Phillips v. Havenar , 2024 IL App (4th) 230204-U ( 2024 )

2024 IL App (4th) 230204-UNOTICE
FILED
NO. 4-23-0204 February 5, 2024
This Order was filed under
Carla Bender
Supreme Court Rule 23 and is
IN THE APPELLATE COURT 4th District Appellate
not precedent except in the
Court, IL
limited circumstances allowed
under Rule 23(e)(1). OF ILLINOIS
FOURTH DISTRICT
CHRISTOPHER PHILLIPS, Individually and as Parent ) Appeal from the
and Next Friend of C.J.P, a Minor, and CHELSIE ) Circuit Court of
PLUMMER, Individually, ) Sangamon County
Plaintiffs-Appellants, ) No. 20L215
v. )
AMY HAVENAR, ) Honorable
Defendant-Appellee. ) Raylene DeWitte Grischow,
) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court.
Justices Zenoff and Doherty concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, holding:
(1) the trial court did not abuse its discretion by excluding portions of
plaintiffs’ billing expert’s evidence deposition testimony;
(2) the court did not abuse its discretion by barring a plastic surgeon from
offering testimony concerning matters that were not disclosed in discovery;
(3) the court did not err by barring a second plastic surgeon from testifying
concerning the injured child’s need for future medical care when the physician
had not seen the child in almost a year;
(4) plaintiffs’ claim that the court erred by denying their motion for a
directed verdict was moot;
(5) plaintiffs failed to show they were prejudiced by allegedly erroneous
rulings on certain pretrial motions;
(6) plaintiffs forfeited their argument that the court erred when it ruled that
their billing expert’s evidence deposition could not be altered as they requested by
failing to support the argument with citations to relevant authority; and
(7) the court did not abuse its discretion by denying plaintiffs’ posttrial
motion for an additur or new trial on the issue of damages.
¶2 Plaintiffs, Christopher Phillips, individually and as parent and next friend of
C.J.P., a minor, and Chelsie Plummer, individually, filed a lawsuit against defendant, Amy
Havenar. (During his trial testimony, Phillips stated that his name was “Christopher Phillips
Howell,” whereas his name is stated as “Christropher Phillips” in the pleadings. We refer to him
as “Christopher Phillips” throughout this order to maintain consistency.) Phillips was C.J.P.’s
father and Plummer was his mother. The lawsuit concerned an incident during which C.J.P. was
bitten by defendant’s dog and suffered injuries to his face, left arm, back, and chest. C.J.P. was
four years old at the time of the incident. Plaintiffs alleged claims of negligence and a violation
of section 16 of the Animal Control Act (510 ILCS 5/16 (West 2020)) against defendant.
Following a trial, a jury returned a verdict in plaintiffs’ favor on their Animal Control Act claim
but not on their negligence claim. The jury awarded plaintiffs damages totaling $172,525.80.
¶3 On appeal, plaintiffs argue the trial court erred by (1) excluding portions of the
evidence deposition testimony of their billing expert, Rebecca Busch, (2) barring Dr. Victor
Stams from testifying concerning C.J.P.’s need for fat grafting and the cost of future medical
care, (3) barring Dr. Reuben Bueno from testifying as to C.J.P.’s need for future medical care,
(4) denying their motion for a directed verdict at the close of evidence, (5) making erroneous
rulings on certain pretrial motions, (6) ruling that Busch’s evidence deposition testimony could
not be altered as requested by plaintiffs, and (7) denying their posttrial motion for an additur or a
new trial on the issue of damages due to the jury’s allegedly erroneous calculation of “future
surgical costs.” We affirm.
¶4 I. BACKGROUND
¶5 On November 2, 2020, plaintiffs filed a complaint against defendant, which was
subsequently amended twice. The third amended complaint asserted causes of action against
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defendant for negligence and violating section 16 of the Animal Control Act (510 ILCS 5/16
(West 2020)). A jury trial commenced on October 24, 2022.
¶6 A. The Incident
¶7 The trial evidence established that, on July 19, 2020, C.J.P. was at the home of his
friend, I.T. Defendant lived next door to I.T., and I.T. often played with A.H., defendant’s
daughter. A.H., I.T., and C.J.P. were all four years old at the time of the incident, and defendant
allowed the children to play together in her backyard. Defendant owned a dog, which one
witness described as medium-sized, approximately three feet tall, and weighing 40 to 50 pounds.
Another witness described him as a large dog weighing approximately 100 pounds. Defendant
testified the dog had never been aggressive before the incident.
¶8 On the day of the incident, defendant’s paramour placed the dog in the backyard
on a chain that was approximately 10 feet long. C.J.P, I.T., and A.H. went into the backyard to
play on a swing set. C.J.P. walked over to pet the dog when it attacked him. I.T. observed the
incident and testified the dog used C.J.P. like a “chew toy.” Justin T., I.T.’s father, was in his
backyard next door during the incident. He heard screaming, ran over to defendant’s backyard,
and observed the dog biting C.J.P.’s arm. Justin grabbed C.J.P., carried him inside, and called
911.
¶9 Lindsay Kaiser, a paramedic, testified that she responded to the scene shortly after
the incident and observed C.J.P. covered in blood. She observed wounds on his face, neck, back,
left upper arm, and armpit area. The wounds on his left upper arm were so significant that his
bicep muscle was visible. On the way to the hospital, C.J.P. repeatedly asked if he was going to
be okay, said he was scared, and asked if he was going to die.
¶ 10 B. Dr. Bueno
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¶ 11 Outside of the presence of the jury, plaintiffs’ counsel noted that the trial court
had previously ruled off the record that Dr. Bueno would not be permitted to testify as to C.J.P.’s
need for future medical care. The court then stated on the record that it had stricken the portion
of Dr. Bueno’s evidence deposition testimony concerning future medical care because Dr. Bueno
had not seen C.J.P. since October 2020 and had indicated that he would need to see the child
again to be able to render an opinion as to future medical care.
¶ 12 Dr. Bueno’s redacted deposition was read to the jury. Dr. Bueno testified that he
was a plastic surgeon, and he operated on C.J.P. on the evening of the incident. Dr. Bueno
observed that C.J.P. had extensive injuries to the skin, fat, and muscle on his “left upper
extremity,” back, and chest. During the surgery, Dr. Bueno cleaned and repaired the wounds,
excising 300 square centimeters of nonviable subcutaneous tissue and muscle and bringing the
viable tissue together with sutures. Photographs of C.J.P.’s injuries taken at the hospital shortly
after the incident were admitted along with Dr. Bueno’s evidence deposition.
¶ 13 Dr. Bueno testified that he saw C.J.P. at several follow-up visits after he was
released from the hospital. Dr. Bueno observed C.J.P.’s wounds were healing as expected, with
no signs of infection. On October 14, 2020, when Dr. Bueno last saw C.J.P., his scars were firm
and raised. There were still some healing wounds on his back. C.J.P. had some limitations in
terms of the mobility of his left arm and shoulder, but his parents reported he was back to his
normal activity levels. Dr. Bueno stated he could not offer an opinion within a reasonable degree
of medical certainty as to whether C.J.P. would have any future limitations as to the strength and
use of his left arm without examining him again. Dr. Bueno stated any opinion he offered on
future limitations, pain and suffering, or treatment would be speculation.
¶ 14 C. Dr. Stams
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¶ 15 The evidence deposition of Dr. Stams, a plastic surgeon, was read to the jury. Dr.
Stams testified that he examined C.J.P. in December 2021 and observed he had developed
hypertrophic and keloid scars. Dr. Stams indicated C.J.P.’s scars were firm and immature at that
time. According to Dr. Stams, scars often soften over time and typically mature within one to
two years. He stated he advised Plummer that if she noticed changes in the scars, like growth,
C.J.P. could return for steroid injections to soften the scars and reduce their progression.
¶ 16 Dr. Stams advised Plummer that it was not “imperative” for C.J.P.’s scars to be
surgically excised, but Plummer or C.J.P. could choose to have them excised in the future.
During such a procedure, Dr. Stams would remove the scar tissue and close the wounds with a
series of sutures, creating “more favorable scars” than the original scars. Dr. Stams indicated
surgery was not necessary to improve the function of the affected body parts and would likely be
cosmetic in nature. Defense counsel asked Dr. Stams if he expected that C.J.P.’s scars would
soften over time and not require further surgical intervention. Dr. Stams replied, “That is the
usual process, yes.” Defense counsel then asked Dr. Stams if he thought it was more likely than
not that C.J.P. “will not require any intervention from [him] in the future.” Dr. Stams replied,
“More likely than not, yes.”
¶ 17 During the trial, plaintiffs indicated they also wished to call Dr. Stams to give live
testimony concerning a phone conversation he had with Busch, their billing expert, after his
evidence deposition was taken. Plaintiffs also wished to question him concerning the cost of
future medical care. Defendant objected, asserting plaintiffs had not questioned Dr. Stams about
the cost of future medical care in either his discovery deposition or evidence deposition. The trial
court ruled Dr. Stams could provide in-court testimony as to the matters disclosed in his evidence
deposition, but he could not testify concerning his conversation with Busch, the specific costs of
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procedures, or other matters that were not disclosed in discovery. The court stated Dr. Stams
would not be allowed to “talk about that stuff” because it would be violative of Illinois Supreme
Court Rule 213 (eff. Jan. 1, 2018), as it was not disclosed until after discovery was concluded.
Plaintiffs called Dr. Stams to make an offer of proof outside the presence of the jury concerning
the necessity of preoperative and postoperative appointments for scar revision surgery, the cost
of surgery, and postoperative occupational therapy. Dr. Stams stated during the offer of proof
that he did not recall having a telephone call with Busch.
¶ 18 D. Rebecca Busch
¶ 19 1. Motions Concerning Busch’s Testimony
¶ 20 Several motions concerning Busch’s testimony were presented and decided prior
to and during the trial. On September 30, 2022, plaintiffs filed their fifth motion in limine, which
sought admission of Busch’s testimony concerning the calculation of C.J.P.’s future medical
costs. On October 3, 2022, defendant filed her fifth and sixth motions in limine, which requested
that the trial court bar Busch from testifying at trial and bar plaintiffs from presenting evidence
that C.J.P. may need future medical care or the costs of such care. On October 11, 2022, the
court granted plaintiffs’ motion and denied defendant’s motions.
¶ 21 On October 18, 2022, defendant filed a motion to reconsider the rulings on her
fifth and sixth motions in limine. Defendant argued that Busch should be barred from testifying
concerning the costs of future psychological treatment, occupational therapy, fat grafts, and
sedation for C.J.P. because no qualified medical experts would be testifying at trial that C.J.P.
would need such treatments in the future. Defendant also asserted that Busch should not be
permitted to testify as to a phone conversation she had with Dr. Stams, as Dr. Stams’s alleged
statements to Busch would not be subject to cross-examination. On October 24, 2022, the day the
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trial commenced, the court ruled that Busch’s phone conversation with Dr. Stams was
inadmissible hearsay. The court took the rest of defendant’s motion to reconsider under
advisement.
¶ 22 The trial court and the parties again addressed Busch’s testimony on the second
day of the trial. Defense counsel objected to Busch testifying as to the cost of a fat grafting
procedure because her opinion was based a phone call with Dr. Stams, which counsel asserted
constituted inadmissible hearsay, and plaintiffs had not otherwise disclosed in discovery that
C.J.P. would need future fat grafting procedures. Plaintiffs’ counsel argued that fat grafting was a
type of scar revision surgery and that Dr. Stams had testified in his evidence deposition that
C.J.P. could undergo future scar revision surgeries. The court ruled Busch could not testify as to
the cost of a future fat grafting procedure, finding plaintiffs had not properly disclosed in
discovery that C.J.P. would need such a procedure in the future. The court also struck Busch’s
evidence deposition testimony as to the cost of psychological treatment, occupational therapy,
anesthesia, and preoperative and postoperative surgical clearances because no medical provider
had testified that C.J.P. would need such treatment. Additionally, the court struck all references
to Busch’s phone conversation with Dr. Stams from her evidence deposition.
¶ 23 2. Redacted Evidence Deposition Testimony
¶ 24 Busch’s redacted evidence deposition was read to the jury. Busch testified that
she was an expert healthcare consultant, and she was president and chief executive officer of a
company called Medical Business Associates. She was also a registered nurse. Plaintiffs tendered
Busch as “an expert in the area of healthcare cost examinations including but not limited to
forensic audits, current health care costs and subsequent future healthcare cost evaluations.”
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¶ 25 Busch testified she had been hired by C.J.P.’s attorneys to conduct a “prospective
review” whereby, based on information provided by C.J.P.’s medical providers, she calculated
the costs associated with C.J.P.’s future medical services. Busch used current procedural
terminology (CPT) codes to project the cost of future medical care. When projecting the costs of
future care, Busch always used the most conservative, least costly applicable codes. Busch
reviewed C.J.P.’s medical records, medical bills, and depositions of physicians in preparing her
report. She indicated she used her clinical background to understand the services articulated in
the medical records and depositions. She then used her coding and financial background to
“convert those statements directly into the appropriate coding language.” Busch indicated she
was not offering opinions as a medical provider as to what future procedures C.J.P. might need.
Rather, she was “only offering the communications of those needs as documented in [her] report
and the proper coding and CPT language.”
¶ 26 Busch stated that, pursuant to “coding rule[s],” the projected cost of a steroid
injection in one scar was $1111.76, and the cost of injections in multiple scars was $961.81 per
scar. She testified the projected cost of scar revision surgery was $10,361.04 per scar.
¶ 27 E. Christopher Phillips
¶ 28 Phillips testified that he was notified on the day of the incident that C.J.P. had
been attacked by a dog. When he first saw C.J.P. at the hospital, he observed wounds on C.J.P.’s
arm that were so deep that his bone was visible. C.J.P. underwent surgery and remained in the
hospital for approximately one week. Phillips observed that C.J.P appeared to be in pain
throughout his hospital stay, noting C.J.P. cried and was in pain when his bandages were
changed, which occurred every six hours.
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¶ 29 Phillips indicated that, after C.J.P. was discharged from the hospital, he was not
able to play outside, play with friends, swim, play sports, or go to school. C.J.P.’s bandages had
to be changed every six hours for approximately six to eight weeks after he was discharged. He
began having night terrors after the incident, which he did not have before the attack. C.J.P. did
not have full range of motion in his left arm after the incident. He also had itching on his left
arm, back, and side. Phillips indicated he wanted to have all of C.J.P.’s scars revised with steroid
injections and surgery when he was older. He stated he also intended to take C.J.P. to obtain a
mental health evaluation in the near future. He indicated C.J.P. appeared to be self-conscious
about his scars, his left arm was not as strong as his right arm, and he had a reduced range of
motion.
¶ 30 F. Chelsie Plummer
¶ 31 Plummer testified that she agreed with Phillips’s decision to wait until C.J.P. was
older, possibly in middle school, for him to have scar revision surgery. Photographs depicting
C.J.P.’s scars were admitted into evidence. Plummer identified in these photographs the scars
which she wished to have excised. She testified that Dr. Stams advised her in December 2021
that further surgeries on C.J.P.’s arm were not medically necessary at that time. She indicated
C.J.P. currently had good range of motion in his arm, could move his hand and arm normally,
and did not have any pain in the arm.
¶ 32 G. Verdict
¶ 33 At the close of the evidence, plaintiffs moved for a directed verdict on their claim
under the Animal Control Act, and the trial court denied the motion.
¶ 34 On October 28, 2022, the jury returned a verdict finding in favor of plaintiffs on
their Animal Control Act claim and against them on their negligence claim. The jury awarded
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C.J.P. damages totaling $75,000, including: $35,000 for past pain and suffering; $15,000 for
disfigurement; $10,000 for loss of a normal life; and $15,000 for past emotional distress. The
jury awarded no damages for future pain and suffering, future loss of a normal life, or future
emotional distress. The jury awarded Phillips and Plummer damages for C.J.P.’s past necessary
medical care and treatment in the amount of $87,525.80 and damages for future medical care and
treatment in the amount of $10,000.
¶ 35 Plaintiffs filed a motion for a new trial or, alternatively, “judicial adjustment of
damages,” asserting numerous claims of error. The trial court denied the motion in its entirety.
This appeal followed.
¶ 36 II. ANALYSIS
¶ 37 On appeal, plaintiffs argue the trial court erred by (1) excluding portions of
Busch’s evidence deposition testimony, (2) barring Dr. Stams from testifying concerning C.J.P.’s
need for fat grafting and the cost of future medical care, (3) barring Dr. Bueno from testifying as
to C.J.P.’s need for future medical care, (4) denying their motion for a directed verdict at the
close of the evidence, (5) making erroneous rulings on certain pretrial motions, (6) ruling that
Busch’s evidence deposition testimony could not be altered, and (7) denying their posttrial
motion for an additur or a new trial on the issue of damages due to the jury’s erroneous
calculation of “future surgical costs.”
¶ 38 A. Busch’s Testimony
¶ 39 Plaintiffs assert the trial court erred in limiting Busch’s testimony concerning the
cost of C.J.P.’s future medical care. Plaintiffs first contend the court incorrectly barred Busch’s
testimony concerning the cost of certain future care on the basis that no medical provider had
indicated that C.J.P. would need such care. Plaintiffs also argue the court erred by barring Busch
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from testifying concerning her “physician’s query” phone conversation with Dr. Stams on the
basis that it was hearsay and by excluding evidence of the physician’s query without conducting
a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
¶ 40 1. Limiting Testimony Regarding the Cost of Future Medical Care
¶ 41 Plaintiffs argue the trial court abused its discretion by barring Busch from
testifying as to the cost of certain future medical care for C.J.P. on the basis that no medical
provider would testify concerning the need for such care. Plaintiffs sought to introduce testimony
from Busch concerning the cost of anesthesia, fat grafting, preoperative surgical clearances,
postoperative surgical clearances, an occupational therapy examination following surgery, and
mental health evaluations. Plaintiffs argue these costs were related to the future medical
procedures Dr. Stams testified C.J.P. could possibly undergo, and there was an adequate
evidentiary foundation for them. Defendant contends the court’s limitation of Busch’s testimony
was proper because there was an insufficient foundation for the stricken testimony.
¶ 42 “An expert’s opinion is only as valid as the bases and reasons for the opinion.”
Soto v. Gaytan, 313 Ill. App. 3d 137, 146 (2000). “A party must lay a foundation sufficient to
establish the reliability of the bases for the expert’s opinion.” Petraski v. Thedos, 382 Ill. App. 3d
22, 28 (2008). “Expert opinions based on guess, speculation, or conjecture are inadmissible.”
Torres v. Midwest Development Co., 383 Ill. App. 3d 20, 28-29 (2008). “Possible future damages
are not recoverable by the plaintiff unless they are reasonably certain to follow.” Diaz v. Legat
Architects, Inc., 397 Ill. App. 3d 13, 45 (2009). “Evidence as to damages which is speculative,
remote or based upon mere probability is improper.” Id.¶ 43 “The decision of whether to admit or exclude evidence, including whether to
allow an expert to present certain opinions, rests solely within the discretion of the trial court and
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will not be disturbed absent an abuse of discretion.” Cetera v. DiFilippo, 404 Ill. App. 3d 20, 36-
37 (2010). “An abuse of discretion occurs when a ruling is arbitrary, fanciful, or one that no
reasonable person would make.” Evans v. Cook County State’s Attorney, 2021 IL 125513, ¶ 41;
see Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 177 (2003).
¶ 44 We find that the trial court did not abuse its discretion by barring Busch from
testifying as to the cost of fat grafting, future mental health evaluations, anesthesia, preoperative
and postoperative consultations, and an occupational therapy evaluation. No medical provider
testified that C.J.P. would need these treatments or services in the future due to his injuries, and
plaintiffs did not otherwise present any evidence indicating C.J.P. was reasonably certain to need
them. Busch was tendered as an expert in healthcare cost examinations, and her role was limited
to giving opinions as to the cost of C.J.P.’s future medical care. In the absence of evidence
indicating that C.J.P. would require the identified treatments and services in the future, the
court’s decision to bar Busch’s testimony concerning their cost was not arbitrary, fanciful, or
unreasonable.
¶ 45 We reject plaintiffs’ argument that Busch should have been permitted to testify as
to the cost of anesthesia, preoperative and postoperative consultations, and a postoperative
occupational therapy evaluation because Dr. Stams testified concerning the possibility of future
scar revision surgery. Neither Dr. Stams nor any other medical provider offered details as to the
particular care and services that would be necessary if C.J.P. were to undergo a scar revision
procedure. Certainly, no medical witness testified as to what type of anesthetic would be
required, whether preoperative and postoperative consultations would be required, how many
preoperative and postoperative consultations (if any) would be necessary, or whether an
occupational therapy evaluation would be needed after surgery. Under these circumstances, we
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find the trial court’s decision to bar Busch from testifying as to these specific costs was not
arbitrary, fanciful, or one that no reasonable person would make. See Evans, 2021 IL 125513,
¶ 41.
¶ 46 We also reject plaintiffs’ assertion that Busch should have been permitted to
testify as to the cost of fat grafting because it is apparent to the “naked eye” that a large amount
of tissue was removed from C.J.P., and the jury “could easily have found that the dimpled,
tissue-missing areas should be supplemented with fat.” Plaintiffs cite Maddox v. Rozek, 265 Ill.
App. 3d 1007, 1009-10 (1994), in support of their argument that expert testimony was not
required to establish the need for fat grafting. The Maddox court held that, where the injury is
obvious to the naked eye, a jury may award damages for future pain and suffering based on the
nature of the injury alone. Id. However, the issue in the present case does not involve pain and
suffering, but instead involves a claim for future medical expenses. While it may have been
apparent to the naked eye that C.J.P. was missing tissue in the area of his scars, it was not
obvious that he might need to undergo a fat grafting procedure in the future to remedy this.
Whether or not he might need a fat grafting procedure in the future could only be determined by
a qualified medical provider. Accordingly, the trial court’s decision to disallow Busch’s
testimony as to the cost of a fat grafting procedure was not arbitrary, fanciful, or unreasonable
where there was no medical testimony indicating C.J.P. was likely to undergo such a procedure
in the future.
¶ 47 2. Exclusion of Testimony Regarding Physician’s Query
¶ 48 Plaintiffs argue that the trial court erred by barring evidence of Busch’s
“physician’s query” phone conversation with Dr. Stams on the basis that it constituted
inadmissible hearsay. Plaintiffs contend the physician’s query was the type of information upon
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which experts in Busch’s field reasonably relied and, accordingly, it was admissible under
Illinois Rule of Evidence 703 (eff. Jan. 1, 2011). Plaintiffs argue the court’s ruling prevented
them from “presenting evidence regarding the need for fat grafting surgery” and that their
damages award for future medical care would have been larger if the evidence had been allowed.
¶ 49 Rule 703 provides:
“The facts or data in the particular case upon which an expert bases an
opinion or inference may be those perceived by or made known to the expert at or
before the hearing. If of a type reasonably relied upon by experts in the particular
field in forming opinions or inferences upon the subject, the facts or data need not
be admissible in evidence.” Id.Rule 703 is nearly identical to a former version of Federal Rule of Evidence 703 (Jan. 2, 1975)
that was adopted by our supreme court in Wilson v. Clark, 84 Ill. 2d 186, 195 (1981). Our
supreme court has recognized that this rule does not create an exception to the rule against
hearsay, as the underlying facts or data upon which an expert is found to have reasonably relied
are not admitted for their truth but rather for the limited purpose of explaining the basis of the
expert’s opinion. City of Chicago v. Anthony, 136 Ill. 2d 169, 185 (1990). Moreover, “a trial
judge need not allow an expert to recite inadmissible evidence when its probative value in
explaining the opinion is outweighed by its likely prejudicial impact or tendency to create
confusion.” Rios v. City of Chicago, 331 Ill. App. 3d 763, 772 (2002).
¶ 50 Thus, pursuant to the foregoing authority, Dr. Stams’s statements to Busch during
the physician’s query could not have been admitted through Busch’s testimony under Illinois
Rule of Evidence 703 (eff. Jan. 1, 2011) for their truth—i.e., to establish that C.J.P. needed
future fat grafting surgery. While the statements were arguably admissible for the limited
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purpose of explaining Busch’s opinion regarding the cost of this procedure, plaintiffs do not
indicate that they wished to have the statements admitted for this limited purpose. Rather,
plaintiffs indicate they sought admission of these statements to “establish the need for fat
grafting surgery,” which would have required that the statements be admitted for their truth.
¶ 51 Moreover, the trial court had previously barred plaintiffs from offering any
undisclosed expert opinions by Dr. Stams, which clearly would have included an opinion that
C.J.P. required a fat grafting procedure. Under the circumstances, it would have been improper
for plaintiffs to have then elicited through Busch the very same undisclosed opinion by Dr.
Stams in a “back door” manner. Accordingly, we conclude the trial court did not abuse its
discretion in excluding Busch’s testimony about the “physician’s query.” While our rationale
supporting the exclusion of the physician’s query is somewhat different from the one articulated
by the trial court, we may affirm the judgment of the trial court on any basis that is supported by
the record. Stoll v. United Way of Champaign County, Illinois, Inc., 378 Ill. App. 3d 1048, 1051
(2008).
¶ 52 3. Frye Hearing
¶ 53 Plaintiffs also argue that the trial court erred by excluding evidence of Busch’s
physician’s query with Dr. Stams without holding a Frye hearing. “[T]he Frye standard dictates
that scientific evidence is admissible at trial only if the methodology or scientific principle upon
which the opinion is based is ‘sufficiently established to have gained general acceptance in the
particular field in which it belongs.’ ” In re Commitment of Simons, 213 Ill. 2d 523, 529 (2004)
(quoting Frye, 293 F. at 1014); see Ill. R. Evid. 702 (eff. Jan. 1, 2011). The Frye standard applies
only to new or novel scientific methodologies. Simons, 213 Ill. 2d at 530. Here, the record shows
that defendant did not seek to exclude the physician’s query based on Frye principles. Nor was
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the court’s decision to exclude the testimony related in any way to Frye. Accordingly, we find
plaintiffs’ Frye argument to be inapposite.
¶ 54 B. Limiting the Testimony of Dr. Stams
¶ 55 Plaintiffs argue that the trial court erred by barring Dr. Stams from giving in-court
testimony and specifically barring him from testifying concerning his physician’s query with
Busch, the need for C.J.P. to undergo future fat grafting procedures, and the cost of future
medical care. Plaintiffs contend that Dr. Stams should have been permitted to testify as a live
witness, notwithstanding that he previously gave testimony in an evidence deposition, pursuant
to Illinois Supreme Court Rule 212(b) (eff. Oct. 1, 2020). Plaintiffs also argue the court erred by
barring this testimony on the basis that they had not properly disclosed the opinions they sought
to elicit from Dr. Stams.
¶ 56 1. Rule 212
¶ 57 We first address plaintiffs’ argument that the trial court erred by barring Dr.
Stams from testifying in court. Rule 212(b) provides, in relevant part: “The evidence deposition
of a physician or surgeon may be introduced in evidence at trial on the motion of either party
regardless of the availability of the deponent, without prejudice to the right of either party to
subpoena or otherwise call the physician or surgeon for attendance at trial.” Ill. S. Ct. R. 212(b)
(eff. Oct. 1, 2020). Thus, pursuant to Rule 212(b), the introduction of a physician’s evidence
deposition does not prevent a party from being able to call the physician as a live witness.
Castillo v. Stevens, 2019 IL App (1st) 172958, ¶ 38.
¶ 58 Here, plaintiffs are mistaken in asserting the trial court barred Dr. Stams from
testifying at all as a live witness. In fact, the court expressly ruled that Dr. Stams could give live
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testimony, although he was prohibited from discussing matters that had not been disclosed in
discovery. We proceed to address that ruling.
¶ 59 2. Failure to Disclose Opinions in Discovery
¶ 60 As previously stated, the trial court barred Dr. Stams from testifying concerning
the cost of future medical care, fat grafting, and other matters that were allegedly discussed in his
physician’s query with Busch because plaintiffs had not disclosed these matters in their Rule
213(f) disclosures or Dr. Stams’s discovery deposition or evidence deposition.
¶ 61 Illinois Supreme Court Rule 213(f) (eff. Oct. 1, 2020) provides that, upon a
written interrogatory, a party must furnish the identities of witnesses who will testify at trial and,
for independent expert witnesses, “must identify the subjects on which the witness will testify
and the opinions the party expects to elicit.” Rule 213(g) provides that “[t]he information
disclosed in answer to a Rule 213(f) interrogatory, or in a discovery deposition, limits the
testimony that can be given by a witness on direct examination at trial.” Ill. S. Ct. R. 213(g) (eff.
Oct. 1, 2020). The fact that a witness’s trial testimony elaborates on or is more precise than an
originally disclosed opinion does not necessarily result in a violation of Rule 213, but the
testimony must be encompassed by the witness’s original opinion. Prairie v. Snow Valley Health
Resources, Inc., 324 Ill. App. 3d 568, 576 (2001). “Opinion testimony is ‘limited to comments
within the scope of and consistent with the facts and opinions disclosed in discovery.’ ” Id.(quoting Parker v. Illinois Masonic Warren Barr Pavilion, 299 Ill. App. 3d 495, 501 (1998)). “A
trial court’s decision regarding whether an opinion has been adequately disclosed such that it
may be admitted into evidence is reviewed applying the abuse-of-discretion standard.” Id.¶ 62 Here, plaintiffs indicated in their Rule 213(f) disclosures that Dr. Stams was a
plastic surgeon and would testify as to his assessments, plans of care, care rendered to C.J.P.,
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causation, pain and suffering, and scarring. The parties indicate in their briefs that a discovery
deposition of Dr. Stams was taken, but it does not appear in the record. In his evidence
deposition, Dr. Stams indicated that C.J.P. could have scar revision surgery in the future, which
he stated would involve cutting out the scar tissue and closing the wounds with sutures to create
“more favorable scars.” He did not testify that fat grafting would be a component of such a
procedure. Nor did he indicate what type of anesthetic would be used, whether preoperative and
postoperative evaluations would be necessary, or the cost of such a procedure.
¶ 63 Under these circumstances, we find the trial court did not abuse its discretion by
barring Dr. Stams from testifying concerning fat grafting and other matters that he allegedly
discussed over the phone with Busch. These matters were not encompassed by plaintiffs’ Rule
213(f) disclosures, which did not even indicate that Dr. Stams would testify concerning future
medical care, and we cannot determine from this record whether they were encompassed by his
discovery deposition. While Dr. Stams discussed certain possible future medical procedures
during his evidence deposition, including steroid injections and scar revision surgery, he did not
specifically testify concerning the other matters plaintiffs have identified on appeal. We conclude
the court’s ruling prohibiting Dr. Stams from testifying concerning these matters because they
were not disclosed in discovery was not an abuse of discretion. See Evans, 2021 IL 125513, ¶ 41.
¶ 64 C. Limitation of Dr. Bueno’s Testimony
¶ 65 Plaintiffs argue that the trial court erred by barring Dr. Bueno from testifying as to
C.J.P.’s need for future medical care if he continued to suffer from a lack of range of motion or
strength deficits. We will not disturb the trial court’s decision to exclude this testimony absent an
abuse of discretion. Cetera, 404 Ill. App. 3d at 36-37.
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¶ 66 In determining whether medical opinion testimony concerning the prognosis for a
patient’s injuries or condition is admissible:
“Courts will consider the nature of the plaintiff’s injury or condition, the type of
treatment administered to the plaintiff, the length of time the plaintiff was
receiving the treatment, the number and frequency of the plaintiff's visits, the
length of time between the plaintiff’s last treatment and the witness’ formation of
his or her opinion, the length of time between the formation of the opinion and the
trial, and any other circumstances that bear on the relevance and reliability of the
proposed testimony.” Decker v. Libell, 193 Ill. 2d 250, 254 (2000).
¶ 67 In the instant case, the trial court did not abuse its discretion in excluding Dr.
Bueno’s testimony concerning C.J.P.’s need for future medical care. Dr. Bueno last examined
C.J.P. in October 2020—almost one year before his evidence deposition was taken and two years
before the trial was held. In fact, Dr. Bueno stated during his evidence deposition that he would
be speculating if he gave an opinion concerning C.J.P.’s need for future treatment because he had
not treated C.J.P. in nearly a year. Under these circumstances, the court’s decision to strike the
portion of Dr. Bueno’s evidence deposition testimony concerning the possible need for future
medical care was not an abuse of discretion. See Evans, 2021 IL 125513, ¶ 41.
¶ 68 D. Motion for a Directed Verdict
¶ 69 Plaintiffs argue the trial court erred by denying their motion for a directed verdict
at the close of evidence as to their Animal Control Act claim. We find this issue is moot in light
of the jury’s subsequent verdict in plaintiffs’ favor on this very same claim, and, accordingly, we
will not address it on the merits. See Condon v. American Telephone & Telegraph Co., 136 Ill.
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2d 95, 99 (1990) (“Courts of review will not decide moot or abstract questions, will not review
cases merely to establish precedent, and will not render advisory opinions.”).
¶ 70 E. Pretrial Rulings
¶ 71 Plaintiffs argue that several of the trial court’s rulings on pretrial motions
constituted an abuse of discretion. These include the court’s rulings (1) excluding evidence that
defendant’s dog was a pit bull, (2) excluding evidence of the dog’s aggressive behavior toward a
police officer and animal control personnel after the incident, (3) barring plaintiffs from arguing
that defendant violated a local ordinance in support of their negligence claim, (4) allowing
defendant “to argue comparative or contributory fault” of C.J.P. as to both plaintiffs’ negligence
claim and Animal Control Act claim, (5) denying plaintiffs’ motions to compel defendant to
produce the dog’s veterinary records and their motion for a negative inference based on her
failure to do so, and (6) barring them from introducing a photograph of defendant’s backyard.
¶ 72 “Erroneous evidentiary rulings are only a basis for reversal if the error was
substantially prejudicial and affected the outcome of trial.” (Internal quotation marks omitted.)
First Midwest Bank v. Rossi, 2023 IL App (4th) 220643, ¶ 161. “Conversely, where it appears
that an error did not affect the outcome of the trial, or where the reviewing court can see from the
entire record that the error did not result in substantial prejudice, the judgment will not be
disturbed.” Bachman v. General Motors Corp., 332 Ill. App. 3d 760, 784-85 (2002). The burden
of showing prejudice is on the party seeking reversal. First Midwest Bank, 2023 IL App (4th)
220643, ¶ 161.
¶ 73 The primary form of prejudice plaintiffs assert as to all of these allegedly
erroneous rulings was that the rulings impacted their ability to prove defendant’s liability, either
with regard to proving lack of provocation as to their Animal Control Act claim or generally
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proving their negligence claim. However, as the jury returned a verdict in plaintiffs’ favor on
their Animal Control Act claim, they were not prejudiced by any effect these rulings might have
had on their ability to prove that claim.
¶ 74 Plaintiffs were also not prejudiced by these rulings in establishing their
negligence claim. The jury found in plaintiffs’ favor on their Animal Control Act claim and
awarded them damages for C.J.P.’s injuries. Plaintiffs were only entitled to one recovery for
these injuries even if defendant was found liable under multiple theories. See Dial v. City of
O’Fallon, 81 Ill. 2d 548, 558 (1980) (“[T]he courts in Illinois have long recognized the legal
principle that a plaintiff shall have only one satisfaction for an injury [citations], irrespective of
the availability of multiple theories that recovery for the injury can be sought under.”); Carollo v.
Al Warren Oil Co., 355 Ill. App. 3d 172, 187-88 (2004) (“A plaintiff is entitled to one recovery
only for his injuries, regardless of the number of theories advanced.”).
¶ 75 Plaintiffs also claim that the trial court’s allegedly erroneous exclusion of
evidence of the breed of the dog and its behavior after the incident led to a reduced award of
damages for pain and suffering. We reject these arguments. Evidence that the dog behaved
aggressively toward third parties after the incident occurred was irrelevant to the pain and
suffering experienced by C.J.P. Also, given the evidence presented at trial concerning the dog’s
size and the extensive evidence concerning the nature and extent of the injuries sustained by
C.J.P., it is apparent that any error resulting from the exclusion of the dog’s breed did not affect
the outcome of the trial in the form a reduced damages award for pain and suffering. See
Bachman, 332 Ill. App. 3d at 784-85.
¶ 76 In their reply brief, plaintiffs also assert for the first time that defense counsel’s
alleged contributory negligence and comparative fault arguments “could have seriously impacted
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the jury’s decision to award damages for both future and past pain and suffering as well as future
medical costs.” We find plaintiffs have forfeited their argument that this alleged error prejudiced
them by reducing their damages award, as it was asserted for the first time in a conclusory
manner in their reply brief. See Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (“Points not argued are
forfeited and shall not be raised in the reply brief.”); Wolfe v. Menard, Inc., 364 Ill. App. 3d 338,
348 (2006) (“The appellant must argue the points that he or she raises, or they are waived.
[Citation.] A conclusory assertion, without supporting analysis, is not enough.”).
¶ 77 F. Trial Court’s Refusal to Alter Busch’s Deposition Testimony
¶ 78 Plaintiffs argue the trial court erred by prohibiting them from altering Busch’s
evidence deposition testimony following the court’s ruling on an objection. After the court
determined Busch could not testify about the fat grafting procedure, plaintiffs proposed
subtracting the cost of fat grafting from the cost ranges for total future medical expenses that
Busch discussed during her evidence deposition. Instead, the court required plaintiffs to strike
Busch’s testimony concerning the cost ranges for total future expenses entirely because the
ranges included the cost of fat grafting. Defendant argues plaintiffs forfeited this argument by
failing to include any citations to authority in support of it, as required by Illinois Supreme Court
Rule 341(h)(7) (eff. Oct. 1, 2020), which provides that an appellant’s brief shall include
“[a]rgument, which shall contain the contentions of the appellant and the reasons therefor, with
citation of the authorities *** relied on.” We agree with defendant and find that plaintiffs have
forfeited this argument due to their failure to comply with Rule 341(h)(7). See Vilardo v.
Barrington Community School District 220, 406 Ill. App. 3d 713, 720 (2010) (“Contentions
supported by some argument but by absolutely no authority do not meet the requirements of
[Rule 341(h)(7)].” (Internal quotation marks omitted.)).
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¶ 79 G. Jury’s Award for Future Medical Expenses
¶ 80 Finally, plaintiffs argue that the jury erred by “calculating the child’s future
surgical costs at $10,000.” Plaintiffs assert the evidence was uncontroverted that surgical
excision would cost $10,341.04 per scar, and C.J.P.’s parents testified they planned on having at
least 13 scars removed in the future. Plaintiffs request that we increase the damages award for
future medical expenses to $134,693.52 or, alternatively, remand the matter for a new trial on
damages.
¶ 81 Plaintiffs raised this issue in their posttrial motion, and the trial court denied their
request for a new trial or additur, finding the jury’s verdict was not contrary to the manifest
weight of the evidence. “We review the trial court’s grant or denial of a new trial or an additur or
remittitur for an abuse of discretion.” Sheth v. SAB Tool Supply Co., 2013 IL App (1st) 110156,
¶ 82; see Maple v. Gustafson, 151 Ill. 2d 445, 455 (1992) (“A court’s ruling on a motion for a
new trial will not be reversed except in those instances where it is affirmatively shown that it
clearly abused its discretion.”).
¶ 82 The determination of damages is a question of fact within the discretion of the
jury, and a jury’s award of damages is entitled to substantial deference. Snover v. McGraw, 172
Ill. 2d 438, 447 (1996). “Reviewing courts will not interfere with the jury’s assessment of
damages unless a proven element of damages was ignored, the verdict resulted from passion or
prejudice, or the award bears no reasonable relationship to the loss suffered.” Gill v. Foster, 157
Ill. 2d 304, 315 (1993). “Possible future damages are not recoverable by the plaintiff unless they
are reasonably certain to follow.” Diaz, 397 Ill. App. 3d at 45.
¶ 83 Here, contrary to plaintiffs’ characterization in their brief, the jury awarded
plaintiffs $10,000 in damages for “future medical care [and] [t]reatment.” Nothing in the verdict
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indicated the jury awarded damages specifically for future “surgical costs.” Dr. Stams testified
that C.J.P. may need steroid injections, scar revision surgery, or both in the future, and plaintiffs
argued that the jury should award damages for both types of procedures. Plaintiffs presented
evidence that scar revision surgery would cost $10,341.04 per surgical excision, and steroid
injections would cost $1111.76 for one scar or $961.81 per scar for multiple scars.
¶ 84 Based on the evidence presented, it is possible the jury awarded future medical
damages for several steroid injections but not for scar revision surgery. Notably, Dr. Stams
testified that scar revision surgery was optional but not imperative, was not necessary to improve
the function of the affected body parts, and would likely be cosmetic in nature. The jury may
have found, based on Dr. Stams’s testimony, that scar revision surgery was not a reasonably
certain future expense but that steroid injections were. See People v. Sullivan, 366 Ill. App. 3d
770, 782 (2006) (“The trier of fact is free to resolve inconsistencies in testimony and is free to
accept or reject as much or as little of a witness’s testimony as it pleases.”). Accordingly, we find
the trial court did not abuse its discretion by denying plaintiff’s motion for an additur or a new
trial on damages.
¶ 85 III. CONCLUSION
¶ 86 For the reasons stated, we affirm the trial court’s judgment.
¶ 87 Affirmed.
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