FIRST DIVISION

March 24, 2008

No. 1-07-0076

JEAN LISOWSKI, Indiv. and as the Special Adm'r of the

Estate of Edward A. Lisowski, Deceased,

Plaintiff-Appellee,

v.

MacNEAL MEMORIAL HOSPITAL ASSOCIATION and

JOHN D. BROFMAN, 

Defendants-Appellants.

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Appeal from

the Circuit Court

of Cook County

No. 03 L 2903

 

Honorable

John B. Grogan, 

Judge Presiding.

PRESIDING JUSTICE CAHILL delivered the opinion of the court:

Defendants MacNeal Memorial Hospital Association and John D. Brofman, M.D., appeal

an order granting plaintiff Jean Lisowski's motion for a new trial. Plaintiff brought a negligence

action against defendants after the death of her husband, Edward A. Lisowski (Lisowski). A jury

returned a verdict for defendants. 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

Instructions, Civil, No. 5.01 (2006) (hereinafter IPI Civil (2006) No. 5.01)) after defendants

failed to produce their expert witness. We reverse and direct the trial court to reinstate the jury’s

verdict.

Plaintiff alleged in her complaint that Lisowski suffered years of ill health before his
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death because of defendants' negligence. She alleged Brofman was negligent in performing a

thoracentesis to drain fluid from Lisowski's lungs through a chest tube on November 6, 1996. 

She also alleged Brofman failed to obtain Lisowski’s consent to the procedure. Plaintiff alleged

MacNeal Hospital was liable under an agency theory. During the procedure, Lisowski’s

diaphragm and liver were lacerated. He required emergency surgery and intensive care. He was

released from the hospital 10 days after the procedure. He died three years 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 Court Rule 213(f)(3) (210 Ill. 2d R. 213(f)(3)). Defendants said Hall, a pulmonologist

and critical care specialist, would state that Brofman'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 care. 

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 depression and suicidal tendencies because of Brofman’s negligence. Plaintiff

also disclosed Edward Allen Lisowski (Edward), the couple’s son, who plaintiff said would

testify to family hardships attributable to Brofman's negligence. Three months before the trial,

plaintiff's counsel sent a letter to defense counsel, asking to add Hall as a plaintiff's witness if

defendants intended to abandon him. Defense counsel responded by letter, stating defendants
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had not abandoned Hall. 

In opening statements, plaintiff's counsel told the jury that Hall would testify and state

that Brofman deviated from the standard of care by inserting the chest tube at the wrong location

and in the wrong direction. Defense counsel 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 ILCS 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 training from Hall when he was a medical student. Brofman denied

having “independent knowledge” of Hall's alleged opinion that Brofman deviated from the

standard of care in treating Lisowski. 

Plaintiff’s expert Dr. Warren said he reviewed the medical records from the procedure,

the depositions of the treating physicians, a 1999 electrocardiogram report and an autopsy report

in forming his opinions. Warren said Brofman deviated from the standard of care in obtaining

consent while Lisowski was sedated and in the way he performed the thoracentesis. Warren

admitted on cross-examination that he did not know how Lisowski reacted to sedation or his

mental capacity at the time he allegedly consented. Warren said obtaining consent after as little

as one-tenth of a milligram of the sedative would be a deviation from the standard of care. The

trial court barred Warren from testifying that Lisowski was depressed and suicidal after the

procedure because plaintiff failed to disclose these opinions in discovery.

Defendants called Brofman in their case in chief. He testified, "I believe that the

anatomical landmarks I chose and the techniques I chose and the care with which the tube was
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inserted all complied very much with the standard of care." The following took place in the

jury’s presence during cross-examination of Brofman by plaintiff's counsel:

"Q. [(by plaintiff's counsel)] *** [Y]ou said you did [your training in]

pulmonary critical care at the University of Chicago, correct?

A. [(Brofman)] Yes.

Q. And that in fact was under Dr. Jesse Hall, the expert that your counsel

has retained in this case, correct?

A. *** Dr. Hall was part of the faculty at the time I was there, yes.

Q. So you were actually studying under Dr. Jesse Hall, correct?

A. Dr. Hall was part of the faculty and was involved in my training.

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 you 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. BASILE [(plaintiff's counsel)]: 

Q. Do you have any problems with him testifying to that, or are you going

to have a problem with qualifications?

MS. STEVENSON: Same objection ***.

THE COURT: That would be sustained.
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***

THE COURT: I will let him answer that question. That puts the burden

on you [(plaintiff)] to bring him in.

A. [(by Brofman)]: Dr. Hall is certainly free 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 negligence. 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], failure to call a witness. I take it you're referring to Jesse Hall?

MS. STEVENSON [(defendants’ counsel)]: My objection is that the

plaintiff shifted the burden of proof *** by putting in statements which defense

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

about what this expert was going to say.

[Hall] is currently unavailable this afternoon because of surgical and other

issues and I could not bring him in today, but I told you this morning that if that

was the case, we were ready to proceed and close without him.

MR. BASILE: *** [B]ack in February of 2006[,] I sent a letter to defense

counsel telling her that I wanted to call Dr. Hall as one of my witnesses. I also

wanted to amend my [Rule 213 disclosures]. 
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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 standard of care. Even until now, and the Court is aware, defense

counsel has indicated that Jesse Hall would be here to testify.

* * *

THE COURT: If you [(plaintiff's counsel)] had stopped with violating the

standard of care, you would have been within appropriate bounds for crossexamination ***. I would have allowed that without any question and may very

well have given this instruction.

However, when you indicated to that jury that [the] doctor would testify,

you then brought it upon yourself to produce that 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. BASILE [(plaintiff's counsel)]: So the record is clear also, the

witness at this point has not been abandoned by the defense counsel, and I would

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

could reopen our case and call him as another witness or a rebuttal witness.
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THE COURT: If you issued a subpoena, you could have brought him in. 

MS. STEVENSON: He hasn't issued a subpoena .

MR. BASILE: I couldn't. *** [Defense counsel] said [defendants were]

not abandoning [Hall], he's still under [defendants'] control. I can't issue a

subpoena today because [defense counsel] still hasn't abandoned him as far as the

record goes.

At this point, if [defense counsel is] going to stipulate for the record she's

abandoned him, I'd like the opportunity to call him in as a rebuttal witness.

MS. STEVENSON: Your honor, I haven't abandoned him, he's not

available. I have a right to make a legal determination whether to proceed with

this case as is or try to continue the case when [Hall] is available. ***

***

MR. BASILE: I would ask that we have a short continuance and see if we

can get him in here tomorrow morning ***.

THE COURT: I have no reason to continue this further. I'm going to

proceed at this time.

*** The instruction [5.01] is refused." 

In closing arguments, plaintiff's counsel said Brofman's conduct caused serious injury to

Lisowski. Counsel argued that defendants 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 whether Brofman inserted the chest tube
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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 arguments that Lisowski died of congestive heart failure. 

As noted, Lisowski died of ventricular fibrillation but it is undisputed that he suffered from

congestive heart failure before his death. Defense counsel argued that plaintiff's exaggeration of

the seriousness of her husband's condition after the procedure was contradicted by the fact that

family members were not called to Lisowski's bedside after the procedure and that the couple's

son Edward did not testify at the trial. 

The trial court instructed the jury that it was plaintiff's burden to prove defendants acted

or failed to act in one of the ways claimed by plaintiff, that plaintiff was injured and that

defendants’ negligence proximately caused plaintiff’s injury. The trial judge then told the jury:

"[T]here was some evidence concerning a Dr. Jesse Hall. You are to disregard any reference of

what was alleged concerning Dr. Jesse Hall."

The jury returned a verdict in defendants' favor.

Plaintiff moved for a new trial. Defendants in their response to plaintiff's motion said

Hall's medical practice and travel out-of-town prevented him from appearing during the trial. 

Defendants said Hall would not have been available until two days after the trial ended. 

After a hearing, the trial court granted plaintiff's motion for a new trial in the following

written order, stating in its entirety:

"This matter coming to be heard on plaintiff's motion to vacate judgment

and for new trial; the judge having read the briefs [and] heard argument, [i]t is
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hereby ordered: (1) The judgment of May 9, 2006, is hereby vacated and the

matter is set for [retrial] on March 21, 2007 at 9:30 in [Room] 2407 [without]

further notice." 

There was no written statement of the reasons for the ruling. See Turner v. Commonwealth

Edison Co., 35 Ill. App. 3d 331, 333, 341 N.E.2d 488 (1976) ("When a new trial is granted a

concise statement of findings or reasons should be incorporated into the record by the trial judge

so that the reviewing court may know what prompted his action"). Nor can we ascertain the

judge's reasons from a transcript of the hearing because there is none in the record. 

As a threshold matter, plaintiff argues that we must affirm the order for a new trial 

because defendants violated Supreme Court Rule 323(a) (210 Ill. 2d R. 323(a)) in failing 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 Hall; and (3) a transcript of the hearing

on plaintiff's motion for a new trial. 

 Rule 323(a) provides: “The report of proceedings 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 were supported by the

evidence.” Adams v. Sarah Bush Lincoln Health Center, 369 Ill. App. 3d 988, 997, 874 N.E.2d

100 (2007). In general, the burden is on the appellant to present a satisfactory record. Foutch v.

O'Bryant, 99 Ill. 2d 389, 391-92, 459 N.E.2d 958 (1984). But a reviewing court may consider an

appeal despite deficiencies in the record 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.2d
1-07-0076

10

386 (2006). Doubts arising from the incompleteness of the record will be resolved in favor of the

appellee. Foutch, 99 Ill. 2d at 392.

 Here, the material pertinent to this appeal appears 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 review. See Senderak v. Mitchell, 282 Ill. App. 3d 881, 886, 668

N.E.2d 1041 (1996) (where the court does not state its reasons for granting a new trial, we look

to the posttrial motions and assume the errors stated there prompted the order). Accord

Rodriguez v. Chicago Transit Authority, 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 court abused its discretion in granting a new trial

because the jury's verdict was not against the manifest weight of the evidence. Plaintiff argues

that this court must defer to the trial court because the judge there was in a better position to

observe the trial and recognize errors. 

A new trial is proper if the verdict was against the manifest weight of the evidence. 

Maple v. Gustafson, 151 Ill. 2d 445, 454, 603 N.E.2d 508 (1992). A verdict is against the

manifest weight of the evidence where the opposite conclusion was evident or the verdict was

unreasonable or arbitrary and not based on the evidence. Maple, 151 Ill. 2d at 454. The jury's

role is: (1) to resolve conflicts in the evidence; (2) to determine the credibility of witnesses; and

(3) to decide the weight to be given each witness's testimony. Maple, 151 Ill. 2d at 452. After

the jury reaches a verdict, the trial court must not reweigh the evidence or interfere with a verdict
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merely because 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 trial was fair and the evidence

did not favor either side. Maple, 151 Ill. 2d at 452-53. We will reverse an order for a new trial

only if the trial court abused its discretion. Maple, 151 Ill. 2d at 454. A court abuses its

discretion when it grants a new trial despite sufficient 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 standard of

care and a causal connection between the deviation and the injury. Simmons v. Garces, 198 Ill.

2d 541, 556, 763 N.E.2d 720 (2002). "[P]roximate cause must be established by expert

testimony to a reasonable degree of medical certainty." Simmons, 198 Ill. 2d at 556. Where the

medical expert testimony of the causal 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 conflicted. Brofman, who testified over a

two-day period as plaintiff's adverse witness, on direct examination by defendants and on crossexamination by plaintiff denied deviating from the standard of care of a pulmonologist

performing a thoracentesis. Warren, a thoracic surgeon and not a pulmonologist, said his review

of documents showed Brofman deviated from a pulmonologist's standard of care. It was the

jury's role to resolve these conflicts, assess the credibility of Brofman and Warren and determine

the weight to be given to each doctor's testimony. See Maple, 151 Ill. 2d at 452. The jury

resolved these matter in defendants' favor. This conclusion was not arbitrary or unreasonable in
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light of the conflicting evidence before 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 rendered the trial unfair. Plaintiff cites Tonarelli v. Gibbons, 121 Ill. App. 3d 1042, 1048,

460 N.E.2d 464 (1984), to argue that a new trial is required where the accumulation of

evidentiary and instructional errors causes prejudice. 

A new trial should be granted where the trial court's rulings in the course of the trial result 

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 reinstate the jury's verdict

where errors were insubstantial, not prejudicial to the movant or insufficient to justify a new trial. 

Lagoni v. Holiday Inn Midway, 262 Ill. App. 3d 1020, 1038, 635 N.E.2d 622 (1994). “The mere

fact that multiple errors are present does not in and of itself result in prejudicial error.” First

National Bank of La Grange v. Glen Oaks Hospital & Medical 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. Each

question is subject to its own standard of review. Redmond v. Socha, 216 Ill. 2d 622, 633, 837

N.E.2d 883 (2005). We first consider whether the trial court erred in denying plaintiff's request

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 evidence not offered but within the
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control of a party is adverse to that party." First National Bank of La Grange v. Lowrey, 375 Ill.

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. Chicago & North

Western Transportation Co.,129 Ill. 2d 1, 22, 541 N.E.2d 643 (1989).

Defendants argue that IPI Civil (2006) No. 5.01 was properly denied because Hall was

equally available to both parties. Defendants claim they had a reasonable excuse for Hall's

unavailability—his surgery schedule and travel plans. Defendants rely on Chiricosta v.

Winthrop-Breon, 263 Ill. App. 3d 132, 159, 635 N.E.2d 1019 (1994), for the proposition that a

party's request for an instruction should be granted only if she clearly is entitled to it. Defendants

cite Bulger v. Chicago Transit Authority, 345 Ill. App. 3d 103, 121, 801 N.E.2d 1127 (2003), to

argue that a new trial on the basis of jury instructions is appropriate only where "a party's right to

a fair trial has been seriously prejudiced." Bulger, 345 Ill. App. 3d at 121.

Plaintiff argues she was entitled to the missing-witness instruction under the criteria

established by our supreme court in Schaffner, 129 Ill. 2d 1, 541 N.E.2d 643. This instruction

should be given when: (1) the missing witness was under the control of the party adversely

affected by the instruction; (2) the witness could have been produced by reasonable diligence; (3)

the witness was not equally available to the party who requested the instruction; (4) a reasonably

prudent person would have produced the witness if he or she believed the testimony would be

favorable; and (5) there was no reasonable excuse for failing to produce the witness. 

Schaffner,129 Ill. 2d at 22. 

Here, the trial court refused the missing-witness instruction based on its conclusion:
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"Both parties had an obligation to produce the doctor, nobody produced him." An analysis of the

Schaffner factors shows Hall was under defendants' control to the extent that they had named him

as a controlled expert witness, but plaintiff, with reasonable diligence, could have obtained Hall's

appearance by subpoena under Rule 237 (166 Ill. 2d R. 237). This rule provides that the missing 

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 lawful 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, and it requires compliance. Camco, Inc. v. Lowery, 362 Ill. App. 3d 421,

429, 839 N.E.2d 655 (2005), citing 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 been within the defendant’s control and disclosed by the defendant in

discovery. Collier v. Avis Rent A Car System, Inc., 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

believed Hall would discredit Brofman's defense and support her complaint. Whatever Hall said

in his deposition, both parties knew it in 2002. Plaintiff could have mounted the effort to

subpoena Hall in the four years between his deposition and this trial. Although defendants were

obligated to produce Hall, they presented a plausible excuse for his absence on the day his

testimony was expected and notified the court in advance that they were prepared to close

without Hall, if necessary. Based on the criteria stated in Schaffner, the trial court did not abuse

its discretion in refusing to give the missing-witness instruction.
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Plaintiff relies on Bargman v. Economics Laboratory, 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, warranted 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 reasonable excuse was given for failing to call him. 

Bargman, 181 Ill. App. 3d at 1028. In Ciborowski, the defendant's failure to call a witness under

its control warranted the missing-witness instruction despite the fact that the plaintiff could have

subpoenaed the witness. The court relied on C. McCormick, Evidence §249, at 533-34 (1954): 

" ' "When it would be natural under the circumstances for a party to call a particular witness ***

his adversary may use this failure as the basis for invoking an adverse inference ***." ' "

Ciborowski, 110 Ill. App. 3d at 986, quoting Biel v. Wolff, 126 Ill. App. 2d 209, 223, 261 N.E.2d

474 (1970).

In both Bargman and Ciborowski, the court found that the propriety of the missingwitness instruction depends on the circumstances at hand. Bargman, 181 Ill. App. 3d at 1028;

Ciborowski, 110 Ill. App. 3d at 986. Here, the circumstances differ from those in Bargman and

Ciborowski. Defendants here consistently maintained that Hall was in their control but

unavailable to testify at the trial because of his surgery schedule and travel plans. Plaintiff did

not attempt to rebut this excuse. 

The next issue also pertains to jury instructions. Defendants argue that the trial court

correctly instructed the jury to disregard plaintiff's prejudicial references to Hall in her opening
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statement and cross-examination of Brofman. Plaintiff responds that defendants cannot complain

on appeal of plaintiff's references to Hall because they failed to object at trial. 

To preserve an issue for appeal, a party must object at trial and raise the issue in a

posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186-87, 522 N.E.2d 1124 (1988). An issue is

preserved for review where 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 transcript here

shows defense counsel objected during cross-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 again raised the issue of plaintiff's prejudicial references to Hall in their written

response to plaintiff's motion for a new trial. Defendants' 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 statement and cross-examination of Brofman further supports the conclusion 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 draw 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 Ill.

App. 3d 883, 891, 460 N.E.2d 402 (1984). The missing-witness instruction should not be given

where, as here, prejudicial references to the missing witness were made during 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 called, would have admitted the alleged facts. 

Bartimus v. Paxton Community Hospital, 120 Ill. App. 3d 1060, 1064, 458 N.E.2d 1072 (1983). 
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Where a party has injected error into the proceedings it is "manifestly unfair" for that party to be

granted a new trial. See McMath v. Katholi, 191 Ill. 2d 251, 255, 730 N.E.2d 1 (2000). For all

of these reasons, plaintiff's references 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 references to Hall. Defendants claim the

instruction was needed to cure plaintiff's introduction of inadmissible evidence, including: (1)

hearsay evidence that Hall said Brofman breached the standard of care; (2) cross-examination of

Brofman that exceeded the scope of direct; and (3) improper impeachment with an impermissible

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 disregard improper evidence, such as

hearsay. People v. Rice, 234 Ill. App. 3d 12, 22, 599 N.E.2d 1253 (1992). In general, crossexamination cannot exceed the scope of direct examination. Anderson v. Human Rights

Comm'n, 314 Ill. App. 3d 35, 44, 731 N.E.2d 371 (2000). Although a party is not entitled 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

Chicago, 168 Ill. 2d 83, 96, 658 N.E.2d 450 (1995)). The cross-examining party may use facts in

evidence that conform to her theory of the case. Leonardi, 168 Ill. 2d at 96. "It is within the

sound discretion of the trial court to allow a hypothetical question, although the supporting

evidence has not already been adduced, if the interrogating counsel gives assurance it will be
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produced and connected later." Leonardi, 168 Ill. 2d at 96. "Evidence admitted upon an

assurance that it will later be connected up should be excluded upon failure to establish the

connection." Leonardi, 168 Ill. 2d at 96. 

Here, the trial court properly instructed the jury to disregard plaintiff's reference to Hall

on cross-examination of Brofman. Plaintiff's question, "when Dr. Hall comes in here later today

and tells us that you violated the standard of care," was not stated as a hypothetical but as a fact. 

As such, the question was improper as hearsay and as cross-examination beyond the scope of

direct examination. But even if the question were a proper hypothetical, the trial court correctly

instructed the jury to disregard the references after plaintiff failed to produce Hall and connect

the hypothetical to admissible evidence. See Leonardi, 168 Ill. 2d at 96. 

The next issue is whether the trial court erred in barring plaintiff from reopening her case

or calling Hall as a rebuttal witness. A court's ruling on a party's request to reopen her case to

present additional evidence will not be disturbed absent an abuse of discretion. In re Estate of

Doyle, 362 Ill. App. 3d 293, 301-02, 838 N.E.2d 355 (2005). A court abuses its discretion where

its decision is arbitrary, fanciful or unreasonable, or when no reasonable person would take the

same view. People v. Illgen, 145 Ill. 2d 353, 364, 583 N.E.2d 515 (1991).

Plaintiff argues that the trial court should have allowed her to reopen her case because

defendants' unfair trial strategy prevented the jury from hearing Hall's damaging testimony. She

cites Hollembaek v. Dominick's Finer Foods, Inc., 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 purpose of clarifying the record on "an evidentiary matter of utmost importance in
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plaintiff's case." Hollembaek,137 Ill. App. 3d at 778. The court noted the factors to be

considered in deciding whether to reopen proofs. Hollembaek, 137 Ill. App. 3d at 778, citing

Crothers v. La Salle Institute, 68 Ill. 2d 399, 370 N.E.2d 213 (1977). "[A] trial court should take

into account various factors, including the existence of an excuse for the failure to introduce the

evidence at trial, e.g., whether it was inadvertence or calculated risk; whether the adverse party

will be surprised or unfairly prejudiced by the new evidence; whether the evidence is of utmost

importance to the movant's case; and whether there are the most cogent reasons 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 request here

to reopen her case. Plaintiff offered no reasonable excuse for failing to subpoena Hall, other than

her contention that Hall remained under defendants' 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 Ill. App. 3d at 429; Collier, 248 Ill. App. 3d at 1100. It was plaintiff's burden to

present evidence proving Brofman's negligence, not defendants' burden to disprove it. See Blue

v. Environmental Engineering, Inc., 215 Ill. 2d 78, 98, 828 N.E.2d 1128 (2005) ("the burden of

proof remains on the plaintiff throughout the proceedings to prove all of the elements of

negligence"). The trial court did not abuse its discretion in denying plaintiff's request to reopen

proofs. See Illgen, 145 Ill. 2d at 364. 

The next issue is whether the trial court erred in allowing defense counsel's closing

comments on: (1) Lisowski's son Edward's failure to testify at the trial; and (2) congestive heart

failure as Lisowski's cause of death when the actual cause was ventricular fibrillation. 
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Defendants claim their arguments were proper when considered in context, citing People v.

Kliner, 185 Ill. 2d 81, 157, 729 N.E.2d 20 (2000) (a reviewing court must examine closing

remarks in the context of the entire proceeding). They argue that plaintiff misconstrues the

comment, "we didn't hear from the family 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 the fact that family members were not called to

his bedside after the procedure.

"The scope of closing arguments is within the trial judge's sound discretion, and an

argument must be prejudicial before a reviewing court will reverse on this 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 Tzystuck v. Chicago Transit Authority, 124 Ill. 2d 226, 243, 529 N.E.2d 525 (1988) (a

new trial is warranted only where the error affected the outcome). A minor misstatement in a

closing argument should not be regarded as error. People v. Alexander, 127 Ill. App. 3d 1007,

1016, 470 N.E.2d 1071 (1984). 

Here, defense counsel's challenge to the seriousness of Lisowski's condition was a

permissible response to plaintiff's statement that "[Lisowski] almost died twice in the hospital." 

Defense counsel's misstatement that Lisowski died of one type of heart problem when in fact he

died of a different heart problem was minor and harmless to plaintiff. 

The next issue is whether the trial court erred in failing to direct a verdict on the question

of informed consent. Plaintiff argues that the jury's verdict was against the manifest weight of
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the evidence. She claims the evidence shows Lisowski most likely would not have consented

because he hated hospitals, he was sedated when he allegedly consented and Brofman admitted

he "did not explicitly indicate" to Lisowski that a liver laceration and diaphragm puncture were

risks. 

A verdict should be directed "only in those cases in which all of the evidence, *** in its

aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary

verdict based on that evidence could ever stand." Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.

2d 494, 510, 229 N.E.2d 504 (1967). The standard of review for the denial of a motion for

directed verdict is de novo. Evans v. Shannon, 201 Ill. 2d 424, 427, 776 N.E.2d 1184 (2002). 

"In an informed consent action, a plaintiff must point to significant undisclosed

information relating to the treatment which would have altered her decision to undergo it." 

Schiff v. Friberg, 331 Ill. App. 3d 643, 657, 771 N.E.2d 517 (2002). "[I]t is for the jury to

decide if any alleged undisclosed information would have altered the plaintiff's decision." Schiff,

331 Ill. App. 3d at 657. "If the disclosure would not have changed the decision of a reasonable

person in the position of the plaintiff, there is no causal connection between nondisclosure and

her postoperative condition; if, however, disclosure would have caused a reasonable person in the

position of the patient to refuse the surgery or therapy, a causal connection is shown." Schiff,

331 Ill. App. 3d at 657. See also Coryell v. Smith, 274 Ill. App. 3d 543, 550, 653 N.E.2d 1317

(1995) (the question of proximate cause in an informed consent context requires the jury to use

their knowledge, experience and common sense to decide whether, after proper disclosure, a

prudent person would have proceeded with the proposed treatment). 
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Both parties claim 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 medical 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 surgery consent form. Ziegert, 99 Ill.

App. 3d at 90. The jury returned a general verdict for the defendant. Ziegert, 99 Ill. App. 3d at

84. The plaintiff appealed, arguing that she was entitled to a directed verdict or a judgment

notwithstanding the verdict on the question of informed consent. Ziegert, 99 Ill. App. 3d at 92. 

Noting the absence of expert testimony that the failure to warn a surgery patient of a possible

pulmonary embolism was a deviation from the standard of care, this court adopted the standard

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 defendants' failure to inform plaintiff of the

foreseeable risks or results involved in [the treatment] and available alternatives,

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 defendants did not meet the standard of what a reasonable medical

practitioner would have disclosed under the same or similar circumstances. 

[Citation.] Also, plaintiff had the burden of proving by expert medical testimony

that such failure was the proximate cause of her damage.' ” Ziegert, 99 Ill. App.

3d at 92.
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Plaintiff argues that Brofman's statement—"[i]t is quite likely that I did not explicitly

indicate that those were the risks"—is proof under Ziegert that Brofman failed to conform to the

professional standard for disclosure of risks. Defendants maintain plaintiff did not prove

Brofman failed to obtain informed consent where Brofman merely acknowledged that additional

words could have been used. Defendants argue that because it was the province of the jury to

weigh the evidence, it would have been error for the court to direct a verdict in plaintiff's favor

on the issue of informed consent.

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." Brofman testified that Lisowski was alert and coherent when he

consented to the procedure. Warren testified that it was a deviation from the standard of care to

obtain consent while Lisowski was sedated, but he admitted he did not know Lisowski's mental

state at the time consent was given. Where, as here, 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 refusing to direct a verdict

on informed consent. 

The final question is whether the trial court erred in barring Warren's opinions that

Lisowski was depressed and suicidal after the procedure. The trial court determined that plaintiff

had not disclosed this information in her answers to defendants' interrogatories under Supreme

Court Rule 213(f)(3) (210 Ill. 2d R. 213(f)(3)). This rule requires the disclosure of the content
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and bases of controlled experts' conclusions and opinions. 210 Ill. 2d R. 213(f)(3). Plaintiff

argues that because she disclosed that Warren had reviewed the deposition of Dr. Emelita Co,

Lisowski's treating physician 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. Plaintiff cites Barton v. Chicago & North Western Transportation 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 states logical corollaries to the opinion, rather than

new reasons for it. 

Defendants argue that nowhere in plaintiff's Rule 213 answers does the word "depression"

or "suicide" appear. They deny that the phrase "and all of the other problems that resulted"

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 qualifications of the

witness; and (iv) any reports prepared by the witness about the case." 210 Ill. 2d R. 213(f)(3). 

"The Rule 213 disclosure requirements are mandatory and subject to strict compliance 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, plaintiff admits that the topics "depression" and "suicide" were never mentioned in
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her disclosures on Warren. The catchall phase "all of the other problems" is not specific enough

to meet the strict requirements of Rule 213 under Sullivan. The trial court did not abuse its

discretion in barring Warren from testifying that Lisowski became suicidal and depressed.

We conclude that the trial court erred in granting plaintiff's motion for a new trial for

these reasons: (1) the jury's verdict on the claim of negligence was not against the manifest

weight of the evidence; (2) the jury's verdict on informed consent was not against the manifest

weight of the evidence; and (3) the trial 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 directed verdict; and (e) Dr. Warren's undisclosed opinions. This conclusion defeats

plaintiff's claim that cumulative errors warranted a new trial. See People v. Caffey, 205 Ill. 2d

52, 118, 797 N.E.2d 1163 (2001) (where a reviewing court finds that no error occurred, 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.

Reversed and remanded with directions.

WOLFSON and GARCIA, JJ., concur.