 I ll. 2d 176, 1 86-87, 52 2 N.E.2d 1 124 (1988 ). An issue is preserved for review wher e it was included in a response to an opponent's posttrial motion. Vaughn v. Speaker , 156 Ill. App. 3d 962, 966, 509 N.E.2d 1084 (1987). The transc ript here shows defense counsel objected during c ross-examination when plaintiff's counsel asked Brofman if he “would have a problem" when Hall testified to his deviation from the standard of care. Defendants ag ain raised the issue of plaintiff's prejudicial ref erences to Hall in their written response to plaintiff's motion for a new trial. Defe ndants' claim that plaintiff made prejudicial statements was preserved for review. We believe that plaintiff's conduct in revealing Hall's alleged testimony

to the jury in her opening statemen t and cro ss-examina

tion of Br ofman fu rther su pports the conclusi on that she

is not entitled to a new trial on the basis of jury instructions. A defendant is entitled to a trial free from a plaintiff's improper remarks that dra w attention to the defendant's failure to call witnesses or otherwise attempt to shift the burden of proof to the defendant. People v. Thomas 121 I ll. App. 3d 883, 891, 460 N.E.2d 402 (1984). The missing-witness instruction should not be given where, as here, prejudicial ref erences to the missing witness were made dur ing the trial. Wilkerson , 276 Ill. App. 3d at 1030. Questions that presume facts not in evidence are prejudicial because the jury

may assume the witness, if c alled, would have admitted the alleged fac ts. Bartimus v. Paxton Community Hospital , 120 Ill. App. 3d 1060, 1064, 458 N.E.2d 1072 (1983).1-07-0076

17

Where a party

has injected error into the proceeding s it is "manifestly unfair" for that party to be granted a new trial. See McMath v. Katholi , 191 I ll. 2d 251, 2 55, 730 N. E.2d 1 (20 00). For all of these reasons, plaintiff's refe rences to Hall militate against the missing-witness jury instruction. We now turn to the last question pertaining to jury instructions—whether the trial court erred in telling the jury

to disregard plaintiff's refe rences to Hall. Defendants claim the instruction was needed to cure plaintiff's introduction of inadmissible evidenc e, including: (1) hearsay evidence that Hall said Brofman brea ched the standard of care; (2) c ross-examination of Brofma n that exce eded the

scope of direct; a nd (3) improper imp eachme nt with an i

mpermissi

ble hypothetical question. As noted, instructing the jury rests within the sound discretion of the court. Schaffner , 129 Ill. 2d at 22. The court has a duty to instruct the jury to disreg ard improper evidence, such as hearsay

. People v. Rice , 234 I ll. App. 3d 12, 22, 599N.E.2d 12 53 (1992) . In g eneral , crossexamination cannot exceed the scope of direct examination. Anderson v. Human Rights Comm 'n , 314 I ll. App. 3d 35, 44, 731 N.E.2d 37 1 (2000). Althoug h a party is not entit

led to present her theory

of the case through cross-examination ( Anderson , 314 Ill. App. 3d at 44), hypothetical questions are permissible cross-examination ( Leonardi v. Loyola University of Chica go , 168 I ll. 2d 83, 96 , 658 N.E. 2d 450 (19 95)). Th e cross- examining party may use facts in evidence that conform to her theory of the case. Leonardi , 168 Ill. 2d at 96. "I t is within the sound discretion of the trial court to allow a hy pothetical question, although the supporting evidence has not already

been adduced, if the interroga ting counsel gives assurance it will be1-07-0076

18

produced and co nnected later ." Leonardi , 168 Ill. 2d at 96. "Evidence a dmitted upon an assurance that it will later be connected up should be excluded upon fa ilure to establish the connection ." Leonardi , 168 Ill. 2d at 96. Here, the trial c ourt prop erly instructe d the jury

to disreg ard plai

ntiff' s refer

ence to H all on cross-examination of Brofman. Plaintiff's question, "when Dr. Hall comes in here later today and tells us that you violated the standar d of care," was not stated as a hy pothetical but as a fact. As such, the question was improper as hearsay and as cross-examination bey ond the scope of direct examination. But eve n if the question we

re a pro per hy pothetic al, the tr

ial cour t corre ctly instructed the jury to disregard the references af ter plaintiff failed to produce Hall and connect the hypothetical to admissible evidenc e. See Leonardi , 168 Ill. 2d at 96. The next iss

ue is whether the

trial cou rt erre d in barr

ing plai ntiff fr om reope ning he r case or callin g Hall a s a rebut

tal witne ss. A cour

t's rulin g on a pa rty's requ est to reo pen her c ase to present additional evidence will not be disturbed absent an abuse of disc retion. In re Estate of Doy le , 362 I ll. App. 3d

293, 301- 02, 838 N. E.2d 355 (2005). A c ourt abuses its discretion where its decision is arbitrary, fa nciful or unreasonable, or when no rea sonable person would take the same view. People v. Illgen , 145 Ill. 2d 353, 364, 583 N.E.2d 515 (1991). Plaintiff argue s that the t

rial cou rt should have allowed her to reope n her ca se beca

use defendants' unfair trial strateg y prevente d the jury from hea ring Hall's damaging

testimony. She cites Hollembaek v. Dominick's Finer Foods, I nc. , 137 Ill. App. 3d 773, 778-79, 484 N.E.2d 1237 (1985). There, the trial court did not err in allowing the plaintiff to reopen her case for the limited pur

pose of c larify

ing the r ecord on "an evi dentiar

y ma tter of ut most import

ance in1-07-0076

19

plaintiff 's case." Hollembaek ,137 Ill. App. 3d at 778. The court noted the fa ctors to be considered in deciding whether to reope n proofs. Hollembaek , 137 Ill. App. 3d at 778, citing Crothers v. La Salle I nstitute , 68 Ill. 2d 399, 370 N.E.2d 213 (1977). "[A] trial court should take into account various factors, including the existence of an e xcuse for the failure to introduce the evidence at trial, e.g ., whethe r it was inadverte

nce or c alculate d risk; whe ther the adverse party will be sur

prised or unfairly prejudic ed by

the new e

vidence ; whether

the evide nce is of utmost importance to the movant's case; and whether there are the most cogent rea sons to deny the request." Hollembaek ,137 Ill. App. 3d at 778. The factors stated in Hollembaek support the trial court's denial of plaintiff's re quest here to reopen her case. Plaintiff offere d no reasonable excuse for failing to subpoena Ha ll, other than her contention that Hall remained under defenda nts' control. As we have said, a party can subpoena a witness under the opposition's control under Rule 237(a) ( 166 Ill. 2d R. 237(a)). See Camco , 362 I ll. App. 3d

at 429; Collier , 248 I ll. App. 3d at 1100. I

t was plai ntiff' s burden t

o present evidence proving Br ofman's negligenc e, not defendants' burden to disprove it. See Blue v. Environmental Engineering, I nc. , 215 Ill. 2d 78, 98, 828 N.E.2d 1128 (2005) ("the bur den of proof remains on the plaintiff throughout the procee dings to prove all of the elements of negligence") . The trial court did not abuse its discretion in deny ing plaintiff's request to reopen proofs. See Illgen , 145 Ill. 2d at 364. The next issue is whether the trial court erred in allowing def ense counsel's closing comments on: (1) Lisowski's son Edward' s failure to testify at the tr ial; and (2) congestive heart failure as Lisowski's c ause of death when the actual cause was ventricular fibrillation.1-07-0076

20

Defend ants c laim their argumen ts wer e prop er when consi dered i n cont ext, citi ng People v. Kliner , 185 Ill. 2d 81, 157, 729 N.E.2d 20 (2000) (a re viewing court must examine closing remarks in the context of the entire proceeding) . They ar gue that plaintiff misconstrues the comment, "we didn't hear from the f amily members." Defendants maintain this comment did not refer to Edward's failure

to testify but to their theory that plaintiff was exaggerating the seriousness of Lisowski' s condition as shown by t he fact that fami ly me

mbers we re not ca lled to his bedside after the procedure. "The scope of closing arg uments is within the trial judge's sound discretion, and an argument must be prejudici al before a review ing court wil l reverse on t his basis ." Velarde v. Illinois Central R.R. Co. , 354 Ill. App. 3d 523, 543, 820 N.E.2d 37 (2004). An attorney may respond to comments by opposing counsel that clearly

invite a response. Kliner , 185 Ill. 2d at 154. See Tzys tuck v. Chi cago T ransit Au thority, 124 Ill. 2d 226, 243, 529 N.E.2d 525 (1988) (a new trial is warranted only where the error affe cted the outcome). A minor misstatement in a closing argument should not be reg arded as error. People v. Alexander , 127 Ill. App. 3d 1007, 1016, 470 N.E.2d 1071 (1984). Here, d efense counsel' s challe

nge to the seriou sness of L isowski' s condition was a permissib le response t o plainti ff's statement that "[Lisowsk i] almos t died twi ce in the hos pital." Defense counsel's misstatement that Lisowski died of one type of he art problem when in fact he died of a different heart problem was minor a nd harmless to plaintiff. The next issue is whether the trial court erred in failing to direc t a verdict on the question of informed consent. Plaintiff argues that the jury 's verdict was against the manife st weight of1-07-0076

21

the evidence. She claims the evidence shows L isowski most likely would not have consented because he hated hospitals, he was sedated whe n he allegedly

consented and Brofman admitted he "did not explicitly indicate" to L isowski that a liver laceration and diaphragm punctur e were risks. A verdict should be directe d "only

in those c ases in wh

ich all of the evide nce, *** in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evi dence could ev er stand." Pedrick v. Peoria & Eastern R.R. Co. , 37 I ll. 2d 494, 510, 229 N.E.2d 504 (1967). The standard of review for the denial of a motion for directe d verdict is de novo

. Evans v. Shannon , 201 Ill. 2d 424, 427, 776 N.E.2d 1184 (2002). "In an informed c onsent action, a plaintiff must point to significant undisclosed informati on relating t o the treatm ent which wo uld have alt ered her decisi on to undergo i t." Schiff v. Friberg , 331 I ll. App. 3d 643, 657, 7 71 N.E.2d

517 (2002 ). "[I ]t is for the jury to decide if any

alleged undisclosed information would have altered the p laintiff's d ecision." Schiff , 331 I ll. App. 3d

at 657. " If the disclos

ure woul d not have

chang ed the de cision of

a reasonable person in the position of the plaintiff, there is no causal connection between nondisc losure and her postoperative condition; if, however, disclosure would have c aused a reasonable person in the positio n of the pati ent to refuse the surgery or therapy, a causal conn ection is s hown." Schiff , 331 Ill. App. 3d at 657. See also Cory ell v. Smith , 274 Ill. App. 3d 543, 550, 653 N.E.2d 1317 (1995) ( the quest ion of pro ximate cau se in an informed c onsent context requ ires the j ury

to use their knowledge, experience and common sense to decide whether, after proper disc losure, a prudent person would have proceeded with the propose d treatment).1-07-0076

22

Both par ties clai m Ziegert v. South Chicago Community Hospital , 99 Ill. App. 3d 83, 92, 425 N.E.2d 450 (1981), supports their positions. There, the plaintiff alleged medica l malpractice against a doctor and hospital after her surgery . Ziegert , 99 Ill. App. 3d at 84. The plaintiff admitted on cross-examination that she read and signed a surg ery conse nt form. Ziegert , 99 I ll. App. 3d at 90. The jury r eturned a general ver

dict for the defendant. Ziegert , 99 Ill. App. 3d at 84. The plaintiff appealed, arguing that she was entitled to a directed verdict or a judg ment notwithstanding the verdict on the question of informed consent. Ziegert , 99 Ill. App. 3d at 92. Noting the absenc e of exper t testimony

that the f ailure to warn a s urger y pa tient of a possible pulmonary embolism was a devia tion from the standard of care, this court adopted the standar d of proof of informed consent in Green v. Hussey , 127 Ill. App. 2d 174, 184-85, 262 N.E.2d 156 (1970): “ '[T]o establish liability for defenda nts' failure to inform plaintiff of the forese eable r

isks or re sults involv ed in [the tr eatment] a

nd availa ble alter natives, if any, plaintiff had the

burden of proving by

expert medical evidence that the reasonable medical practitioner of the same school, in the same or similar circumstances, would have told the patient of such risks, or that the disclosures as made by the de fendants did not meet the standard of what a reasona ble medical practitioner would have disclosed under the same or similar circ umstances. [Citation.] Also, plaintiff had the burden of proving by expert medica l testimony that such failure was the proximate cause of her dama ge.' ” Ziegert , 99 Ill. App. 3d at 92.1-07-0076

23

Plaintiff argue s that Br

ofman' s stateme

nt—"[i]t is qu

ite likely that I did not explic itly indicate that those were the risks"—is proof under Ziegert that Brofman failed to conform to the professional standard for disclosure of risks. Defe ndants maintain plaintiff did not prove Brofman failed to obtain informed consent where Brofman merely

acknowledged that additional words co uld have b een used . Defen dants ar gue tha t becaus e it was the provinc e of the j ury to weigh the evidence, it would have bee n error for the court to direct a ver dict in plaintiff's favor on the issue of informed con sent. Here, Brofman testified he did not explicitly mention the possibility of injuring the liver or diaphragm but he did tell Lisowksi there was a risk that he could "hit something I don't want to hit and cause bleeding." Brof man testified that Lisowski was alert and cohe rent when he

consente d to the pr

ocedure . Warren

testifie d that it wa s a devia tion from t

he standa rd of ca re to obtain consent while Lisowski was sedated, but he a dmitted he did not know Lisowski's mental state at the time consent was given. Where, as her e, there is conflicting evidence, it is the province of the jury

to resolve the conflicts. See Maple , 151 Ill. 2d at 452. The jury 's conclusion for defendants on the issue of informed consent was not against the manifest weight of the evidence. See Maple , 151 Ill. 2d at 454. The trial court did not err in re fusing to direct a verdict on informed consent. The final question is whether the trial court erred in bar ring Warren's opinions that Lisowski was depressed and suicida l after the procedure. The trial cour t determined that plaintiff had not dis closed th

is informa

tion in her

answer s to defe

ndants'interrogatories u

nder Supr eme Court Rule 213(f)(3) (210 Ill. 2d R. 213(f)( 3)). This rule requires the disclosure of the content1-07-0076

24

and bases of controlled experts' conclusions and opinions. 210 Ill. 2d R. 213(f)(3). Plaintiff argues that because she disclosed tha t Warren had reviewed the deposition of Dr. Emelita Co, Lisowski's treating phy

sician from 1991 until shortly before his death, and that Co's deposition mentioned his depression and suicidal thoughts, that Warren's testimony that Lisowski was depressed after the procedure at issue would be a logical corollary of Warren's disclosed opinions. Pl aintiff c ites Barton v. Chicago & North Western Tr ansportation Co. , 325 Ill. App. 3d 1005, 1039, 757 N.E.2d 533 (2001), for the proposition that a witness may elaborate on a disclosed opinion as long as the testimony state s logical corollaries to the opinion, rather than new reasons for it. Defendants argue that nowher e in plaintiff's Rule 213 answers does the word "de pression" or "suicide" appear. The

y deny that the phrase "and all of the other problems that re sulted" placed them on notice that Warren would state that Lisowski became depressed and suicidal after the procedure. Supreme Court Rule 213(f)(3) requires a party to provide information about a controlled expert witness, including: "(i) the subject matter on which the witness will testify ; (ii) the conclusions and opinions of the witness and the bases therefor; (iii) the qualifica tions of the witness; and (iv) any r

eports prepared by

the witness about the case." 210 I ll. 2d R. 213(f)(3). "The Rule 213 disclosure requirements are manda tory and subject to strict complianc e by the parties." Sullivan v. Edward Hospital , 209 Ill. 2d 100, 109, 806 N.E.2d 645 (2004). Disclosures must be specific. Sullivan , 209 Ill. 2d at 109. Here, p laintiff

admits tha

t the topic s "depr

ession" and "sui cide" were nev er mentioned in1-07-0076

25

her di sclos ures o n Warr en. Th e catch all ph ase "al l of th e othe r prob lems" is no t spec ific e nough to meet the strict requirements of Rule 213 under Sullivan . The tria l court did

not abuse

its discretion in barring Warren from testify ing that Lisowski became suicida l and depressed. We conclude that the trial court erred in gra nting plaintiff's motion for a new trial for these re asons: (1 ) the jury 's verd ict on the claim of neglig ence wa s not aga inst the ma

nifest weight of the ev idence; (2) the ju

ry 's verd ict on informed con sent was n ot agai nst the man

ifest weight of the evidence; and (3) the tr ial court did not err during the trial in its rulings on: (a) jury instructions; (b) closing arguments; (c) plaintiff' s request to reopen the case; (d) plaintiff' s motion for a dir ected ve rdict; an d (e) Dr . Warren 's undisc losed opin ions. This c onclusion

defeat s plaintiff's claim that cumulative errors warra nted a new trial. See People v. Caffey , 205 Ill. 2d 52, 118, 79 7 N.E.2d 1 163 (2001 ) (wher e a revi ewing c ourt find s that no e rror oc curred , a party

is not entitled to a new trial on the basis of cumulative error). We reverse the judgment of the trial court for a new trial and order the jury verdict reinstated. Reverse d and remanded wi th direc tions. WOLFSON and GARCI

A, JJ., concur.