{ "id": 2492150, "name": "EDITH JUANITA BROWN, Adm'r of the Estate of Clearthis Knox, Jr., Deceased, Plaintiff-Appellee, v. ARCO PETROLEUM PRODUCTS COMPANY et al., Defendants-Appellants", "name_abbreviation": "Brown v. Arco Petroleum Products Co.", "decision_date": "1989-11-22", "docket_number": "No. 1\u201487\u20143343", "first_page": "563", "last_page": "592", "citations": [ { "type": "official", "cite": "195 Ill. App. 3d 563" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "468 N.E.2d 1228", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "102 Ill. 2d 505", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3156104 ], "opinion_index": 0, "case_paths": [ "/ill-2d/102/0505-01" ] }, { "cite": "499 N.E.2d 1373", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "114 Ill. 2d 107", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542407 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-2d/114/0107-01" ] }, { "cite": "515 N.E.2d 105", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "157 Ill. App. 3d 1036", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3544148 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/157/1036-01" ] }, { "cite": "158 N.E.2d 63", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "16 Ill. 2d 442", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2762188 ], "weight": 2, "pin_cites": [ { "page": "453" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/16/0442-01" ] }, { "cite": "370 N.E.2d 627", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "55 Ill. App. 3d 50", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3411216 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/55/0050-01" ] }, { "cite": "242 N.E.2d 237", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "41 Ill. 2d 236", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853699 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-2d/41/0236-01" ] }, { "cite": "353 N.E.2d 684", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "41 Ill. App. 3d 276", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2491145 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/41/0276-01" ] }, { "cite": "211 N.E.2d 253", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill. 2d 326", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2886822 ], "weight": 2, "pin_cites": [ { "page": "336" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/33/0326-01" ] }, { "cite": "476 N.E.2d 1232", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "132 Ill. App. 3d 408", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3442636 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/132/0408-01" ] }, { "cite": "387 N.E.2d 426", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "69 Ill. App. 3d 336", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3240210 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/69/0336-01" ] }, { "cite": "417 N.E.2d 1322", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "84 Ill. 2d 186", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3045513 ], "weight": 2, "pin_cites": [ { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/84/0186-01" ] }, { "cite": "315 N.E.2d 63", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "20 Ill. App. 3d 656", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5347961 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/20/0656-01" ] }, { "cite": "400 N.E.2d 27", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "80 Ill. App. 3d 475", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3235166 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/80/0475-01" ] }, { "cite": "410 N.E.2d 249", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "87 Ill. App. 3d 911", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3181341 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/0911-01" ] }, { "cite": "498 N.E.2d 586", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "147 Ill. App. 3d 960", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3604451 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/147/0960-01" ] }, { "cite": "444 N.E.2d 1113", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "112 Ill. App. 3d 37", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3181366 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/1087-01" ] }, { "cite": "651 S.W.2d 249", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9933353 ], "opinion_index": 1, "case_paths": [ "/sw2d/651/0249-01" ] }, { "cite": "115 S.W. 260", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1983, "pin_cites": [ { "page": "262" } ], "opinion_index": 1 }, { "cite": "272 S.W.2d 198", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10189439 ], "year": 1909, "pin_cites": [ { "page": "207" } ], "opinion_index": 1, "case_paths": [ "/sw2d/272/0198-01" ] }, { "cite": "434 N.E.2d 793", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "105 Ill. App. 3d 681", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5472125 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/105/0681-01" ] }, { "cite": "463 N.E.2d 216", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 1 }, { "cite": "124 Ill. App. 3d 42", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3427450 ], "year": 1982, "opinion_index": 1, "case_paths": [ "/ill-app-3d/124/0042-01" ] }, { "cite": "510 N.E.2d 1066", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 1 }, { "cite": "157 Ill. App. 3d 649", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3543765 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/ill-app-3d/157/0649-01" ] }, { "cite": "411 N.E.2d 19", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "89 Ill. App. 3d 35", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5536774 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/89/0035-01" ] }, { "cite": "211 N.E.2d 253", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "33 Ill. 2d 326", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2886822 ], "pin_cites": [ { "page": "336" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/33/0326-01" ] }, { "cite": "521 N.E.2d 1245", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1251" } ], "opinion_index": 2 }, { "cite": "167 Ill. App. 3d 772", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3471455 ], "pin_cites": [ { "page": "782" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/167/0772-01" ] }, { "cite": "364 N.E.2d 650", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "656" } ], "opinion_index": 2 }, { "cite": "503 N.E.2d 1072", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1076" } ], "opinion_index": 2 }, { "cite": "151 Ill. App. 3d 1082", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3539475 ], "pin_cites": [ { "page": "1087-88" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/151/1082-01" ] }, { "cite": "479 N.E.2d 1000", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1004" } ], "opinion_index": 2 }, { "cite": "133 Ill. App. 3d 982", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3530138 ], "pin_cites": [ { "page": "988" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/133/0982-01" ] }, { "cite": "170 N.E.2d 564", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "568" } ], "opinion_index": 2 }, { "cite": "20 Ill. 2d 548", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2737854 ], "pin_cites": [ { "page": "554" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/20/0548-01" ] }, { "cite": "496 N.E.2d 1116", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1122" } ], "opinion_index": 2 }, { "cite": "146 Ill. App. 3d 404", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3572962 ], "pin_cites": [ { "page": "413" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/146/0404-01" ] }, { "cite": "356 N.E.2d 779", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "786" } ], "opinion_index": 2 }, { "cite": "64 Ill. 2d 543", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5429856 ], "pin_cites": [ { "page": "556" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/64/0543-01" ] }, { "cite": "301 N.E.2d 303", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "305" } ], "opinion_index": 2 }, { "cite": "54 Ill. 2d 498", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2933696 ], "pin_cites": [ { "page": "501" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/54/0498-01" ] }, { "cite": "211 N.E.2d 253", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 2 }, { "cite": "33 Ill. 2d 326", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2886822 ], "opinion_index": 2, "case_paths": [ "/ill-2d/33/0326-01" ] }, { "cite": "417 N.E.2d 1322", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 2 }, { "cite": "84 Ill. 2d 186", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3045513 ], "opinion_index": 2, "case_paths": [ "/ill-2d/84/0186-01" ] }, { "cite": "49 Ill. App. 3d 809", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5638049 ], "pin_cites": [ { "page": "817" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/49/0809-01" ] } ], "analysis": { "cardinality": 1948, "char_count": 72492, "ocr_confidence": 0.758, "pagerank": { "raw": 1.8429818060925644e-07, "percentile": 0.7224237783747238 }, "sha256": "f8cae8ed6dad6a90d4ab40724b6a05c13640ee66eb32b9dc6b279588c65d1d58", "simhash": "1:13a83c86be4f8de8", "word_count": 11991 }, "last_updated": "2023-07-14T21:36:46.192333+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "EDITH JUANITA BROWN, Adm\u2019r of the Estate of Clearthis Knox, Jr., Deceased, Plaintiff-Appellee, v. ARCO PETROLEUM PRODUCTS COMPANY et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE WHITE\ndelivered the opinion of the court:\nDefendants, Arco Petroleum Products Company (Arco) and Kenneth Roland, appeal from a jury verdict awarding $2 million in damages to the estate of Clearthis Knox. Defendants argue that the judgment should be reversed because they were prejudiced and denied a fair trial by erroneous rulings made in the trial court and by improprieties in plaintiff\u2019s counsel\u2019s impeachment of witnesses and in his closing arguments. In the alternative, defendants argue that the jury's award of damages was excessive and should be reduced.\nClearthis Knox, decedent, was killed on July 28, 1981, when his car collided with a tanker truck owned by Arco and driven by Roland. The accident occurred in Elk Grove Village at the intersection of Busse Highway and Marathon Road. Marathon Road is a private street leading to a Marathon oil terminal, which is used by Marathon and Arco drivers to refuel their tankers. In 1981, there were no traffic signals at the intersection but there was a stop sign on Marathon Road a few feet east of Busse.\nOn the night of the accident, Roland refueled his truck and left the Marathon terminal. Roland then began travelling west on Marathon Road, toward Busse Highway. Decedent, who was travelling north on Busse, struck Roland\u2019s truck as it pulled into the intersection and crossed the northbound lanes of the highway. Decedent was killed instantly. An autopsy performed on decedent revealed a blood-alcohol level of .155, Vh times the legal limit, and a bile-alcohol level of .140.\nOn February 18, 1982, Edith Brown, administrator of decedent\u2019s estate, filed this wrongful death action against defendants, seeking $1.5 million in damages. A jury found for plaintiff, returning a verdict in the amount of $2 million, but because the jury also found that plaintiff was 10% responsible for the accident, the verdict was reduced to $1.8 million.\nIn their appeal, defendants contend that the judgment should be reversed due to the number of trial errors that occurred and because of the many instances of improper conduct on the part of plaintiffs counsel.\nIt is well settled that a judgment should be reversed because of error only when it appears that the error affected the result of the trial. (Khatib v. McDonald (1980), 87 Ill. App. 3d 1087, 410 N.E.2d 266; Chloupek v. Jordan (1977), 49 Ill. App. 3d 809, 564 N.E.2d 650.) In reviewing a jury\u2019s verdict, an appeals court need not determine that the record is free from error (Karsten v. McCray (1987), 157 Ill. App. 3d 1, 509 N.E.2d 1367); rather, the court need only determine whether any error occurred which operated to the prejudice of a party or which unduly affected the outcome (Karsten v. McCray (1987), 157 Ill. App. 3d 1, 509 N.E.2d 1367; Stromquist v. Burlington Northern, Inc. (1983), 112 Ill. App. 3d 37, 444 N.E.2d 1113; Chloupek v. Jordan (1977), 49 Ill. App. 3d 809, 564 N.E.2d 650). Our review of the verdict before us leads us to conclude that the trial court\u2019s judgment must be reversed and remanded for a new trial.\nDefendants have presented a long list of alleged errors and instances of improper conduct by plaintiff\u2019s counsel. Defendants assert that the first instance of improper conduct occurred before trial, when plaintiff\u2019s counsel asked a potential juror if he knew any of the 150 attorneys at defendant\u2019s law firm. Defendants contend that their motion for a mistrial should have been granted since counsel\u2019s statement was extremely prejudicial and suggested an unfair financial advantage on the part of defendants.\nThe transcript of the voir dire shows that at the start of jury selection, the trial court addressed the entire venire, asking them if they knew any of the parties or their attorneys. The court then questioned the jurors individually, asking each if he knew any of the parties, the attorneys, or their law firms. Thus, it is clear that plaintiff\u2019s counsel\u2019s statement served no purpose, except to draw attention to the size of defendants\u2019 law firm, and was highly improper. However, an objection immediately was made by defendants\u2019 counsel and, during a sidebar conference, the trial court instructed plaintiff\u2019s counsel to refrain from making such remarks. Although we find no abuse of discretion in the trial court\u2019s denial of defendants\u2019 motion for a mistrial at this point (see Anderson v. Chesapeake & Ohio Ry. Co. (1986), 147 Ill. App. 3d 960, 498 N.E.2d 586; Benuska v. Dahl (1980), 87 Ill. App. 3d 911, 410 N.E.2d 249), we agree that the comment when combined with other errors that occurred in the proceedings served to deprive defendants of a fair trial.\nIncluded among the errors alleged by defendants are the trial court\u2019s action in allowing plaintiff\u2019s counsel to question Arco\u2019s maintenance superintendent, Richard Miriani, about the unavailability of maintenance and repair records relating to the accident; the court\u2019s restriction of defendants\u2019 cross-examination of Thad Aycock, plaintiff\u2019s reconstruction expert, based on the Dead Man\u2019s Act (Ill. Rev. Stat. 1981, ch. 110, par. 8\u2014201); the court\u2019s action in allowing plaintiff\u2019s counsel to read into the record irrelevant matter from the statement of Anwar Younan, one of several witnesses who arrived on the scene shortly after the accident; and the court\u2019s use of the Dead Man\u2019s Act to exclude testimony by Kenneth Roland.\nWe find no error in plaintiff\u2019s counsel\u2019s cross-examination of Richard Miriani.\nIn Terracina v. Castelli (1979), 80 Ill. App. 3d 475, 400 N.E.2d 27, and Foerster v. Illinois Bell Telephone Co. (1974), 20 Ill. App. 3d 656, 315 N.E.2d 63, cases cited by defendants in support of their claim that the cross-examination was improper, this court held that defense counsel\u2019s comments in closing arguments, implying that plaintiffs\u2019 counsel had ulterior motives in failing to produce certain evidence, were improper and had no basis in the evidence. We find that these cases are inapplicable.\nIn the present case, Miriani testified on direct examination that Arco had a policy of retaining records for only a 12- or 13-month period. On cross-examination, plaintiff\u2019s counsel questioned whether this policy also applied in cases of accidents, where it was possible that the records might be needed in the future. We believe counsel\u2019s questions were reasonable, and we cannot agree with defendants\u2019 assertion that the questions were intended to insinuate that Arco had intentionally destroyed material evidence.\nHowever, on the issue of defendants\u2019 questioning of plaintiff\u2019s reconstruction expert, Thad Aycock, we agree with defendants\u2019 contentions, and we find that the trial court improperly limited their cross-examination.\nDefendants attempted to question Aycock about the materials he relied upon in reconstructing the accident. Following an objection by plaintiff, the trial court ruled that defendants could not ask whether Aycock considered statements made by Roland in reaching his conclusions.\nAn expert witness may disclose the underlying facts or data which form the basis for his opinion, even if this evidence is otherwise admissible. (See Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322.) In Wilson, the supreme court pointed out that the burden is on an adverse party during cross-examination to elicit the facts underlying the expert opinion. 84 Ill. 2d at 194.\nThe dissent contends that \u201c[i]t is improper for counsel to ask questions in front of the jury on cross-examination, which by innuendo may detract from a witness\u2019 testimony, when there is no good-faith intention to follow up with proof of the facts to which counsel alludes,\u201d and adds that \u201c[t]he practice of offering matters in the presence of the jury that counsel knows to be inadmissible, in a manner calculated to elicit objections and create an appearance of concealment on the part of opposing counsel, must not be condoned.\u201d 195 Ill. App. 3d at 580.\nHere, however, defendants were not \u201coffering matters,\u201d they simply were trying to determine what information Aycock took into consideration in reaching his conclusions. While it is true that defendants could not read out specific statements in Roland\u2019s deposition and ask whether Aycock considered each, defendants were entitled to inquire whether Aycock took the deposition into consideration. Further, if Aycock testified that he had considered the deposition, defendants were entitled to disclose to the jury the portions thereof that were considered.\nPlaintiff contends that no error occurred because the record shows that Aycock did not consider Roland\u2019s statement. This contention is based on a statement made during a sidebar conference by plaintiff\u2019s counsel and, clearly, such a statement cannot be relied upon as establishing what materials Aycock considered in forming his opinions.\nWe find that the trial court also erred in allowing certain portions of Anwar Younan\u2019s statement to be read into evidence. On direct examination, Younan testified that when he arrived at the scene of the accident, he saw no lights on the truck. On cross-examination, defendants\u2019 counsel impeached Younan\u2019s testimony with a prior statement made December 17, 1981, in which Younan said that the truck had lights on the bottom of the trailer and on each end, but none on the top. Defendants later called Raymond Eastridge, the court reporter who transcribed Younan\u2019s December 1981 statement, to testify to the accuracy of the transcript. During plaintiff\u2019s cross-examination of Eastridge, the trial court allowed plaintiff\u2019s counsel to read into evidence a portion of Younan\u2019s statement in which he said that \u201cnormally,\u201d trucks would have lights on top. We agree with defendants\u2019 contention that this was error.\nAlthough plaintiff argues that the admission of this portion of Younan\u2019s statement was necessary to place the other portions of the statement in context, we find that this was not the case. In a statement made six months after the accident, Younan claimed that the truck had lights on the bottom of the trailer and on each end. This statement was used at trial to impeach Younan\u2019s testimony that he saw no lights on the truck when he arrived at the scene of the accident. Admission of the portion of the statement in which Younan said that trucks normally had lights on the top did not serve to complete or rehabilitate Younan\u2019s testimony, nor did it alter the fact that Younan\u2019s trial testimony was contradicted by his earlier statement. Rather, the statement served only to create the inference that Roland in some way had deviated from what was normal, and absent any foundation therefor, it was error to admit the statement.\nDefendants\u2019 next assertion of error concerns the trial court\u2019s application of the Dead Man\u2019s Act to limit the testimony of Kenneth Roland.\nPrior to trial, the trial court granted a motion in limine filed by plaintiff, pursuant to the Dead Man\u2019s Act, seeking to prohibit defendant Roland from testifying about anything that occurred after he left the Marathon terminal. Defendants contend that the trial court erred in using the Dead Man\u2019s Act to restrict Roland\u2019s testimony. They contend that plaintiff failed to provide any foundation in support of her motion to exclude Roland\u2019s testimony, that the trial court\u2019s application of the Act was too broad, and that Roland should have been allowed to testify regarding his actions as he drove down Marathon Road until he encountered decedent at the intersection.\nThe Dead Man\u2019s Act provides that in the trial of any action in which any party sues or defends as the representative of a deceased person, no adverse person may testify on his own behalf to any conversation with the deceased or to any event which took place in the presence of the deceased. The purpose of the Act is to bar only that evidence which the deceased could have refuted. Malavolti v. Meridian Trucking Co. (1979), 69 Ill. App. 3d 336, 387 N.E.2d 426.\nHere, the \u201cevent\u201d in question is the accident, and it is clear that the trial court properly barred Roland from testifying concerning the details of the collision. In addition, in light of testimony at trial that the stop sign on Marathon Road was visible from Busse Highway, the trial court properly prevented Roland from testifying as to whether he stopped at the stop sign before.entering the intersection. However, statements in the record also indicated that the Marathon terminal was located at least one block from Busse Highway, and there was no evidence whatsoever that a person travelling northbound on Busse would be able to observe a vehicle leave the terminal, nor was there any evidence of when a vehicle travelling west on Marathon would be visible from Busse Highway. In the absence of evidence establishing that decedent would have observed and been able to testify to Roland\u2019s actions before reaching the stop sign, it was error for the trial court to bar that portion of Roland\u2019s testimony.\nAlthough we find that the trial court\u2019s application of the Act was too broad, we do not believe any prejudice resulted from the trial court\u2019s action. What additional testimony Roland would have given to establish that he exercised due care had he not been precluded from testifying about his actions after leaving the terminal and before reaching the stop sign is not apparent from the record. However, Roland was allowed to testify concerning Arco\u2019s maintenance and safety standards and as to his own safety inspections performed before and after each day\u2019s shift. Roland also testified that there was a five-mile-per-hour speed limit on Marathon Road, which was strictly enforced, and that on the night of the accident, the lights on his truck were on before he left the Marathon terminal. Given the short length of time involved and the necessarily limited nature of the testimony Roland could have given, we do not believe the barred testimony would have materially affected the result. Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 476 N.E.2d 1232.\nDefendants argue that the additional testimony was needed to dispel the impression created by improper testimony from one of plaintiff\u2019s witnesses concerning the custom and usage of unspecified other truck drivers using Marathon Road. In the plaintiff\u2019s case in chief, Willie Ridley, a friend of decedent\u2019s, testified about the manner in which trucks leaving the Marathon terminal entered the Busse Highway-Marathon Road intersection. Defendants\u2019 objection to the testimony was sustained and the testimony was stricken. However, plaintiff\u2019s counsel subsequently made several more attempts to elicit testimony from Ridley about the manner in which trucks entered the intersection before the trial court finally instructed him to discontinue the line of questioning and admonished the jury to disregard the testimony. We agree that there was no foundation for Ridley\u2019s testimony and we believe that counsel\u2019s actions were an example of what the dissent refers to as \u201cthe practice of offering matters in the presence of the jury that counsel knows to be inadmissible, in a manner calculated to elicit objections and create an appearance of concealment on the part of opposing counsel.\u201d 195 Ill. App. 3d at 580.\nDefendants\u2019 final assertions of error concern the cross-examination of their medical witnesses on the issue of decedent\u2019s intoxication. Defendants contend that the trial court committed reversible error when it allowed plaintiff\u2019s counsel to impeach the medical witnesses using materials that were not established as authoritative.\nOn two occasions during his cross-examination of Dr. Yuksel Konacki, the assistant medical examiner who performed the autopsy on decedent, plaintiff\u2019s counsel read statements from an unidentified text and asked Konacki if he agreed with them. The statements read concerned \u201cpassive alcohol diffusion,\u201d a theory that alcohol present in the stomach at death diffuses into adjacent tissues and organs, causing a high level of alcohol in those organs that is not representative of the level of alcohol present in circulating blood. When defendants objected to plaintiff\u2019s counsel\u2019s actions, the trial court noted that a lawyer could question an expert from a learned treatise and reserved its ruling pending some showing that there was a scientific opinion on the subject. Plaintiff\u2019s counsel never identified the text to Konacki nor did counsel ask Konacki whether he considered the theory authoritative.\nSubsequently, defendants filed a motion in limine seeking to prevent plaintiff from cross-examining witnesses from a text without identifying it and allowing the witness an opportunity to say that it was or was not authoritative. Although this motion was granted, plaintiff\u2019s counsel, when cross-examining another medical witness, again read from a text and asked the witness if he agreed with what was read without identifying the text or allowing the witness to state whether he considered it authoritative.\nIn Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253, the Illinois Supreme Court stated that expert witnesses may be cross-examined as to their views of recognized authorities expressed in treatises or periodicals written for professional colleagues. The competence of the author of such a treatise or periodical can be established only by the testimony of a witness expert in the subject or by the trial judge taking judicial notice thereof. Darling, 33 Ill. 2d at 336.\nIn the present case, the materials used by plaintiff\u2019s counsel in cross-examining defendant\u2019s medical witnesses were never identified, the witnesses were not questioned concerning the author\u2019s competence, judicial notice was not taken of the author\u2019s competence, and plaintiff called no witnesses of her own to establish that the materials were authoritative. Therefore, it was error to permit the use of the materials. See People v. Behnke (1976), 41 Ill. App. 3d 276, 353 N.E.2d 684.\nThis error was compounded when the trial court, over defendants\u2019 objections, allowed plaintiff\u2019s counsel to argue the passive alcohol diffusion theory in his summation before the jury. Plaintiff presented no witnesses to establish that passive alcohol diffusion was possible, and the only evidence of the theory was the statements read by plaintiff\u2019s counsel from the unidentified text during his cross-examination of Dr. Konacki.\nFurther, when plaintiff\u2019s counsel cross-examined two other medical witnesses about the passive alcohol diffusion theory, one replied that there was no scientific data to support the theory and that he did not consider it authoritative. The other witness stated that the hypothesis was not well received in the scientific and medical community.\nIn light of plaintiff\u2019s failure to present any evidence establishing the theory, we find that it was error for the trial court to allow plaintiff\u2019s counsel to argue the theory in his closing arguments.\nDefendants argue that the cumulative effect of this and the other errors that occurred during the proceedings served to deprive them of a fair trial. We agree. We also agree that the record fails to provide a basis for the jury\u2019s $2 million award and that the errors occurring at trial may have resulted in the jury\u2019s allocation of only 10% comparative negligence to decedent.\nAs we stated above, a judgment should be reversed because of error only when the error prejudices a party or unduly affects the outcome of the trial. (Khatib v. McDonald (1980), 87 Ill. App. 3d 1087, 410 N.E.2d 266; Chloupek v. Jordan (1977), 49 Ill. App. 3d 809, 564 N.E.2d 650.) In the present case, we believe the repeated attempts by plaintiff\u2019s counsel to elicit improper testimony about the manner in which trucks using Marathon Road entered the intersection, the improper admission of the statement of Anwar Younan concerning what was \u201cnormal\u201d for trucks, the failure of the trial court to allow defendants to cross-examine Thad Aycock concerning the basis for his expert opinion, the improper use by plaintiff\u2019s counsel of unidentified authority to cross-examine medical witnesses, and counsel\u2019s improper closing arguments resulted in prejudice to defendants.\nOn the issue of the amount of the damages awarded, it is well settled that the award of damages in a wrongful death action is within the discretion of the jury. (Flynn v. Vancil (1968), 41 Ill. 2d 236, 242 N.E.2d 237; Long v. Bennett (1978), 55 Ill. App. 3d 50, 370 N.E.2d 627.) However, the jury\u2019s discretion is not without limitation. (Long v. Bennett (1978), 55 Ill. App. 3d 50, 370 N.E.2d 627.) In reviewing a jury\u2019s award of damages, a court has an obligation to carefully scrutinize the record to determine whether the amount of the verdict is so large as to indicate passion and prejudice. Lau v. West Towns Bus Co. (1959), 16 Ill. 2d 442, 158 N.E.2d 63.\nThis action was brought on behalf of decedent\u2019s parents, who live in Kansas City, and his married sister, who lives in Texas. When a wrongful death action is brought for lineal next of kin, the law presumes substantial pecuniary loss arising from the relationship alone. (Dotson v. Sears, Roebuck & Co. (1987), 157 Ill. App. 3d 1036, 515 N.E.2d 105.) In the present case, the jurors were informed of this presumption and told that it did not extend to decedent\u2019s sister. The jurors were also instructed that in determining pecuniary loss they could consider money, goods, and services decedent had contributed to his survivors and was likely to have contributed in the future; decedent\u2019s age, sex, health, and other personal characteristics; and the relationship between decedent and his parents.\nWhile decedent\u2019s sister did not testify, there was evidence that decedent enjoyed a normal, warm and loving relationship with his parents, that he visited them two to four times a year, that they exchanged gifts on Christmas and birthdays, and that decedent occasionally gave his parents cash gifts of $100 or less. Although this evidence served to buttress the presumption that decedent\u2019s parents suffered substantial pecuniary loss upon the death of their child (see Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 499 N.E.2d 1373; Bullard v. Barnes (1984), 102 Ill. 2d 505, 468 N.E.2d 1228), we do not believe that it provided a sufficient basis for the jury\u2019s verdict of $2 million. Given the lack of any evidence to support an award of this size, we must conclude the amount of the award indicates that it was the result of passion and prejudice. Lau v. West Towns Bus Co., 16 Ill. 2d at 453.\nIn conclusion, we find that the cumulative effect of the errors occurring at trial served to prejudice defendant. We also find that the record lacked any evidence justifying an award of $2 million and that the amount of the award precludes a finding that the errors occurring at trial did not affect both the jury\u2019s award of damages and its allocation of negligence. Therefore, the judgment of the circuit court of Cook County is reversed and the cause remanded for a new trial.\nReversed and remanded.", "type": "majority", "author": "JUSTICE WHITE" }, { "text": "JUSTICE FREEMAN,\nspecially concurring:\nI agree with Justice White\u2019s determination that various errors committed at trial deprived defendants of a fair trial on the issue of liability. However, I write separately because that determination obviates the need to address the alleged excessiveness of the damages awarded in this case. The determination that defendants were denied a fair trial on the issue of liability necessarily requires a new trial on the issue of damages as well.\nI agree with Justice White that the trial court improperly limited defendants\u2019 cross-examination of plaintiff\u2019s reconstruction expert, Thad Aycock, in prohibiting them from asking whether he had considered any of defendant Roland\u2019s statement in forming his opinion as to the cause of the accident. However, I do not believe we need go so far as to conclude that, had defendants been allowed to ask that question, they would also have been entitled to disclose to the jury the portions of Roland\u2019s deposition that Aycock considered, if any. I have that belief, not because it would have been improper to disclose to the jury the specific statements by Roland upon which Aycock relied, if any, but because no one knows, without engaging in pure speculation and conjecture, what defendants would have subsequently asked had they been allowed to ask that first question. As such, the dissent\u2019s conclusion that \u201cdefense counsel wanted to cross-examine Aycock about Roland\u2019s statements in the presence of the jury solely for the purpose of having the jury hear evidence which was not admissible\u201d (195 Ill. App. 3d at 579) is a paragon of speculation and conjecture or, to use the dissent\u2019s own colorful phrase, \u201ca figment of an unwarranted presumption\u201d (195 Ill. App. 3d at 578).\nThe support the dissent finds for that conclusion in defense counsel\u2019s rejection of the opportunity to question Aycock, outside the presence of the jury, regarding the basis of his opinion is ephemeral, at best. Having been denied their right under Wilson v. Clark to reveal to the jury what Aycock had and has not considered in forming his opinion, defense counsel acted eminently reasonably in declining the futile gesture of making that inquiry outside the jury\u2019s presence. Even had the defense learned through such questioning that Aycock had not relied on Roland\u2019s statements, the only way to inform the jury of that fact was through Aycock\u2019s testimony. Rather than attempting to detract, by innuendo, from Aycock\u2019s testimony, without a good-faith intention to prove up \u201cthe facts\u201d to which counsel supposedly alluded, as the dissent so poetically and yet so inaptly puts it, defendants were acting well within their rights to reveal to the jury that Aycock had not considered Roland\u2019s statements in forming his opinion. Finally, the dissent\u2019s reliance on the fact that Aycock did not, in fact, base his opinion on anything stated by Roland to find no error misses the point that the defense was entitled to reveal that fact to the jury as a means of impeaching Aycock\u2019s opinion.\nI also agree with Justice White that the trial court abused its discretion in allowing into evidence the statement of Anwar Younan that \u201cnormally\u201d trucks would have lights on the top. Even assuming, as the dissent argues, that the rest of Younan\u2019s deposition testimony relating to the lighting on Roland\u2019s trucks was admissible under the rule of completeness, the specific testimony that \u201cnormally\u201d trucks would have lights on the top and that defendant Roland\u2019s did not was inadmissible.\nThat testimony essentially amounted to testimony that it was the custom in the trucking industry to have lights on top of trucks such as that involved in the accident in this case and that defendant Roland\u2019s truck did not comply with that standard. Such testimony by Younan, however, was inadmissible due to the failure of plaintiff to establish any foundation therefor, i.e., to make any showing that Younan was sufficiently familiar, as an expert or otherwise, with the trucking industry that he could testify competently to its customary practices. Cf. Crabtree v. St. Louis-San Francisco Ry. Co. (1980), 89 Ill. App. 3d 35, 411 N.E.2d 19 (expert witness not acquainted with defendant\u2019s operations could properly testify to custom and practice of railroad industry in moving and lifting kegs of railroad spikes where his testimony demonstrated familiarity with the custom and practice of three railroads in such regard).\nUnlike the situation in Crabtree, there was no showing here of Younan\u2019s familiarity with the trucking industry to render him competent to testify as to its normal customs and practices. Contrary to the dissent\u2019s implication in noting that Younan had been a truck driver, I do not believe that fact alone rendered him competent to testify to the normal customs and practices of the trucking industry. The trial court erred for this additional reason in allowing Younan\u2019s statement into evidence that \u201cnormally\u201d trucks have lights on the top.\nI further agree with Justice White that it was reversible error to allow plaintiff\u2019s counsel to use an unidentified text by an unidentified author to cross-examine defendants\u2019 experts. The precise rule stated in Darling is that experts may be cross-examined \u201cas to the views of recognized authorities, expressed in treatises or periodicals written for professional colleagues. [Citation.] The author\u2019s competence is established if the judge takes judicial notice of it, or if it is established by a witness expert in the subject.\u201d Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 336, 211 N.E.2d 253.\nImplicit in the rule stated in Darling, for the use of a treatise in cross-examination of an expert, is the requirement that the publication being so used and its author be identified to the witness and the trial court. That requirement is implicit in the rule because, without their identification, it could never be determined at trial whether the authority being so used is \u201crecognized\u201d and whether its author is competent. As such, the dissent\u2019s conclusion that Darling was inapplicable in this case, where plaintiff\u2019s counsel indisputably read from some unidentified publication by some equally unidentified author in cross-examining defendant\u2019s experts, because he did not identify the work from which he was reading but merely asked general propositions is sophistry. It is precisely to preclude counsel from impeaching expert witnesses in the manner attempted here that the rule in Darling exists. The dissent\u2019s rationalization of the conduct of plaintiff\u2019s counsel in this regard puts a premium on subterfuge and chicanery. No court and no judge at any level should condone such conduct by counsel regardless of the ends sought to be achieved by doing so.\nI further agree with Justice White that the trial court\u2019s error in allowing plaintiff\u2019s counsel to argue the passive alcohol diffusion theory before the jury compounded the error in allowing him to cross-examine defendants\u2019 experts without identifying the work from which he was reading or its author. Although the dissent deftly sidesteps the Darling issue, its justification of counsel\u2019s conduct in this latter regard completely ignores a fundamental rule of trial procedure. That rule is that evidence used for impeachment cannot generally be used as substantive evidence. The rule applies to medical treatises used to impeach expert witnesses. (Piano v. Davison (1987), 157 Ill. App. 3d 649, 510 N.E.2d 1066; Mielke v. Condell Memorial Hospital (1984), 124 Ill. App. 3d 42, 463 N.E.2d 216; Fornoff v. Parke Davis & Co. (1982), 105 Ill. App. 3d 681, 434 N.E.2d 793.) Moreover, even accepting the dissent\u2019s characterization of the statements read by plaintiff\u2019s counsel as mere general propositions, it cannot be seriously contested that those statements were not substantive evidence of the assertions made therein, if not due to the failure of any of defendants\u2019 experts to accept their validity and to plaintiff\u2019s counsel\u2019s failure to identify the work and author quoted, then due to plaintiff\u2019s failure to prove up the statements through her own witnesses. In short, even conceding the testimony raising the possibility of errors in the post-mortem blood analysis, there was no substantive evidence tending to support plaintiff\u2019s theory of passive alcohol diffusion which counsel could have properly referred to in arguing to the jury.\nMoreover, Dr. Schaffer\u2019s mere concession that \u201cprobably there are a number of people\u201d who believe the theory of passive alcohol diffusion, upon which the dissent heavily relies to justify counsel\u2019s argument of the theory to the jury, is a slender thread which snaps under the tug of scrutiny. Dr. Schaffer also testified, when asked whether he knew of any authoritative literature supporting the passive alcohol diffusion theory:\n\u201cThere have been numerous citations, and they have not been peer reviewed and do not appear in the literature, but they appear as manuscripts written by certain experts that testify in these related matters dealing with the phenomenon of passive diffusion or some type of diffusion process whereby after death the alcohol leaves the stomach contents and diffuses through the rest of the body, and then this is what you pick up when you measure an alcohol determination.\nThere has never been any scientific data to support such, and for that reason, I personally do not consider it authoritative.\u201d\nThus, Dr. Schaffer\u2019s testimony, in toto, provided little support, if any, for the theory of passive alcohol diffusion. In view of that fact and defendant\u2019s other experts\u2019 unequivocal rejection of the theory, Dr. Schaffer\u2019s mere concession that a number of unidentified people subscribed to the theory was insufficient evidentiary support to allow plaintiff\u2019s counsel to argue the theory to the jury as substantive evidence, especially in view of plaintiff\u2019s failure to prove up the theory through any witnesses of her own. In addition, there certainly was no evidentiary basis for counsel\u2019s argument that \u201cthere are articles out there\u201d supporting the passive alcohol diffusion theory.\nI believe that the last two related errors committed by plaintiff\u2019s counsel so prejudiced defendants that they alone warrant a new trial on liability and, thus, on damages. Moreover, I do not belleve that it can rationally be contested that all of the errors cited in Justice White\u2019s opinion and in this opinion cumulatively denied defendants a fair trial on all issues. However, given the errors infecting the jury\u2019s finding of liability, I do not believe we need address the issue of the excessiveness of the verdict.\nThe dissent has incorrectly attributed testimony of Dr. Hughes, defendants\u2019 neurophysiological expert, to Dr. Konacki, the pathologist who conducted the post-mortem examination of decedent, and testimony of Dr. Konacki to Dr. Hughes.\nThe requirements of identifying a treatise used in cross-examination as well as its author have long been recognized in the law. See Scneder v. Wabash R.R. Co. (Mo. 1954), 272 S.W.2d 198, 207; Gulf, C. & S. F. R. Co. v. Farmer (Tex. 1909), 115 S.W. 260, 262, overruled on other grounds Sanchez v. Schindler (Tex. 1983), 651 S.W.2d 249.", "type": "concurrence", "author": "JUSTICE FREEMAN," }, { "text": "JUSTICE RIZZI,\ndissenting:\nI dissent. I would affirm the judgment.\nThe majority first claims that there was error during the voir dire. Although the majority finds that the error was \u201chighly improper,\u201d it also finds that there was \u201cno abuse of discretion in the trial court\u2019s denial of defendants\u2019 motion for a mistrial on this point.\u201d While I believe that the majority\u2019s findings are inconsistent, I also believe that nothing improper occurred during the voir dire.\nThe law firm representing the defendants is Baker & McKenzie. During the voir dire, plaintiff\u2019s counsel asked one of the prospective jurors if she had heard of the law firm of Baker & McKenzie. Counsel then asked: \u201cDo you know any of the 150 attorneys that work there?\u201d No immediate objection was made, but defense counsel later made a motion for mistrial. The court denied the motion, and no further comment was made on the size of Baker & McKenzie. In my opinion, the trial court acted properly for several reasons.\nIn the first instance, I do not see how defendants were prejudiced merely because the jury knew that there are 150 attorneys working at Baker & McKenzie\u2019s Chicago office. Indeed, most large law firms, like Baker & McKenzie, promote and disseminate the fact that they are a large law firm, including the high number of attorneys that work at the firm. Large law firms cannot have it both ways, on the one hand promoting and disseminating the high number of attorneys that work at their firm, and on the other hand claiming that they are somehow prejudiced if a juror knows of the very facts that they themselves are promoting and disseminating. Surely, no one would conclude that if a juror knew that there are 150 attorneys working at Baker & McKenzie it would be grounds for disqualification. Yet, that conclusion is a logical extension of the majority\u2019s reasoning. Moreover, the fact that a large corporation like defendant Arco Petroleum Products Company is represented by a large law firm is hardly unexpected. Under the circumstances, I see no prejudice by plaintiff\u2019s counsel\u2019s question.\nIn the second instance, I do not believe that any error occurred. An element essential to the integrity of the jury process is that the parties to the litigation have a reasonable opportunity at the voir dire to ascertain that the fact-finding body is free from influence-producing relationships unfavorable to them. (Watson v. Fischbach (1973), 54 Ill. 2d 498, 501, 301 N.E.2d 303, 305.) In my opinion, the question asked by plaintiff\u2019s counsel was asked in this vein.\nDuring the course of their lives, the public hears the names of many law firms of varying sizes bandied about in all kinds of conversations and communications. However, it is fair to assume that at any particular time law firms have a nebulous identity to members of the public. Thus, if a prospective juror is asked if he or she knows any of the \u201c150 attorneys that work\u201d at a particular law firm, the size of the law firm may serve as an aide memoire and allow the prospective juror to let counsel know whether he or she in fact knows of any of the attorneys at the law firm representing the other side in the litigation. Thus, I believe that merely stating the number of attorneys that work at the law firm representing one of the litigants, in the manner that was done in this case during the voir dire, has a valid purpose.\nAccordingly, I believe that plaintiff\u2019s counsel\u2019s question was proper because it afforded the plaintiff a reasonable opportunity to ascertain whether the prospective juror might be free from influence-producing relationships unfavorable to the plaintiff. I also believe that the defendants were not prejudiced by the question. Moreover, the doctrine of de minimis non curat lex plainly applies if one believes error had occurred; the matter therefore cannot be part of a \u201ccumulative effect\u201d of errors which might have affected the trial. In my opinion, the majority\u2019s conclusion \u201cthat plaintiff\u2019s counsel\u2019s statement served no purpose, except to draw attention to the size of- defendants\u2019 law firm\u201d is a figment of an unwarranted presumption.\nThe majority next discusses the defendant\u2019s contention \u201cthat the trial court erred in using the Dead Man\u2019s Act to restrict Roland\u2019s testimony.\u201d On this point, I agree with the majority\u2019s belief that no \u201cprejudice resulted from the trial court\u2019s action.\u201d I also agree with the majority\u2019s conclusion: \u201cGiven the short length of time involved and the necessarily limited nature of the testimony Roland could have given, we do not believe the barred testimony would have materially affected the result.\nNext, the majority discusses the plaintiff\u2019s cross-examination of Richard Miriani. I agree with the majority\u2019s conclusion: \u201cWe find no error in plaintiff\u2019s counsel\u2019s cross-examination of Richard Miriani.\u201d\nThe majority next discusses the issue of defendants\u2019 questioning of plaintiff\u2019s reconstruction expert. The majority concludes: \u201c[W]e agree with defendants\u2019 contention that the trial court improperly limited their cross-examination. Defendants attempted to question Aycock about the materials he relied upon in reconstructing the accident. Following an objection by plaintiff, the trial court ruled that defendants could not ask whether Aycock considered statements made by Roland in reaching his conclusions. An expert witness may disclose the underlying facts or data which form the basis for his opinion, even if this evidence is otherwise inadmissible. (See Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322.) Therefore, defendants were entitled to determine whether Aycock took Roland\u2019s statements into consideration and the trial court erred when it ruled that the Dead Man\u2019s Act precluded defendants\u2019 questions.\u201d I disagree.\nThe record clearly shows that none of Aycock\u2019s opinions were based upon anything stated by Roland, but rather Aycock\u2019s opinions were based on his own visit to the scene. Thus, the trial court\u2019s order blocking cross-examination based upon Roland\u2019s statements to the police and in his deposition was proper. To me it is plain that defense counsel was not attempting to cross-examine Aycock about Roland\u2019s statements for the limited purpose of explaining the basis of his opinions, as would be permitted under Wilson v. Clark. Rather, defense counsel wanted to cross-examine Aycock about Roland\u2019s statements in the presence of the jury solely for the purpose of having the jury hear evidence which was not admissible. This is clearly demonstrated by the colloquy that occurred between the court and counsel:\n\u201cDEFENSE COUNSEL: Well, judge *** I\u2019m entitled to elicit admissions from him that, in fact, he was aware of other statements or information or material and that either he discounted those or didn\u2019t consider those. *** That\u2019s all part of the credibility of this witness, and it\u2019s all part of his modus operandi, what does he consider that he used, what did he specifically exclude in coming to these conclusions.\nTHE COURT: All right. Any reference to whether he considered anything that Mr. Roland may have said would create a problem, and if you insist on knowing this, I\u2019ll let you ask it outside the presence of the jury, whether or not he considered any of the matters that Mr. Roland may have said either to the police or in his deposition, but I will agree with [plaintiff\u2019s counsel] that we should not ask him whether he considered or made it in any way appear that he may have considered anything Mr. Roland said in front of the jury. That\u2019s my ruling.\nDEFENSE COUNSEL: Well, I\u2019m at a loss, your honor. I don\u2019t understand something. I\u2019m asking if there\u2019s something that he didn\u2019t consider.\nTHE COURT: Well, you\u2019re doing it indirectly. I would ask you not to refer to the deposition of Mr. Roland in front of the jury. If you want to find out, I\u2019ll bring him right back in here now. *** You can inquire in a different fashion, but I will now instruct you not to ask any questions concerning Roland\u2019s deposition or anything that Roland may have told to the police or to infer that this may have been considered. If you want to find it out, I\u2019ll let you do it outside the presence of the jury. That\u2019s my ruling.\u201d\nDefense counsel never accepted the court\u2019s invitation to question Aycock outside the presence of the jury. It is improper for counsel to ask questions in front of the jury on cross-examination, which by innuendo may detract from a witness\u2019 testimony, when there is no good-faith intention to follow up with proof of the facts to which counsel alludes. The practice of offering matters in the presence of the jury that counsel knows to be inadmissible, in a manner calculated to elicit objections and create an appearance of concealment on the part of opposing counsel, must not be condoned. When, as in the present case, a trial judge prevents such tactics from occurring in his or her courtroom the trial judge should be commended not reversed. I commend the trial judge here.\nThe majority also finds that \u201cthe trial court also erred in allowing certain portions of Anwar Younan's statement to be read into evidence.\u201d Anwar Younan is a cab driver and a former truck driver. He was one of the first persons to arrive at the accident scene. At trial, he testified that he saw no lights on the Arco tanker until he was nearly upon it. On cross-examination, defense counsel impeached Anwar Younan with the use of an unsigned court reporter\u2019s statement that had been previously taken of the witness. The following occurred:\n\u201cQ. Do you remember being asked this question and giving this answer:\nQ. No problem, with visibility?\nA. No. It was night time.\nQ. Did the truck have any lights?\nA. It had one over here and one over here.\nQ. You are indicating \u2014 you are saying the truck had lights on the bottom of the tanker and one on each end?\nA. Yes.\nQ. None on top?\nA. No.\nQ. Do you remember being asked those questions and giving those answers?\nA. Yes.\u201d\nAlthough Anwar Younan admitted at trial that he had made the previous answers to the questions that had been asked him, he testified that he did not remember the court reporter asking him the questions and he did not remember the court reporter. Defense counsel then called the court reporter to testify at trial to the same series of questions and answers that had been asked of and answered by Anwar Younan at trial. After this had been accomplished, plaintiff\u2019s counsel sought to inform the jury of the complete statement that Anwar Younan had given the court reporter relating to the lights on the truck. When plaintiff\u2019s counsel attempted to cross-examine the court reporter for that purpose, defense counsel objected and the following occurred outside the presence of the jury:\n\u201cPLAINTIFF\u2019S COUNSEL: First of all, there\u2019s [s-ic] multiple answers to his objection. Number one is I don\u2019t think this is impeaching. That\u2019s number one.\nTake a look at what he\u2019s saying over here. He says, no problem with visibility, no. And the court has heard this witness testify in court, and the court knows that there\u2019s a language problem with this witness generally.\nAnd keep in mind what he\u2019s saying over here. When he was asked at trial whether or not there were any lights on the side of the truck, he says, no, it was dim, he didn\u2019t see any.\nNow, over here at the statement, he says, \u2018It was nighttime, the truck didn\u2019t have too many lights on top.\u2019\nI don\u2019t know what that means. Certainly, it\u2019s too many lights on top. That\u2019s what he has written, okay. \u2018Did the truck have any lights? It had one over here and one over here.\u2019\nWell, I don\u2019t know what that means because one over here and one over here \u2014 and he doesn\u2019t say whether or not the lights are on or off by the way.\n* * *\nFirst of all, I think the whole context should be read to the jury, and not that portion. If it is impeaching, the whole context should come out, not just that portion that counsel likes the jury to hear.\nBecause if you read everything, in my opinion, it is completely consistent with his testimony here. There is no indication over here that he\u2019s saying anything which is inconsistent, and if there are inconsistencies, the inconsistencies are so minor that it doesn\u2019t amount to impeachment. Because you don\u2019t have direct answers and direct questions on the same issues that he talked about over \u2014 during the trial of the case.\nSo for those reasons, we think that the jury should hear the entire discussion as opposed to just part of them.\u201d\nThe trial court denied defense counsel\u2019s objection, and plaintiff\u2019s counsel completed his cross-examination of the court reporter as follows:\n\u201cQ. And were these also, these questions and answers, transcribed by you?\n\u2018Question: And none on top?\u2019\nThe answer was, \u2018No\u2019; is that correct?\nA. That\u2019s right.\nQ. And then another question, \u2018And normally there should be lights on top?\u2019 And the answer is, \u2018Yes\u2019?\nA. Yes.\nQ. And then he said, \u2018But this particular one didn\u2019t?\u2019 And he answered, \u2018No\u2019; is that correct?\nA. Right.\nQ. And then he said, \u2018Did you notice if the truck\u2019s headlights or taillights were on\u2019; is that correct?\nA. Yes, sir.\nQ. He said, \u2018Yes, the truck was still \u2014 I\u2019m sorry \u2014 the truck was running still until some guy told him to cut it off.\u2019 Was that the answer?\nA. Yes, sir, it was.\u201d\nThe basis for allowing plaintiff\u2019s counsel to complete his cross-examination of the court reporter was stated by the trial court as follows:\n\u201cTHE COURT: First, I believe that there is a basis for impeachment. The witness said there were no lights on the side of the truck. This appears to indicate that there were.\nWe have in the law regarding statements used for impeachment a principle known as the rule of completeness, where it is indicated where part of the statement is used for impeachment, if there are further questions on the same proposition which may shed light on that same general area, they can be brought out on redirect as part of rehabilitation.\nI do not agree with defense counsel that there is anything prejudicial or speculative about the question that would be\u2014 that would prevent the words, \u2018and normally there should be lights on the top.\u2019 If the witness is talking about seeing \u2014 that there is any basis in fact that the tankers normally or trucks normally have lights on the top, and that\u2019s what he\u2019s saying here, I don\u2019t think it\u2019s prejudicial, and particularly because the rest of his answer about this not having \u2014 it partially explains the impeachment.\nIn other words, it didn\u2019t have lights on the top, but it did on the bottom and so on. So it does help explain somehow, and I will not \u2014 I will hold that it is properly before the jury.\nThey can reasonably conclude that this is impeaching, and certainly, I will let them consider it for that purpose.\nBut I will under the rule of completeness allow you to ask a complete set of questions on the questions of lights even though whether he would \u2014 is familiar with tankers and knows there are lights on top might be a matter of speculation. But it is part of the complete answer, and I\u2019ll let it in.\u201d\nI believe the trial court acted within the bounds of its discretion in allowing plaintiff\u2019s counsel to complete his cross-examination of the court reporter. It is well established that if one party introduces part of an utterance or writing, the opposing party may introduce the remainder or so much thereof as is required to place that part originally offered in proper context so that a correct and true meaning is conveyed to the jury. (Lawson v. G.D. Searle & Co. (1976), 64 Ill. 2d 543, 556, 356 N.E.2d 779, 786.) Also, the admission of such evidence is within the discretion of the trial court. (Buczyna v. Cuomo & Son Cartage Co. (1986), 146 Ill. App. 3d 404, 413, 496 N.E.2d 1116, 1122.) Here, the record does not demonstrate that the trial court abused its discretion.\nI believe it is plain that it was within the trial court\u2019s discretion to allow plaintiff to put into evidence the complete statement of Anwar Younan to show that, when placed in its complete context, the statement indicated that there were no lights on the top of the Arco tanker. I therefore disagree with the majority that the trial court erred in allowing plaintiff to put into evidence the complete statement of Anwar Younan.\nThe majority next claims that the trial court committed error \u201cwhen it allowed plaintiff\u2019s counsel to impeach the medical witnesses using materials that were not established as authoritative.\u201d The majority relies upon the authority of Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253. The obvious errancy in what the majority has to say on the subject is that it is simply not applicable to this case. Plainly Darling is not applicable here.\nThe majority first refers to two occasions during the cross-examination of Dr. Yuksel Konacki. The record reflects that the following occurred on the two occasions:\n\u201cQ. If I understand you, then, correctly, if we took the three people that we talked about before, all right, and you gave them five beers, that would get them up to .155?\nA. Well, remember it was between five and six one after the other.\nQ. All right. One right after the other and the three people, one 16 years old, one who had been drinking all of their [sic] life and a person who is just a social drinker, you\u2019re saying that in your opinion all three people at .155 would be affected about the same; is that correct?\nA. You can predict that all three that there would be certain changes, and it is possible that one might be slightly more affected than the other. But in all three, you can have certain prediction of change.\nObviously, no two people in the world are going to have ex- \u25a0 actly the same reaction. But when .155 is achieved, then you can predict well that certain changes will occur.\nQ. Would you agree with this statement, sir \u2014 .\nMR. KARNES: Objection, your Honor. Absent identification of the document to have him put through to identify the\u2014\nTHE COURT: Well, it can be done either one of two ways. One is the way you mentioned. The other is if you want to ask a general question but where it does not appear that you\u2019re reading from a particular document, I\u2019ll permit it, the understanding being that before you could ask him a specific question from the document, there has to be some foundation that there is an authoritative source.\nSo you can ask him a general question if he agrees with the proposition. But before you can use a particular document, you\u2019d have to\u2014\nMR. FISHMAN: I\u2019m just going to ask him this question.\nTHE COURT: Sure.\nBY MR. FISHMAN:\nQ. Doctor, do you agree with this proposition: \u2018Individual differences in response and tolerance for alcohol vary so widely that one person may be incapacitated by less than the legal limit of alcohol goes while others show almost no response to a fairly high blood alcohol reading.\u2019 Do you agree with that?\nA. I agree with it only to the point of the visible changes that you might perceive in those individuals that, I repeat again, when you test the individual carefully, then there are repeated kinds of changes that you can predict, predictable changes.\nAnd I\u2019m referring now that what we went into in the past hour about the ability of some individuals over a time to camouflage the affect of alcohol on himself or herself.\nSome people are very good at that. But if you test them carefully as to their fine motor control, then that whole camouflage system disappears and breaks down.\nSo the variation that you\u2019re referring to is the ability of some people after drinking a lot over a long period of time to camouflage what the affects are.\nQ. Well, then, do you agree with this statement: \u2018Both an acquired tolerance for alcohol in individual genetic differences accounts for wide variations in response.\u2019\nMR. KARNES: Your Honor, you know my objection. Counsel is no longer paraphrasing but bringing up questions on his own and reading in the record when the doctor hasn\u2019t proven it to be authoritative or offered it as authoritative.\nTHE COURT: No. Again, the situation is he may ask him general propositions. And as long as he doesn\u2019t indicate that this is from some article or some authority, I will permit him to do so. So your objection is overruled.\nMR. KARNES: Thank you, your Honor.\nBY THE WITNESS:\nA. The genetic differences here, I think, are referring to the fact that one can inherit a tendency from previous family, mother and father, of the desire to take the alcohol and maybe even the ability to camouflage the affects of it.\u201d\nPlaintiff\u2019s counsel then moved on to another line of questioning.\nThe majority secondly refers to plaintiff\u2019s counsel \u201ccross-examining another medical witness.\u201d Although the majority does not identify the other medical witness by name, his name is Dr. John Hughes. The record reflects that the following occurred with respect to the cross-examination of Dr. John Hughes and what is discussed by the majority:\n\u201cQ. Doctor, can you just tell the Court and jury what the word \u2018osmosis\u2019 means?\nA. It is a diffusion of the fluids through the membranes in the body.\nQ. Through the what?\nA. Through the membranes.\nQ. Through the membranes?\nA. Through cell membranes.\nQ. Okay. It\u2019s \u2014 how does that happen?\nA. There might be some diffusion of the fluids through the membranes.\nQ. Now, if I understand correctly, if a person is dead, osmosis still goes on; is that right?\nA. I don\u2019t know, sir.\nQ. Well, if a person is dead, and they have alcohol in the stomach, isn\u2019t it correct, sir, that the alcohol will continue to go through the stomach wall into the surrounding cavity if there is liquid on the other side; isn\u2019t that right?\nA. I don\u2019t know, sir.\nQ. Isn\u2019t it correct, sir \u2014 have you ever studied forensic science on postmortem examinations?\nA. Yes.\nQ. When you did \u2014 when the autopsy that was performed on the blood alcohol, that would be the blood alcohol that you got out of the body at the time you got the blood alcohol out of the body; is that correct?\nA. I gave them that, the lab sample, the blood sample.\nQ. The blood sample, though\u2014\nA. It was taken after death, sir, certainly.\nQ. Sir, Doctor\u2014\nA. Yes, sir.\nQ. \u2014do you agree with this statement, fIf any alcoholic beverage is still present in the stomach during the time of death, it continues to diffuse into the adjacent tissues and organs from which it no longer is distributed throughout the body by circulating blood.\u2019 Do you agree with that statement?\nA. I don\u2019t know, sir.\nQ. You don\u2019t know, okay. Would you agree with this statement? \u2018With succeeding hours after death, blood drawn from such organs as the heart or any of its great vessels, if alcohol was present in the stomach when death occurred, will contain increasingly high levels of alcohol that are entirely unrepresentative of the level existing in the circulating blood.\u2019\nA. I don\u2019t know, sir.\u201d\nAs the record clearly shows, at no time during the cross-examination of Dr. Yuksel Konacki or Dr. John Hughes did plaintiff\u2019s attorney mention the name of any article, book or other expert. Thus, the learned treatise doctrine relating to cross-examination of expert witnesses has no application here, and defendants\u2019 objections were properly denied.\nI agree with the trial judge and his ruling when he stated: \u201cAgain, the situation is he may ask him general propositions. And as long as he doesn\u2019t indicate that this is from some article or some authority, I will permit him to do so. So your objection is overruled.\u201d Moreover, the scope of cross-examination rests within the discretion of the trial court, and the trial court\u2019s discretion should not be applied in a narrow or restricted manner with respect to experts who deal in opinions on matters normally not in the common knowledge and experience of laymen. (Muscarello v. Peterson (1960), 20 Ill. 2d 548, 554, 170 N.E.2d 564, 568.) Also, an exercise of discretion by the trial court on matters relating to cross-examination will not be disturbed on review unless there has been a clear showing of an abuse of discretion. (Martin v. Zucker (1985), 133 Ill. App. 3d 982, 988, 479 N.E.2d 1000, 1004.) Here, I do not find that the trial court abused its discretion during the cross-examination of Dr. Yuksel Konacki or Dr. John Hughes. Plainly, there is no clear showing of an abuse of discretion.\nThe majority next claims that the trial court erred with respect to plaintiff\u2019s closing argument to the jury. The majority states: \u201cIn his summation, plaintiff\u2019s counsel argued the passive alcohol diffusion theory, suggesting that the passage of blood through decedent\u2019s stomach after his death led to a \u2018false high\u2019 blood alcohol reading. Defendants objected to plaintiff\u2019s counsel\u2019s statements but their objection was overruled.\u201d The majority then concludes that \u201cit was error for the trial court to allow plaintiff\u2019s counsel to argue the theory in his closing arguments.\u201d I disagree.\nAt trial, the jury heard evidence from witnesses who were with Knox on the night of his death. They testified that Knox consumed no more than two beers. The same witnesses also testified that Knox was not in any way impaired at the time he left Willie Ridley\u2019s home. However, the jury also heard evidence consisting of a toxicology report stating that Knox\u2019s blood-alcohol level taken after his death indicated a concentration of .155 with a bile-alcohol reading of .14.\nTo resolve the conflict in the evidence, plaintiff cross-examined witnesses called by the defense to show that the alcohol readings did not accurately reflect Knox\u2019s consumption of alcohol immediately prior to his death. Plaintiff showed that although an accurate blood-alcohol analysis requires drawing blood from the heart, the pathologist could not recall the origin of the sample taken from Knox. The alcohol tests could also have been invalidated because of a rupture of the aorta which drained most of Knox\u2019s blood from his major blood vessels into the thoracic cavities. Any of these errors may have resulted in an erroneous calculation of Knox\u2019s alcohol concentration. In addition, Dr. Schaffer, the toxicologist, recognized that there is support for the belief that even after death, alcohol diffuses through the stomach. Although he did not subscribe to such an opinion, Dr. Schaffer stated: \u201cProbably there are a number of people who believe that. I\u2019m not exactly sure that I would agree necessarily with that statement.\u201d\nDuring plaintiff\u2019s counsel\u2019s closing argument, the following occurred:\n\u201cSo when he died, there was alcohol in his stomach. Now, what does that mean? It means that the alcohol was in his stomach when he\u2019s dead. Now, the question is, did the alcohol get out of the stomach \u2014 .\nDEFENSE COUNSEL: Objection, your Honor.\nTHE COURT: This is argument. There may not be any direct evidence that there was alcohol in his stomach, but I suppose that he can argue that there was based upon the facts of what took place at the \u2014 prior to the accident.\u201d\nPlaintiff\u2019s counsel then continued his argument by describing the theory, which Dr. Schaffer admitted has at least some support, that alcohol could have diffused from Knox\u2019s stomach into his blood to produce false alcohol concentrations. No text was read to the jury by plaintiff\u2019s counsel, and he did not argue anything that was not in evidence or a fair comment upon the evidence.\nI believe it is plain that when it came time for the plaintiff and defendants to argue their cases to the jury, the jury was faced with legitimate conflicting evidence and theories. On behalf of the plaintiff, there was testimony of witnesses who were with Knox on the night he died, who stated that Knox was not the least bit impaired from having consumed only one to two beers. From the physical facts of the accident as reconstructed by Thad Aycock, the consultant to the Accident Investigation Division of the Northwestern University Traffic Institute, Knox was only 145 feet from the collision when the tanker truck pulled out from a stop sign in front of Knox and blocked Busse Highway. Moving at 45 miles per hour, Knox slammed on his brakes, laying approximately 50 feet of skid marks, and he attempted to move to his left to avoid the tanker truck, but Knox had no opportunity to avoid the collision, which occurred 2.5 seconds from the time the truck pulled out onto Busse Highway. On behalf of the defendants, there was the postmortem protocol which provided that Knox had a blood-alcohol concentration of .155 at the time the postmortem examination was made.\nGiven the questions raised through the crucible of cross-examination of defendants\u2019 witnesses as to the reliability of the postmortem protocol, two different theories exist as to whether the postmortem protocol truly showed the alcohol concentration in Knox\u2019s blood immediately prior to his death. Both plaintiff and defendants had the right to argue their respective theories and interpretation of the facts and circumstances to the jury. That is what was done.\nThe arguments that were made by plaintiff\u2019s attorney and defendants\u2019 attorney were fair and subject to the discerning and keen intellect of a commensal cross-section of the community who sat as the jury. In reaching their verdict, the jurors applied their intellectual perceptions to all the evidence in light of their own observations and experiences in the affairs of life. I believe that the majority\u2019s conclusion that the plaintiff\u2019s attorney\u2019s argument was unfair and that both the trial judge and the jury were wrong in what they did constitutes a usurpation of the functions of the trial court and the jury.\nPerhaps the most glaring mistake made by the majority, in my opinion, relates to the next issue discussed by the majority. On the issue of the amount of the verdict, the majority states: \u201cWe also agree [with defendants] that the $2 million award was excessive.\u201d The majority also states: \u201cAlthough this evidence served to buttress the presumption that decedent\u2019s parents suffered substantial pecuniary loss upon the death of their child [citations], we do not believe that it provided a sufficient basis for the jury\u2019s verdict for $2 million. Given the lack of any evidence to support an award of this size, we must conclude the amount of the award indicates that it was the result of passion and prejudice. In conclusion, we find that because it would be impossible to state that the errors occurring at trial did not affect both the amount of the jury\u2019s award and its allocation of negligence, the judgment must be reversed and the cause remanded for a new trial.\u201d I disagree.\nThe jury returned a verdict in favor of the plaintiff for $2 million and found that \u201cthe percentage of negligence that was a proximate cause of plaintiff\u2019s death or damages attributable solely to the plaintiff is 10%.\u201d Accordingly, the amount of recoverable damages awarded by the jury is $1,800,000.\nThe decedent was born in 1951, received \u201cgood grades all the way through high school,\u201d and he \u201cwent to college for a couple of years.\u201d At the time of his death, he was employed by Household Finance, earning between $25,000 and $30,000 a year. His health was excellent. The decedent, who was described as \u201cambitious\u201d and a \u201cvery happy person,\u201d maintained a relationship with his parents \u201cthrough telephone calls, writing, coming home and all that.\u201d The decedent\u2019s father testified that his son\u2019s death meant that he \u201clost a friend, a loved one,\u201d and that he lost the support that he \u201cwould have in case, you know, if I should happen to need it.\u201d The decedent\u2019s mother stated that she lost \u201ceverything a person would want in a son.\u201d She testified that her son was \u201csomeone to talk to and someone to love.\u201d During the time that the decedent\u2019s sister was attending Creighton University in Omaha, Nebraska, the decedent contributed approximately $50 a week toward her support. This latter fact evinces the filial support the decedent\u2019s parents expected from him.\nWhen a decedent leaves parents, the law recognizes a presumption that the parents have sustained some substantial pecuniary loss by reason of the death. The weight to be given this presumption is for the jury to decide from the evidence in the case. (Illinois Pattern Jury Instructions, Civil, No. 31.06 (2d ed. 1971).) In terms of loss of society, which is involved in this case, society is defined as the mutual benefits that each family member receives from the other\u2019s continued existence, including love, affection, care, attention, companionship, comfort, guidance, and protection. (Drake v. Harrison (1987), 151 Ill. App. 3d 1082, 1087-88, 503 N.E.2d 1072, 1076.) These principles of law were given to the jury in the form of jury instructions. Moreover, all of the jury instructions were tendered and given on behalf of defendants.\nPlainly, the observations and experiences in the affairs of life of reviewing court judges cannot take precedence over those of the jury when it comes to determining how much money is reasonable compensation for the presumption of pecuniary loss for the death of a son. Nor can the observations and experiences in the affairs of life of reviewing court judges take precedence over those of the jury when it comes to determining how much money is reasonable compensation for the loss of love, affection, care, attention, companionship, comfort, guidance and protection that the parents of a son suffered as a result of his wrongfully caused death. Yet, in the present case the majority has arrogated to itself the right to usurp what the jury determined on both issues.\nIn addition, it must be noted that the defendants introduced no evidence whatsoever to rebut the presumption of substantial pecuniary loss and the loss of society. Nor did the defendants make any argument to the jury concerning damages. Also, the jury was accurately instructed on the law based upon instructions tendered by the defendants. Thus, it is clear that there is no error as to evidence, argument or law relating to the presumption of substantial pecuniary loss or the loss of society in this case.\nThe majority states that \u201cthe amount of the award indicates that it was the result of passion and prejudice.\u201d However, the majority does not make any textual discussion about passion or prejudice relating to the amount of the award. The majority\u2019s statement is merely an ipsi dixit assertion. I believe that the majority simply disagrees with the jury on the amount of the award. The majority is entitled to disagree with the jury, but that does not give the majority the entitlement to disturb the decision of the jury.\nNext, the majority concludes that \u201cbecause it would be impossible to state that the. errors occurring at trial did not affect both the amount of the jury\u2019s award and its allocation of negligence, the judgment must be reversed and the cause remanded for a new trial.\u201d I know of no other reviewing court panel that has set an \u201cimpossible to state\u201d no affect standard for reviewing courts when examining whether trial errors may have affected the amount of a jury\u2019s award or its allocation of negligence. The standard to be applied for a reversal and new trial because of trial errors is that the reviewing court must affirmatively conclude that there were trial errors which operated to the prejudice of the appellant or \u201cunduly affected\u201d the outcome below. (Chloupek v. Jordan (1977), 49 Ill. App. 3d 809, 817, 364 N.E.2d 650, 656.) Plainly, that standard cannot be met here. Moreover, in order for a reviewing court to reverse a jury\u2019s determination of plaintiff\u2019s percentage of comparative negligence, the verdict must be against the manifest weight of the evidence. (Lowe v. Kang (1988), 167 Ill. App. 3d 772, 782, 521 N.E.2d 1245, 1251.) Here, the majority never even discusses whether the jury\u2019s verdict allocating 10% of the fault of the accident to the decedent is against the manifest weight of the evidence. I do not find that the jury\u2019s verdict allocating 10% of the fault of the accident to the decedent is against the manifest weight of the evidence.\nLastly, the majority states that \u201cthe jury\u2019s allocation of only 10% comparative negligence to decedent may have been the result of the improper conduct of plaintiff\u2019s counsel and the trial court\u2019s failure to control that conduct.\u201d I disagree with the premise and the conclusion. This case involved a trial that was hard fought on both sides. The trial may not have been perfect, but it was fair. There was no improper conduct by plaintiff\u2019s counsel, and to say that the trial court failed to control the conduct of either counsel is wrong. The record plainly demonstrates that the trial court controlled the conduct of both counsel and gave both sides a fair trial. The trial court should be commended, not reversed.\nAccordingly, I would affirm the judgment of the trial court.\nADDENDUM\nThis dissent was filed in response to the majority opinion as it was originally filed before it was modified on rehearing. At that time, Justice Freeman agreed with everything that Justice White included in the majority opinion, including \u201cthe alleged excessiveness of the damages awarded in the case,\u201d since Justice Freeman concurred and did not file a specially concurring opinion. The original opinion in which Justice Freeman concurred and my dissent were filed on November 22, 1989. After a petition for rehearing was filed, as the order entered today provides, I voted to grant the petition for rehearing and Justices White and Freeman voted to deny the petition; also, the modified majority opinion and Justice Freeman\u2019s specially concurring opinion were filed. I do not believe that anything contained in the specially concurring opinion has sufficient merit to warrant a response.", "type": "dissent", "author": "JUSTICE RIZZI," } ], "attorneys": [ "Baker & McKenzie, of Chicago (Francis D. Morrissey, Paul B. O\u2019Flaherty, Jr., and Thomas W. Cushing, of counsel), for appellants.", "Fishman & Fishman and DeBofsky & DeBofsky, both of Chicago (Mark D. DeBofsky, of counsel), for appellee." ], "corrections": "", "head_matter": "EDITH JUANITA BROWN, Adm\u2019r of the Estate of Clearthis Knox, Jr., Deceased, Plaintiff-Appellee, v. ARCO PETROLEUM PRODUCTS COMPANY et al., Defendants-Appellants.\nFirst District (3rd Division)\nNo. 1\u201487\u20143343\nOpinion filed November 22, 1989.\nModified opinion filed April 11, 1990.\nRehearing denied April 16, 1990.\nFREEMAN, J., specially concurring.\nRIZZI, J., dissenting.\nBaker & McKenzie, of Chicago (Francis D. Morrissey, Paul B. O\u2019Flaherty, Jr., and Thomas W. Cushing, of counsel), for appellants.\nFishman & Fishman and DeBofsky & DeBofsky, both of Chicago (Mark D. DeBofsky, of counsel), for appellee." }, "file_name": "0563-01", "first_page_order": 585, "last_page_order": 614 }