Cancio v. White

First Division
June 8, 1998

No. 1-96-3489

CARLOS CANCIO and ) Appeal from the
PATRICIA CANCIO ) Circuit Court
) of Cook County.
Plaintiffs-Appellants, )
)
v. )
)
THOMAS J. WHITE, ) Honorable
) MICHAEL J. KELLY,
Defendant-Appellee. ) Judge Presiding.

PRESIDING JUSTICE BUCKLEY delivered the opinion of the

court:

Plaintiffs Carlos and Patricia Cancio brought an action to
recover damages allegedly caused by the negligence of defendant
Thomas J. White while driving an automobile. On August 24, 1994,
after a jury trial, the jury returned a verdict in favor of
plaintiffs and judgment was entered on the verdict on August 29,
1994. On January 31, 1995, the trial court granted plaintiffs'
motion for a new trial on the issue of damages only. On December
12, 1995, the case was tried a second time before a jury. The
jury returned a verdict in favor of defendant and judgment was
entered on the verdict on December 14, 1995. Plaintiffs again
filed a motion for a new trial, which was denied on September 3,
1996. Plaintiffs filed a timely notice of appeal and raise the
following issues: (1) whether the trial court properly denied
plaintiffs' proposed modified jury instruction; (2) whether the
trial court properly allowed introduction of evidence that Carlos
Cancio had arthritis; (3) whether defense counsel's questioning
of Carlos Cancio regarding a conversation with his attorney was
proper; (4) whether the trial court properly admitted photos of
plaintiffs' vehicle; (5) whether defense counsel violated the
trial court's order in limine; and (6) whether defense counsel's
closing argument was proper.
On December 14, 1988, while Carlos Cancio was stopped at a
stop sign, defendant's automobile struck Carlos Cancio's mini-van
in the left front. On November 20, 1990, Carlos Cancio filed a
complaint which alleged that he suffered bodily injury as a
result of the accident and that Patricia Cancio suffered loss of
consortium.
A jury trial was held on August 24, 1994. At the trial, the
only witnesses were Carlos and Patricia Cancio and Dr. John Shea,
a neurosurgeon. Dr. Shea testified that Carlos Cancio suffered a
herniated disk as a result of the accident. Plaintiffs submitted
medical bills and testified to the effect of the injury on their
lives. The jury found for plaintiffs on the issue of liability.
It awarded Carlos Cancio $3,500 for his medical expenses; $2,100
for past and future pain and suffering; and $2,800 for past and
future disability. It awarded Patricia Cancio $0 for both the
value of her husband's services and the loss of his society.
Plaintiffs filed a post-trial motion seeking a new trial on
the issue of damages. The trial court granted the motion and on
December 12, 1995, the retrial on the issue of damages commenced.
Once again, both Carlos and Patricia Cancio testified as to
Carlos' neck injury. They also testified that Carlos had no
prior neck problems. The testimony of Dr. Shea was presented by
way of the same evidence deposition used in the first trial.
Defendant testified as both an adverse witness and in defendant's
case in chief. After closing arguments but before the verdict
was rendered, plaintiffs moved for a mistrial. The motion was
denied. The jury returned a verdict for defendant on December
14, 1995. Plaintiff filed a motion for a new trial and it was
denied. This appeal followed.
A. PROOF OF INJURY AND PROXIMATE CAUSE
Plaintiffs' first contention is that the trial court erred
in refusing to allow plaintiffs' proposed jury instruction and in
requiring plaintiffs to prove both injury and proximate cause at
the second trial.
1. Jury Instruction
During the December 1995 retrial, plaintiffs submitted the
following jury instruction:
"It has been determined that the Defendant is
liable for any injury which may have proximately
resulted from the occurrence. You need only
decide what injuries to Plaintiff resulted from
this occurrence and what amount of money will
reasonably and fairly compensate the Plaintiff for
those injuries."
This is a modified version of Illinois Pattern Jury Instructions,
Civil, No. 23.01 (3d ed. 1995)(hereinafter IPI Civil 3d No.
23.01). The first sentence of the unmodified instruction reads
as follows: "The defendant has admitted liability for any
[injury][damages] which may have proximately resulted from the
occurrence." IPI Civil 3d No. 23.01.
Plaintiffs did not cite any cases that hold that the refusal
of the trial court to allow IPI Civil 3d No. 23.01 constitutes
reversible error. Nevertheless, we conclude that in cases such
as the one at bar, where the liability of the defendant has
previously been determined and the plaintiff proposes the above
modified version of IPI Civil 3d No. 23.01, it is error for the
trial court to refuse the instruction.
2. Proof of Injury and Proximate Cause
Plaintiffs also argue that they should not have been
required to relitigate the issues of injury and proximate cause
and, in support of this argument, cite Fisher v. Patel, 93 Ill.
App. 3d 694 (1981), and Exchange National Bank v. Air Illinois,
Inc., 167 Ill. App. 3d 1081, 1090 (1988). Neither case is
directly on point. In Fisher, plaintiff brought suit to recover
for injuries sustained when the car in which she was riding was
struck from behind by defendant. Fisher, 93 Ill. App. 3d at 694.
The jury was instructed that if it found from the evidence that
plaintiff was not injured and/or that the conduct of defendant
was the proximate cause of plaintiff's injury, the verdict should
be for the defendant by reflecting zero damages to the plaintiff.
Fisher, 93 Ill. App. 3d at 696. The jury found defendant liable
but awarded zero damages to plaintiff. Fisher, 93 Ill. App. 3d
at 696. The issue before the appellate court was the propriety
of the zero verdict jury instruction. The court found that since
plaintiff's evidence was not inconsistent or contradictory, and
proof of actual damages was corroborated by witnesses' testimony,
the giving of a zero verdict instruction resulted in error that
was substantially prejudicial and affected the outcome of the
trial and, therefore, reversal was warranted. Fisher, 93 Ill.
App. 3d at 697. The court also noted that, in all negligence
actions, once defendant's liability is established, plaintiff
must prove actual damages before he can recover. Fisher, 93 Ill.
App. 3d at 697.
The only other case cited by plaintiffs, Exchange National
Bank v. Air Illinois, Inc., 167 Ill. App. 3d 1081 (1988), was a
wrongful death action that arose from an airline crash. Judgment
was entered for plaintiff's decedent and the airline appealed.
Exchange National Bank, 167 Ill. App. 3d at 1085. One of the
issues before the court was the propriety of a portion of a jury
instruction which read that "[t]here is no issue as to the
liability of the defendant for the damages." Exchange National
Bank, 167 Ill. App. 3d at 1091. The defendant contended that
this language misled the jury into believing defendant was
responsible for the crash. Exchange National Bank, 167 Ill. App.
3d at 1091. The court found since the jury was instructed that
the only issue before it was the amount of damages to award and
since the instruction did not suggest that defendant admitted
liability, it was not prejudicial. Exchange National Bank, 167
Ill. App. 3d at 1091.
Defendant relies on Nicholl v. Scaletta, 104 Ill. App. 3d
642 (1982), for the proposition that "the plaintiff still ha[s]
the burden of proving causation, and the nature and extent of her
alleged injuries, even though liability was established as a
matter of law." Nicholl, 104 Ill. App. 3d at 649, citing Jeffrey
v. Chicago Transit Authority, 37 Ill. App. 2d 327 (1962). We
agree with defendant and, in addition, find that the case of
Robertson v. Smith, 40 Ill. App. 3d 174 (1976), is also
instructive. In Robertson, plaintiff filed an action arising out
of an automobile accident. Robertson, 40 Ill. App. 3d at 175.
At the outset of trial, defendant admitted liability but
contested the issue of damages. The jury found no damages. On
appeal, plaintiff argued "that the verdict of no damages cannot
stand because defendant admitted liability at the outset of the
trial." Robertson, 40 Ill. App. 3d at 177. Plaintiff argued
that "defendant, by admitting liability, admitted proximate cause
and injury because these are elements of negligence liability,
and consequently some award, even if nominal, had to be given."
Robertson, 40 Ill. App. 3d at 177. The court disagreed. The
court noted that plaintiff's theory did find support in Edwards
v. Ely, 317 Ill. App. 599(1943), in which the court addressed an
identical issue. In Edwards, defendant had admitted liability
and disputed only the extent of damages. The jury awarded no
damages. On appeal, the court made a distinction between legal
injury, the invasion of a right, and physical injury. The court
then held that at least nominal damages must be awarded even
though defendant's admission of liability was the only proof of
legal injury. Edwards, 317 Ill. App. 599.
However, Edwards was re-examined in Jeffrey v. Chicago
Transit Authority, 37 Ill. App. 2d 327 (1962), in which the
court specifically held that even if a defendant's liability is
established, a plaintiff must prove actual damages before he can
recover. Jeffrey, 37 Ill. App. 2d at 336. The court applied
that rule to the facts of the case and held:
"[B]y his admission of liability defendant
admitted that the accident resulted from his
negligent operation of his vehicle, and that
plaintiff was free from contributory negligence.
The mere fact that the accident occurred as a
result of defendant's negligence does not, in any
way, establish that plaintiff sustained physical
injuries. While plaintiff was relieved, under
defendant's admission of liability, from proving
defendant's negligence and her freedom from
contributory negligence, she was required to
establish damages occasioned by physical injury.
The jury found that she had failed to do so, and
having so found, the award of no damages was
appropriate."
Accordingly, we find that while plaintiffs were not required
to prove liability on the part of defendant, under Jeffrey,
plaintiffs were nevertheless still required to prove actual
damages before he could recover. As defendant notes, a jury
cannot determine the nature, extent and duration of an alleged
injury, without first assessing what, if any, injury the
plaintiffs suffered as a result of the accident and the extent
and duration of any alleged injury.
Therefore, we find that it was not error for the court to
require plaintiff to prove injury and proximate cause at the
second trial.
B. EVIDENCE OF ARTHRITIS
Plaintiffs' next contention is that the introduction of
evidence that Carlos Cancio had arthritis was improper because
there was no showing that it caused any of his problems.
Prior to trial, plaintiffs moved in limine to exclude
evidence that Carlos Cancio had arthritis. That motion was
denied. Plaintiffs' counsel took the evidence deposition of Dr.
Shea, who has treated Carlos Cancio since 1990. During that
testimony, Dr. Shea read from Carlos Cancio's MRI record and
stated that the MRI record indicated "that the patient had a C6-
C7 disk herniation on the left side and also had some
degenerative changes of the C4 and C5 vertebrae." Dr. Shea also
testified that Carlos Cancio "had pre-existing disk degeneration
at C4-5 and *** also at C5-6. And this would be so-called
cervical spondylosis, which is sort of an arthritis or natural
aging of the spine at those two levels." Dr. Shea also testified
that "some of the pressure on the disk was due to some
preexisting arthritis."
Plaintiff relies on Marut v. Costello, 53 Ill. App. 2d 340
(1964), Karsten v. McCray, 157 Ill. App. 3d 1 (1987), and
Templeton v. Chicago & North Western Transportation Co., 257 Ill.
App. 3d 42 (1993), in support of his argument that evidence
relating to preexisting arthritis should not have been admitted.
In response, defendant argues that these cases are easily
distinguishable since none involves a preexisting condition to
the same part of the body. See, e.g., Karsten v. McCray, 157 Ill
App. 3d 1 (1987)(defendant's failure to introduce expert medical
testimony establishing a nexus between the plaintiff's
preexisting condition and her current condition required a new
trial where her preexisting injury was neither related to the
same part of the body nor similar to the injury complained of);
Templeton v. Chicago & North Western Transportation Co., 257 Ill.
App. 3d 42 (1993)(new trial warranted when irrelevant matter may
have confused the jury or influenced its view of relevant facts);
Marut v. Costello, 53 Ill. App. 2d 340 (1964)(improper to allow
evidence of previous injury to neck and shoulders without proof
of nexus to current back injury).
It is defendant's contention that since the preexisting
arthritis is in the same area of the body that Carlos Cancio
claimed was injured as a result of the accident, the evidence is
admissible. Defendant points this court to its decision in
Elberts v. Nussbaum Trucking, Inc., 97 Ill. App. 3d 381 (1981),
in support of his argument. In Elberts, the plaintiff brought an
action to recover for injuries that plaintiff sustained when her
automobile collided with defendant's semi-trailer truck. The
jury awarded plaintiff $2,000 damages for personal injuries and
plaintiff appealed seeking a new trial as to damages. Elberts,
97 Ill. App. 3d at 381. One of plaintiff's arguments on appeal
was that the trial court erred in denying her motion in limine to
exclude reference to a prior injury. Elberts, 97 Ill. App. 3d at
384. The court noted that during the hearing on the motion,
plaintiff's counsel stated that the prior injury was in the same
area of the back. For this reason, the court found that the
trial court properly denied plaintiff's motion to exclude
evidence of the prior injury. Elberts, 97 Ill. App. 3d at 384.
However, plaintiffs contend that even if there is an injury
to the same part of the body, evidence of that injury is
impermissible, unless there is a showing that there is a
connection between the past and present injuries. Plaintiffs
rely on the fifth district case of Brown v. Baker, 284 Ill. App.
3d 401 (1996). In Brown, the fifth district looked at the
reasoning behind that "same part of the body rule" and stated the
following:
"This rule leaves room for curious results.
For instance, a childhood knee injury (falling and
bruising a knee) could arguably be admissible in
the case of a later alleged knee injury, without
any further showing of relevance or causation,
even if the prior injury had completely healed and
been symptom free for decades. *** Such a rule
defies common sense. Obviously, evidence of the
old injury is presented to imply to the jury that
the old injury, and not the occurrence presently
at issue, is responsible for the plaintiff's
current complaints. Without the benefit of
testimony regarding causation in these instances,
jury members are invited to speculate on a nexus
between the past accident and the present injury."
Brown, 284 Ill. App. 3d at 404.
The court then concluded by saying that "[i]f a prior injury has
long since healed and has shown no recurring symptoms, a
defendant should not be permitted to introduce evidence of the
prior injury without establishing causation." Brown v. Baker,
284 Ill. App. 3d at 405. While the Brown case deals with a prior
injury, we find that an analogy may be made to the case of a
preexisting condition. We agree with plaintiffs and the fifth
district and hold that absent competent and relevant evidence of
a causal connection between the preexisting condition and the
injury complained of, evidence of the preexisting condition is
inadmissible.
In the instant case, Dr. Shea testified that Carlos Cancio
suffered a herniated disc as a direct result of the accident.
Dr. Shea testified that the MRI indicated some "encroachment due
to degenerative change." In explaining what this means, Dr. Shea
stated: "There is some pressure due to the fact that there was
some arthritis of the disc at that level so that some of the
encroachment or some of the pressure on the disc was due to some
pre-existing arthritis." We do not feel this testimony
constitutes competent evidence sufficient to show "more than a
mere possibility that the preexisting condition is the cause of
the injury." See Karsten, 157 Ill. App. 3d at 8. There must
also be medical proof of a connection between the preexisting
arthritis and the herniated disc. See Karsten, 157 Ill. App. 3d
at 8. Moreover, Dr. Shea later testified that everyone has some
degenerative changes in their bodies as they get older; however,
he stated that Carlos Cancio's age does not change his opinion
that the collision was a cause of the disk herniation.
Accordingly, we find that because defendant failed to
establish the requisite direct causal connection between Carlos
Cancio's preexisting arthritis and the herniated disc, evidence
of the arthritis was inadmissible.
C. QUESTIONING OF PLAINTIFF CARLOS REGARDING DISCUSSION WITH
ATTORNEY
Plaintiffs' third contention is that defense counsel's
cross-examination of Carlos Cancio regarding a conversation with
his attorney was improper.
Prior to trial, the court specifically warned both attorneys
about creating inferences during cross-examination that are not
supported by evidence. During trial, Carlos Cancio testified
that he was referred to Dr. Shea through a physician referral
service. Doctor Shea's records and testimony corroborated that
testimony. Defendant offered no testimony of any connection
between plaintiffs' counsel and Dr. Shea. Nevertheless, the
following exchange occurred during cross-examination of Carlos
Cancio:
"Q. You said at some point after Dr. Lewis
or treating with Dr. Lewis, you decided that you
wanted to see another doctor?
A. Right.
Q. And you called to make an appointment
with another Doctor, Dr. Shea; is that correct?
A. Yes.
Q. Before you made that phone call for the
referral, did you not call your attorney and ask
about finding another doctor?
A. We talked about it. I asked him that
this guy is not doing anything for me, and he says
well maybe do whatever you want.
Q. Now Dr. Shea, as far as you know, is not
an orthopedic surgeon; is that correct?
A. No.
MR. KLIMCZAK. I object to this judge."
Prior to closing argument, plaintiffs' counsel moved to
exclude any argument or innuendo that there was some unethical
connection between plaintiffs' counsel and Dr. Shea. The court
agreed that there was no such evidence. Defense counsel assured
both the court and counsel that he would only argue what is in
evidence. Nevertheless, in closing argument, defense counsel
furthered the inappropriate insinuation as follows:
"What happens next? More time goes by. Then
he goes to Dr. Shea in October of 1990. That's
almost two years after the accident. What happens
before he goes to see Dr. Shea? He talks to his
attorney. He makes a phone call."
Defense counsel went on to imply that Dr. Shea was plaintiffs'
"hired gun":
"We all know what money will do as a
motivating factor in swaying testimony one way or
the other. What other interests exist in this
case? Dr. Shea, he was being paid $500 for the
first hour and then $250 thereafter."
Generally, improper argument or misconduct of counsel can be
a sufficient basis to require a new trial. Mykytiuk v. Stamm,
196 Ill. App. 3d 928 (1990). It is improper to ask a question
when counsel has no good-faith reason for asking that question.
People v. Nuccio, 43 Ill. 2d 375 (1969). Defendant asserts that
the question of who referred Carlos to Dr. Shea is relevant to
the credibility of Dr. Shea's testimony and to the reasonableness
of the treatment sought since Carlos did not see Dr. Shea for 22
months after the accident and also since Dr. Lewis, the doctor
who did treat Carlos after the accident, did not testify. We
find this argument to be unpersuasive. Carlos testified that he
saw Dr. Lewis but that he did not find Dr. Lewis' treatment to be
effective and, therefore, he sought the treatment of another
physician. Additionally, defendant's implication that by failing
to call Dr. Lewis, Carlos is hiding exculpatory evidence is also
improper. This court found similar comments to be reversible
error in Rutledge v. St. Anne's Hospital, 230 Ill. App. 3d 786
(1992). In Rutledge, the attorney stated: "Has anyone come in
here and said Dr. Detrana wasn't qualified? Where is Dr.
Detrana? How come they didn't bring him in?" Rutledge, 230 Ill.
App. 3d at 791.
Accordingly, we find that defense counsel's cross-
examination and closing argument, which insinuated a connection
between Carlos Cancio's attorney and Dr. Shea, was improper,
unsupported by the evidence, highly prejudicial and deprived
plaintiffs of a fair trial.
D. INTRODUCTION OF PHOTOGRAPHS
Plaintiffs' fourth contention is that the introduction of
the photos of plaintiffs' mini-van was improper. Plaintiffs
specifically argue that the evidence was irrelevant since
liability was not in issue.
Photocopies of the original Polaroids of the plaintiffs'
vehicle were admitted by the court in the second trial because
the original Polaroids introduced at the first trial were missing
from the court file at the commencement of the second trial.
The only case plaintiffs cite in support of their argument
that the photos are inadmissible is Bullard v. Barnes, 102 Ill. 2d 505, 519 (1984). Plaintiffs cite this case for the
proposition that "[s]ince liability was not in issue, the photos
of Cancios' minivan were irrelevant." However, Bullard does not
support this contention. In Bullard, the parents of decedent
brought a wrongful death action against defendant for the death
of their son which resulted from an automobile accident.
Bullard, 102 Ill. 2d at 509. The jury found in favor of
plaintiff and defendant appealed. The appellate court reversed
and remanded for a new trial. On appeal to the supreme court,
the supreme court agreed with the appellate court's finding that
the admission of evidence of defendant Barnes' passing maneuver
or failure to stop after the collision constituted reversible
error. The court noted that "[r]elevancy is established where a
fact offered tends to prove a matter in controversy [citations]
and in view of defendant's admission of liability, these matters
were not in controversy." Bullard, 102 Ill. 2d at 519. This
does not aid plaintiffs' argument. In Bullard, defendant
admitted liability and there was no controversy as to who was at
fault; therefore, evidence of his passing maneuver or failure to
stop was not relevant. The evidence at issue in Bullard did not
go to the nature and extent of the plaintiff's injuries as it
does in the instant case. The fact that liability was not at
issue does not automatically render the photos of the mini-van
irrelevant.
Also at issue in Bullard was the admissibility of morgue
photos of the decedent. The Illinois Supreme Court disagreed
with defendants' arguments and the appellate court's decision
that the morgue photographs of the decedent were inadmissible.
Bullard, 102 Ill. 2d at 519. Defendants objected on appeal to
admission of these photographs on the grounds that they did not
aid the jury in determining the extent of decedent's pain and
suffering, and that they inaccurately depicted his injuries.
Bullard, 102 Ill. 2d at 519. The court found that "[i]f a
photograph of a decedent has sufficient probative value it should
be admitted in spite of the fact that it may be gruesome or
inflammatory, and such a decision normally rests within the
discretion of the trial court." The court held that, on retrial,
the photos would be admissible. Bullard, 102 Ill. 2d at 519.
In the instant case, the photos of plaintiffs' vehicle were
relevant to the nature and extent of plaintiffs' damages. They
were relevant because they showed little or no damage, which is
something the jury could consider in determining what, if any,
injuries Carlos Cancio sustained as a result of the accident.
Accordingly, we find that admission of the photos was proper.
E. VIOLATION OF MOTION IN LIMINE
Plaintiffs' fifth contention is that defense counsel
violated a motion in limine and that this is grounds for a new
trial.
We begin by noting that violation of an order in limine may
be grounds for a new trial. Rutledge v. St. Anne's Hospital, 230
Ill. App. 3d 786 (1992). Prior to trial, plaintiffs moved in
limine to prevent defense counsel from introducing various
evidence and making certain arguments. The trial court's order
in limine provided that the parties must
"refrain from making any direct or indirect
mention, whatsoever at the Trial, before the
Jury of the following matters ***
7. That Plaintiff has had similar
accidents as the one in issue to show a
likelihood of Plaintiff to have accidents;
***
12. That Defendant's attorney not be
allowed to argue in closing argument 'that
the Plaintiff has asked for a greater amount
of money than he actually expects to be
awarded.'"
During closing, defense counsel argued:
"According to Dr. Shea's testimony, he did a
history that an accident occurred in December of
1989.
MR. KLIMCZAK: Objection to that.
THE COURT: Again, Counsel, you will have an
opportunity to respond in a moment. Go ahead, Mr.
Mulligan.
MR. MULLIGAN: This is all in evidence..."
Despite the order in limine barring defense counsel from
arguing that plaintiffs' counsel asked for a greater amount than
he expected to be awarded, defense counsel also argued:
"Please don't go back there and say, well,
he's asking for $60,000.00. Let's split it down
the middle. You can't do that. You have to base
your decision on the evidence presented. If you
gave the plaintiff 10 percent of that $60,000 --
MR. KLIMCZAK: Objection to that.
MR. MULLIGAN: I haven't said anything.
THE COURT: Well, be careful what you say.
MR. MULLIGAN: If you gave the Plaintiff 10
percent of $60,000, that would be --
MR. KLIMCZAK: I object to that, Judge.
MR. MULLIGAN: What?
THE COURT: Why don't you respond to that in
your rebuttal."
We find that the reference to the December 1989 accident did
not constitute a violation of the order in limine. With regard
to the December 1989 accident, defense counsel was only barred
from arguing that the fact that Carlos Cancio had a similar
accident shows his likelihood of being in accidents. Defense
counsel did not make that argument. Defense counsel's argument
went to the credibility of Dr. Shea. Dr. Shea's report noted an
accident in December 1989 and this evidence was not barred.
We do find, however, that defense counsel did violate the
order in limine when he implied that plaintiffs were asking for
more than they expected to be awarded. Although defense counsel
never expressly stated as such and asserts that counsel was only
arguing that the amount sought by the plaintiffs were not
supported by the evidence, it is clear from the transcript that
the improper insinuation was put before the jury.
Accordingly, we find that the violation of the order in
limine is also grounds for a new trial.
F. CLOSING ARGUMENT
Plaintiffs' final contention is that defense counsel's
closing argument itself warrants reversal.
Plaintiffs point this court to the following argument made
by defense counsel:
"Then he goes to see a Dr. Lewis. We don't
have Dr. Lewis' testimony. What does Dr. Lewis
do? All we know is what plaintiff tells you Dr.
Lewis did or didn't do. Wouldn't you like to hear
Dr. Lewis' testimony?
MR. KLIMCZAK: Objection to that.
THE COURT: Sustained, Counsel. Move on.
MR. MULLIGAN: There is no evidence
whatsoever as to -- from a medical care provider
what --
MR. KLIMCZAK: Objection. That's a
mischaracterization of the evidence."
As we stated earlier, defense counsel's implication that by
failing to call Dr. Lewis, plaintiffs are hiding exculpatory
evidence is improper. See Rutledge, 230 Ill. App. 3d 786.
Accordingly, we find that this improper behavior, when combined
with defense counsel's improper cross-examination of Carlos
Cancio, was prejudicial and is sufficient in and of itself to
warrant reversal.
For the aforementioned reasons, the judgment of the circuit
court of Cook County is reversed and the cause is remanded for a
new trial on the issue of damages.
Reversed and remanded.
GALLAGHER and O'MARA FROSSARD, JJ., concur.