{ "id": 3617598, "name": "RALPH TOMASOVIC, Plaintiff-Appellant, v. AMERICAN HONDA MOTOR COMPANY, INC., et al., Defendants-Appellees", "name_abbreviation": "Tomasovic v. American Honda Motor Co.", "decision_date": "1988-06-15", "docket_number": "No. 87-1141", "first_page": "979", "last_page": "992", "citations": [ { "type": "official", "cite": "171 Ill. App. 3d 979" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "288 N.E.2d 622", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "7 Ill. App. 3d 1029", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2672905 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/7/1029-01" ] }, { "cite": "375 N.E.2d 456", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "59 Ill. App. 3d 400", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3357786 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/59/0400-01" ] }, { "cite": "107 S. Ct. 3232", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "97 L. Ed. 2d 738", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "483 U.S. 1007", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 28226, 28390, 28039, 28104, 28140, 28334, 28305, 28372, 28184, 28378, 28317, 28126 ], "opinion_index": 0, "case_paths": [ "/us/483/1007-05", "/us/483/1007-08", "/us/483/1007-03", "/us/483/1007-09", "/us/483/1007-04", "/us/483/1007-06", "/us/483/1007-10", "/us/483/1007-07", "/us/483/1007-12", "/us/483/1007-01", "/us/483/1007-11", "/us/483/1007-02" ] }, { "cite": "499 N.E.2d 952", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "148 Ill. App. 3d 581", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3642305 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/0581-01" ] }, { "cite": "509 N.E.2d 1376", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "157 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3543613 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/157/0001-01" ] }, { "cite": "475 N.E.2d 817", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "105 Ill. 2d 537", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3142403 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/105/0537-01" ] }, { "cite": "417 N.E.2d 154", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "93 Ill. App. 3d 244", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3130065 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/93/0244-01" ] }, { "cite": "456 N.E.2d 703", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "119 Ill. App. 3d 346", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3628723 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/119/0346-01" ] }, { "cite": "423 N.E.2d 503", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "97 Ill. App. 3d 792", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3111491 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/97/0792-01" ] }, { "cite": "340 N.E.2d 684", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "34 Ill. App. 3d 773", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2961294 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/34/0773-01" ] }, { "cite": "229 N.E.2d 171", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "85 Ill. App. 2d 129", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2551648 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-2d/85/0129-01" ] }, { "cite": "356 N.E.2d 565", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "42 Ill. App. 3d 668", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2639931 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/42/0668-01" ] }, { "cite": "393 N.E.2d 9", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill. App. 3d 270", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3270150 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/74/0270-01" ] }, { "cite": "409 N.E.2d 112", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "87 Ill. App. 3d 74", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3178268 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/0074-01" ] }, { "cite": "504 N.E.2d 756", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "152 Ill. App. 3d 578", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3575362 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/152/0578-01" ] }, { "cite": "504 N.E.2d 772", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "152 Ill. App. 3d 524", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3575904 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/152/0524-01" ] } ], "analysis": { "cardinality": 1129, "char_count": 28189, "ocr_confidence": 0.779, "pagerank": { "raw": 4.799074266037642e-08, "percentile": 0.3014393889373473 }, "sha256": "9d995d7c0120e04c878a46cbf31ffeb65407b83181b327a6ad1506ad2f17feec", "simhash": "1:afaab1c62be827d1", "word_count": 4701 }, "last_updated": "2023-07-14T21:35:27.168167+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "RALPH TOMASOVIC, Plaintiff-Appellant, v. AMERICAN HONDA MOTOR COMPANY, INC., et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE McNAMARA\ndelivered the opinion of the court:\nPlaintiff Ralph Tomasovic brought a products liability action against defendant American Honda Motor Company, Inc., alleging that he sustained injuries arising out of a motorcycle accident caused by a defective motorcycle manufactured by defendant. A jury returned a verdict in favor of defendant, and the trial court entered judgment on the verdict. On appeal, plaintiff contends that the judgment is against the manifest weight of the evidence; that the trial court erred in admitting the defense expert\u2019s speculative opinion regarding tampering; that the trial court improperly denied plaintiff\u2019s motion in limine to exclude evidence of the speed limit where plaintiff\u2019s conduct was not in issue; that the trial court erred in not excluding testimony of a treating physician due to his ex parte communication with defense counsel prior to trial; and that the trial court erred when it failed to resolve the jury\u2019s request for clarification of jury instructions.\nOn April 29, 1977, plaintiff suffered burn injuries in a motorcycle accident in Schaumburg, Illinois. The issue of liability turns on evidence of whether the crash or a fire occurred first, and expert evidence regarding the gas cap assembly on the motorcycle. At trial, plaintiff sought to prove that the gas cap assembly was not crashworthy and thus dangerously defective. He urged that the gasoline caught fire seconds after the crash forced open the gas cap. Defendant countered that the gasoline caught fire seconds before, and actually caused the crash. It argued that the gas cap was left partially open after plaintiff filled the tank just prior to the accident.\nDr. Raymond E. Hoffman, plaintiff\u2019s physician, testified for plaintiff regarding the burns plaintiff suffered. In reciting the history taken from plaintiff immediately after the accident, Dr. Hoffman testified he remembered that plaintiff \u201cwas riding his motorcycle and it exploded under him. And I remember the story he had to find a place to put a flaming motorcycle down when he was riding it.\u201d\nKathy Vanecko, an eyewitness, testified for plaintiff that she was walking near an intersection when plaintiff passed her. He was traveling at about 40 miles per hour. Just after he passed her, plaintiff lost control of the motorcycle and crashed into a house. She saw no fire on plaintiff or the motorcycle until after the crash.\nHiram Archibald, an eyewitness, testified for plaintiff that he was a passenger in a van driven by James Frasheski when he saw plaintiff\u2019s accident. Frasheski exclaimed, \u201cLook at that,\u201d and at the same time Archibald saw plaintiff running to the street in flames. They were approximately 300 yards from plaintiff at the time they first saw him.\nPlaintiff testified that he bought the motorcycle, which was used, one month before the accident and had ridden it three or four times. He had never owned a motorcycle before and did not have an owner\u2019s manual. He had driven various motorcycles and minibikes since he was in fifth grade. The day of the accident was the first time he had ever put gasoline into the motorcycle in question. On that day, he filled the tank and recalled that he replaced the cap when he was done. He testified, \u201cWith the palm, a firm motion down, hearing the click.\u201d He left the gas station, but did not look at the cap again. The accident occurred 7.8 miles from the gas station. During that time, plaintiff noticed nothing unusual about the gas tank and smelled no gasoline. Plaintiff testified that he lost control of the motorcycle when, traveling at 25 miles per hour, he attempted to go around a parked van.\nPlaintiff denied telling a doctor that he saw a loose gas cap when he hit a bump. He denied reporting that the gasoline spilled out, causing his motorcycle and clothes to catch fire. He denied telling a doctor that he remembered the entire incident. Plaintiff also denied having worked on the gas cap with any tools.\nKevin Heinlein, an eyewitness, testified for plaintiff. He was playing ball near the intersection when he saw the motorcycle leave the street and saw a ball of fire emerge when the motorcycle hit a house.\nDonna Heinlein testified for plaintiff regarding events following the accident. Laura Ann Tomasovic, Matthew Stephan and Nathan Dorsey testified for plaintiff regarding the condition of the motorcycle before and after the accident. There had never been any previous problems with the gas cap.\nDr. Harry Peterson testified as an expert for plaintiff that defendant\u2019s gas cap assembly was dangerously defective. The locking device installed on the Honda motorcycle gas caps pursuant to recall worked to prevent the caps from opening. Dr. Peterson opined that if the recall locking mechanism was on plaintiff's motorcycle he would not have suffered burns in the accident.\nDr. Percy McDonald testified for defendant. In a voir dire outside the presence of the jury, the court heard testimony regarding pretrial communication between Dr. McDonald and defense counsel. The court allowed plaintiff\u2019s attorney to question Dr. McDonald privately and then permitted the witness to testify in court.\nDr. McDonald saw plaintiff in the emergency room on the night of the accident. Dr. McDonald wrote in the medical chart that plaintiff was \u201calert, oriented to time and place and cooperative.\u201d Plaintiff told Dr. McDonald that he remembered the entire occurrence. Dr. McDonald wrote down plaintiff\u2019s description of the accident:\n\u201cPatient states that he was riding his motorcycle and noticed that the gasoline cap was loose and at the time he hit a bump ***. The gasoline spilled over and ran down to the engine [and] subsequently exploded destroying the motorcycle and also setting fire to the patient\u2019s clothes.\u201d\nKathleen Collins, a nurse, testified for defendant that she treated plaintiff in the burn unit on the evening of the accident. She recorded: \u201cPatient states that cap on gasoline tank came off of cycle that he was riding, it blew up and he ran into a house.\u201d Collins testified that she did not edit plaintiff\u2019s statement, and took it down \u201cword for word.\u201d\nJames Frasheski, an eyewitness, testified for defendant that he was driving a van near an intersection when he saw plaintiff 100 to 125 feet away. He saw the gas cap on plaintiff\u2019s motorcycle fly up and fly back down. When the motorcycle hit the curb, fluid poured out of the gas tank and ran down the right side of the motorcycle. Plaintiff pushed the motorcycle down, and stood up, on fire. Frasheski stopped the van and used a fire extinguisher from his van to put out the fire on the motorcycle.\nLeann McRill, an eyewitness, testified for defendant that she was playing near the intersection when she saw plaintiff approach. She believed he was going \u201cfast.\u201d She did not see the accident. Nicholas Steinbach, an eyewitness, testified for defendant that he was playing with other children when he saw the motorcycle hit the curb and travel across the lawn. Frasheski was on the scene with the fire extinguisher within two to three seconds.\nBrian Gill, an assistant manager for safety and environmental activities for defendant, testified that a National Highway Traffic Safety Administration investigation of Honda gas caps was suspended in 1974 and has never been reopened. Prior to defendant\u2019s voluntary recall of gas caps for installation of locking devices, the Safety Administration had never requested a recall. The language contained in the recall notice was required by the Department of Transportation regulations.\nEdmund Kababa, an engineer, testified as an expert for defendant that the latch hook on plaintiff\u2019s gas cap was fractured. It had come open before plaintiff left the road. He believed plaintiff could not have impacted the gas cap when the motorcycle hit the house because the knee impressions in the side of the gas tank showed that plaintiff was on the seat at the time of the collision. He could not have impacted the gas cap when the motorcycle hit the curb because he had to be in a normal seated position in order to brake and maintain the motorcycle in an upright position as he crossed the lawn. Another indication that the gas cap was already open when plaintiff reached the wall was the bum pattern on his body. The primary burns were on his front side, and thus he could not have been on top of, or in front of, the filler hole as the gas spurted out. The burns which reached his back were secondarily spread inside his jacket.\nKababa opined that the front hinge placement of the gas cap did not effect the injuries because the latch hood was broken and the cap was open before the impact. His opinion was not altered after considering Dr. Peterson\u2019s opinion that the gas cap should have been recessed and the cap should have had a lock.\nAccording to Kababa, the latch showed a fracture of the latch hook. The check hook pin on the underside of the gas cap was distorted. To a reasonable degree of engineering certainty, the only way the check hook pin could have been bent without bending the latch pin was by exerting force between the pins. A screwdriver-sized lever would be narrow enough and strong enough to accomplish this.\nKababa opined that the deformation on the latch mechanism could not have been caused by the collision because there was nothing in the accident mode which could have provided the specific force required to bend the pin in that manner. In his opinion, the motorcycle was not in an unreasonably dangerous condition when it left the factory. Kababa disagreed with Dr. Peterson\u2019s recommendations regarding the cap latch strength. In the 66 crash tests relied upon by Dr. Peterson, five reported fuel leakage, and none involved Honda double-action hinged caps. None of the tests showed that a cap could open upon impact from a rider.\nPlaintiff initially contends that the jury verdict in favor of defendant is against the manifest weight of the evidence. A jury\u2019s verdict will not be disturbed on appeal unless it is clearly erroneous or against the manifest weight of the evidence. (Bautista v. Verson Allsteel Press Co. (1987), 152 Ill. App. 3d 524, 504 N.E.2d 772.) A verdict is against the manifest weight of the evidence only if it is wholly unwarranted by the evidence or clearly the result of passion or prejudice. The relevant inquiry on appeal is whether the result reached is reasonable on the facts and evidence presented, and not whether other conclusions are possible. Denton v. Allstate Insurance Co. (1986), 152 Ill. App. 3d 578, 504 N.E.2d 756.\nFrasheski\u2019s testimony strongly supported the jury verdict. Frasheski testified that just seconds prior to the crash he saw the gas cap loose. \u201cI saw this cap fly up and fly back down.\u201d The motorcycle then struck the curb, and \u201cfluid came out from the top of the tank and ran down the righthand side of the bike.\u201d He \u201csaw fuel splash up from the tank.\u201d At that time, the right side of the motorcycle and the engine area ignited. The fire was initially on the engine, not on the rider\u2019s clothes. At that moment, plaintiff was in a normal riding position. Plaintiff skidded across the grass and driveway. As the motorcycle came down on its side, plaintiff \u201cpulled himself off the bike at this point and came running away from the bike toward the street, and this is the first time he was on fire at that point. That\u2019s the first time I realized he was on fire.\u201d\nPlaintiff attacks this evidence by characterizing Frasheski\u2019s statements at trial as a \u201cfabrication of testimony.\u201d Plaintiff points to evidence of other eyewitnesses to contradict Frasheski. For example, plaintiff relies on the testimony of Kathy Vanecko, that she saw the crash before she saw any fire. Vanecko also testified, however, that when plaintiff passed her, his back was to her. Consequently, she did not know if the gas cap was open, and she could not see whether there was a fire on the right side of the engine. Vanecko also testified that plaintiff was not on fire below his waist. The hospital records, however, indicated that plaintiff suffered burns on his right leg, which is consistent with Frasheski\u2019s testimony that the gasoline ran down the side of the motorcycle and ignited just before the crash.\nIn attacking Frasheski\u2019s testimony, plaintiff also relies upon Archibald\u2019s statement that he and Frasheski were not at the scene, but were \u201cat least 900 feet away at the time the accident happened and could not see the accident.\u201d When confronted with Archibald\u2019s estimation, Frasheski did not alter his own estimation of 100 to 125 feet. Plaintiff points out that \u201cArchibald further testified that Mr. Frasheski could not have seen the occurrence\u201d because they saw plaintiff at the same time, which was after the crash. In a previous statement, however, Archibald said, \u201cI didn\u2019t see it happen, you know; but [Frasheski] might. It\u2019s possible.\u201d In another pretrial statement, Archibald said, \u201cJim was the first one that noticed it, yes.\u201d\nPlaintiff also highlights Frasheski\u2019s testimony at trial where he conceded on direct examination that he initially erred in a pretrial statement in specifying the time of the accident as 4:30. \u201cAfter rereading the statement and discussing it with my mother, my mother reminded me I got scolded for coming home late for dinner that day.\u201d Frasheski also testified that he erred in a 1980 statement in asserting that the gas cap came completely off the tank. At trial, he testified that the hinged cap \u201copened and closed.\u201d\nPlaintiff further points to Frasheski\u2019s testimony that he never even saw plaintiff run out into the street following the crash. Frasheski actually testified that when he saw plaintiff pull himself off the motorcycle and come \u201crunning away from the bike towards the street,\u201d Frasheski brought the van to a complete stop and grabbed a fire extinguisher from behind the passenger seat of the van. He explained that he never saw plaintiff actually run into the street, because at that moment Frasheski was reaching for the fire extinguisher and exiting his own van.\nThe jury was entitled to believe Frasheski\u2019s strong and detailed testimony and to find any minor inconsistencies to not be determinative of the issue of liability.\nFurthermore, Dr. Hoffman\u2019s testimony regarding the history plaintiff gave supports defendant\u2019s theory that the fire occurred prior to the crash. Dr. Hoffman testified:\n\u201cMy other recollection over the years is that I remember that Ralph was riding his motorcycle and it exploded under him. And I remember the story he had to find a place to put a flaming motorcycle down when he was riding it. That may not be accurate, but that\u2019s my recollection.\u201d\nAdditionally, on cross-examination, Dr. Hoffman stated that he relied upon a history taken by Dr. McDonald following the accident. There was nothing in the history about crashing into a wall. The history stated that plaintiff \u201cremembered the entire incident.\u201d While riding his motorcycle, plaintiff noticed \u201c[t]hat the gasoline tank cap was loose, and at that time he hit a bump.\u201d The gasoline then \u201cspilled over and ran down to the engine and subsequently exploded, destroying the motorcycle and also setting fire to the patient\u2019s clothes.\u201d The testimony of Dr. McDonald and of Kathleen Collins corroborates Dr. Hoffman\u2019s testimony.\nPlaintiff maintains that the history taken by Dr. McDonald was not significant because he testified that \u201c[f]rom a medical viewpoint, what we really need to know to take care of him was that it was a flame bum.\u201d We do not see how this substantially lessens the impact of Dr. Hoffman\u2019s testimony such that it would render the verdict against the manifest weight of the evidence.\nIn arguing that the jury verdict was against the manifest weight of the evidence, plaintiff relies heavily upon his expert witness Dr. Peterson\u2019s testimony, maintaining it was such that the manifest weight of the evidence established that the cap fractured at impact. He opined that the cap and tank were defective because of the absence of a locking device, and also because the location of the cap on the tank in a raised position made the cap susceptible to pelvic impact. Dr. Peterson criticized the hinging on the cap towards the front of the bike, the material used in the latch hook, and the spring-loaded mechanism under the cap. Dr. Peterson believed that the latch hook on the motorcycle had a casting defect which existed at the time the motorcycle was placed on the market and sold. The casting defect considerably lowered the amount of force it. would take to break the gas cap latch hook.\nAs the basis for his opinion, Dr. Peterson relied on a series of studies on the question of motorcycle crashworthiness. Of the 66 motorcycle crash tests, however, only one had a hinged gas cap like the one at issue here. In that single test, the cap did not open or leak. Furthermore, no latch hooks had fractured in the tests, and the tests never indicated that a rider would hit a gas cap as he moved forward in a frontal collision.\nThe question of whether a product is unreasonably dangerous is usually a jury question in a products liability action, and this is particularly true where conflicting expert testimony is presented. (Ebbert v. Vulcan Iron Works, Inc. (1980), 87 Ill. App. 3d 74, 409 N.E.2d 112.) Defendant countered plaintiff\u2019s expert evidence with detailed and credible expert testimony from Kababa. He found the latch hook was designed with sufficient strength and that the motorcycle was not dangerous or defective. Kababa pointed out that there was no indication of pelvic impact on the tank. The burn pattern on plaintiff indicated the gas cap was open before plaintiff moved forward off the seat. The latching mechanism showed the hook had been fractured by a prying force rather than during the accident. The presence of carbon material in the gouge indicated it had been made prior to the fire.\nWe cannot say the verdict is wholly unwarranted by the evidence. Instead, we must conclude that the evidence supports the verdict and the result reached is reasonable. We will not disturb the jury verdict.\nPlaintiff next contends that the trial court erred in admitting Kababa\u2019s expert opinion that the latch hook on the gas cap was tampered with and fractured prior to the crash. Plaintiff maintains that the testimony was speculative. Kababa \u201cadmitted] that he was telling the jury that he did not know how or who or when this latch cap (hook) was fractured other than that it happened before the fire.\u201d Plaintiff argues that the \u201cexpert\u2019s unfounded suggestion that someone had tampered with the gas cap before the occurrence was highly prejudicial. It allowed the jury to conclude that the injury was caused by tampering when no such evidence existed.\u201d At trial, plaintiff argued to the court that the expert opinion should be excluded as fabricated testimony.\nWhere an expert opinion has no factual basis, the opinion is entitled to little weight. (Anderson v. General Grinding Wheel Corp. (1979), 74 Ill. App. 3d 270, 393 N.E.2d 9.) Kababa\u2019s opinion, however, was not speculative.\nKababa testified that the latch hook was fractured prior to the crash. A force was exerted between the check hook pin and the latch pin. At trial, Kababa noted gouge marks on the gas cap assembly. Based on a reasonable degree of scientific and engineering certainty, Kababa opined that the marks were made by \u201csomething stronger than the material of the cap, the latch itself, something like steel and would have to be a small, thin steel object to leave a small gouge like the gouge is.\u201d Kababa stated that it could have been made by the tip of a screwdriver. He then identified a Honda tool kit which comes with a 350-type motorcycle and noted there were three screwdrivers in the kit. He stated that when he scored on the cap button with a screwdriver it made the same type of mark as that on the plaintiff\u2019s cap.\nKababa testified further that the check hook pin had a slight distortion in it, but the latch pin had no distortion. He found this significant and, based upon a reasonable degree of engineering and scientifie certainty, he opined that the \u201cforce to cause this type of bending and no bending here had to be applied between two pieces.\u201d He agreed that a screwdriver was the right size tool for causing that force between the two parts. He determined this after conducting various experiments. Kababa explained the different types of distortion which could have been caused with a different type of force.\n\u201cCOURT: Well, he said an instrument like a screwdriver. I can\u2019t strike an expert\u2019s testimony. He is an expert.\nPLAINTIFF\u2019S COUNSEL: I mean he has to have a foundation or basis.\nCOURT: Well, the jury can believe him or not, but I am not going to strike it.\u201d\nKababa sufficiently testified as to the basis of his opinion. The jury was then entitled to determine whether or not that opinion deserved any weight. The relative weight and sufficiency of expert and opinion testimony is peculiarly within the province of the trier of fact to decide. (Brewer v. Custom Builders Corp. (1976), 42 Ill. App. 3d 668, 356 N.E.2d 565.) The weight and value of an expert opinion depends largely upon foundations of fact and reason upon which the opinion rests. (Manion v. Brant Oil Co. (1967), 85 Ill. App. 2d 129, 229 N.E.2d 171.) We hold that there was sufficient evidence for the trier of fact to find that Kababa\u2019s opinion had some foundation and was not speculative. See Walczak v. General Motors Corp. (1976), 34 Ill. App. 3d 773, 340 N.E.2d 684.\nThe testimony of an expert is judged by the same rules of weight and credibility which apply to other witnesses. (Brendel v. Hustava (1981), 97 Ill. App. 3d 792, 423 N.E.2d 503.) A witness\u2019 testimony should not be completely disregarded unless it is so inherently improbable and contrary to the laws of nature or universal human experience so as to be incredible and beyond limits of human belief. (Bucktown Partners v. Johnson (1983), 119 Ill. App. 3d 346, 456 N.E.2d 703.) We cannot say that is the case here. Moreover, the jury is free to completely disregard the expert\u2019s conclusion of fact. (Lundy v. Whiting Corp. (1981), 93 Ill. App. 3d 244, 417 N.E.2d 154.) Whether or not the Honda tool kit\u2019s screwdriver or any other screwdriver was ever used to work on the gas cap assembly are issues for the jury to decide.\nPlaintiff objects to the fact that Kababa\u2019s opinion regarding tampering was not raised during his deposition and was first introduced at trial. His deposition is not before us and thus we cannot address this point.\nPlaintiff also maintains that cross-examination on this issue was improper. Plaintiff called Laura Tomasovic on rebuttal to testify that she knew nothing about any possible tampering with the gas cap. On cross-examination, she was asked three questions. The first: \u201c[If] [s]omebody pried up on the gas cap it wasn\u2019t you, is that correct?\u201d She was then asked: \u201cIf someone tampered with that gas cap, it wasn\u2019t you?\u201d The trial court sustained objections to these two questions, and struck them. The third question was asked without objection: \u201cYou didn\u2019t do anything to that gas cap, is that correct?\u201d The witness replied, \u201cNo, I did not.\u201d\nPlaintiff argues that the first two questions \u201cwere intended to convey improper information which is not in evidence and are so prejudicial and inflammatory as to merit the granting of a new trial.\u201d The court properly ruled, struck the questions, and directed the jury to disregard the questions. We find no prejudicial or reversible error.\nNext, plaintiff contends that the trial court erred in denying plaintiff\u2019s motion in limine and allowing evidence of speed to be introduced. The motion in limine sought to exclude evidence that plaintiff was traveling at an excessive rate of speed and violating the speed limit of 25 miles per hour. Plaintiff maintains that evidence of a speed limit violation improperly placed the issue of plaintiff\u2019s negligence into this strict liability case.\nAt trial, plaintiff was first to introduce testimony regarding his speed. During plaintiff\u2019s case in chief, plaintiff\u2019s counsel elicited from Vanecko her estimate that plaintiff was traveling at 40 miles per hour when he passed her. On cross-examination she repeated this estimate with no objection from plaintiff. Plaintiff, Frasheski and McRill also gave estimates of road speed without objection. We conclude that plaintiff has waived the right to raise this issue on appeal. See Auton v. Logan Landfill, Inc. (1984), 105 Ill. 2d 537, 475 N.E.2d 817.\nPlaintiff contends further that Dr. McDonald\u2019s testimony should not have been permitted due to his ex parte communication with defense counsel. (See Karsten v. McCray (1987), 157 Ill. App. 3d 1, 509 N.E.2d 1376; Petrillo v. Syntex Laboratories, Inc. (1986), 148 Ill. App. 3d 581, 499 N.E.2d 952, cert. denied (1987), 483 U.S. 1007, 97 L. Ed. 2d 738, 107 S. Ct. 3232.) On September 16, 1986, Dr. McDonald met with defense counsel and reviewed plaintiff\u2019s hospital chart and discussed the history which he had recorded.\nDr. McDonald was not called as a treating physician. Instead, he had been an intern who took plaintiff\u2019s history. He was called as a person to whom plaintiff made an admission. He testified regarding that recorded admission. Thus, the Petrillo rule is not applicable.\nMoreover, there is no allegation here that Dr. McDonald was in possession of any confidential information from plaintiff or that he ever discussed confidential information with defense counsel. Plaintiff admits that the only subject at issue was the recorded history. We note that plaintiff\u2019s counsel was given unlimited opportunity to conduct examination on voir dire and to interview the doctor privately before he testified. Finally, we find it significant that the identical history regarding which Dr. McDonald testified was also brought out by plaintiff on direct examination of Dr. Hoffman. No error occurred.\nPlaintiff finally contends that the trial court erred in its response to the jury\u2019s request for clarification of certain Illinois Pattern Jury Instructions. During deliberations, the jury sent out a note:\n\u201cJudge, can we have clarification of these three pages, specifically on the question of unanimous vote on points for plaintiff *** ff\nThe note was accompanied by burden of proof, elements of damages, and issues instructions. The trial court and counsel conferred. The court suggested directing the jury to reread the instructions and inquire further if any questions remained. The court noted that, because they had waited an hour for a court reporter, it was possible that the jury no longer needed clarification. Defense counsel informed the court that its suggestion would be fine, and plaintiff\u2019s counsel also replied, \u201cFine.\u201d The court wrote the following note to the jury, and read it to counsel.\n\u201cTo the Jury, please re-read each instruction very carefully. Resume your deliberations, and if you continue to have problems understanding them, contact me.\u201d\nPlaintiff\u2019s attorney replied, \u201cOkay,\u201d and reminded the court to return the jury instructions to the jury. The jury did not communicate with the court again. We find that plaintiff waived the right to raise this issue on review. (See Auton v. Logan Landfill, Inc. (1984), 105 Ill. 2d 537, 475 N.E.2d 817.) Moreover, the jury raised no explicit question of law. (Gale v. Hoekstra (1978), 59 Ill. App. 3d 400, 375 N.E.2d 456.) Thus, the court was not required to clarify the instructions. (People v. Kucala (1972), 7 Ill. App. 3d 1029, 288 N.E.2d 622.) The trial court acted properly.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.\nJudgment affirmed.\nWHITE, P.J., and FREEMAN, J., concur.", "type": "majority", "author": "JUSTICE McNAMARA" } ], "attorneys": [ "Philip F. Maher & Associates, of Chicago (Philip F. Maher and Stephen E. McLean, of counsel), for appellant.", "James K. Hortsman, Barry L. Kroll, J. Scott Myers, and Lloyd E. Williams, Jr., all of Williams & Montgomery, Ltd., of Chicago, for appellees." ], "corrections": "", "head_matter": "RALPH TOMASOVIC, Plaintiff-Appellant, v. AMERICAN HONDA MOTOR COMPANY, INC., et al., Defendants-Appellees.\nFirst District (3rd Division)\nNo. 87\u20141141\nOpinion filed June 15, 1988.\nPhilip F. Maher & Associates, of Chicago (Philip F. Maher and Stephen E. McLean, of counsel), for appellant.\nJames K. Hortsman, Barry L. Kroll, J. Scott Myers, and Lloyd E. Williams, Jr., all of Williams & Montgomery, Ltd., of Chicago, for appellees." }, "file_name": "0979-01", "first_page_order": 1001, "last_page_order": 1014 }