{ "id": 2604301, "name": "CARL MARSHALL, Adm'r of the Estate of Barry S. Marshall, Deceased, et al., Plaintiffs-Appellants, v. ELDAN A. OSBORN, Defendant-Appellee", "name_abbreviation": "Marshall v. Osborn", "decision_date": "1991-04-25", "docket_number": "No. 3\u201490\u20140024", "first_page": "134", "last_page": "146", "citations": [ { "type": "official", "cite": "213 Ill. App. 3d 134" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "224 N.E .2d 468", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "81 Ill. App. 2d 79", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2543162 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/81/0079-01" ] }, { "cite": "517 N.E.2d 290", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "162 Ill. App. 3d 594", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3508859 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/162/0594-01" ] }, { "cite": "536 N.E.2d 1292", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "181 Ill. App. 3d 312", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498437 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/181/0312-01" ] }, { "cite": "540 N.E.2d 770", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "185 Ill. App. 3d 64", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2648185 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/185/0064-01" ] }, { "cite": "520 N.E.2d 852", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "165 Ill. App. 3d 923", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3613412 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/165/0923-01" ] }, { "cite": "517 N.E.2d 1147", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "164 Ill. App. 3d 355", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3582989 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/0355-01" ] }, { "cite": "500 N.E.2d 8", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "114 Ill. 2d 232", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542808 ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0232-01" ] }, { "cite": "316 N.E.2d 281", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "21 Ill. App. 3d 496", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5374419 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/21/0496-01" ] }, { "cite": "379 N.E.2d 890", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1974, "opinion_index": 0 }, { "cite": "62 Ill. App. 3d 1041", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5619671 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/1041-01" ] }, { "cite": "392 N.E.2d 693", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "73 Ill. App. 3d 462", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3262686 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/73/0462-01" ] }, { "cite": "443 N.E.2d 1085", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1979, "opinion_index": 0 }, { "cite": "111 Ill. App. 3d 268", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5441921 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/111/0268-01" ] }, { "cite": "565 N.E.2d 274", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "207 Ill. App. 3d 96", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2555062 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/207/0096-01" ] }, { "cite": "538 N.E.2d 1236", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "183 Ill. App. 3d 120", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2629393 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/183/0120-01" ] }, { "cite": "549 N.E.2d 784", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "192 Ill. App. 3d 1017", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2506590 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/192/1017-01" ] }, { "cite": "526 N.E.2d 450", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "172 Ill. App. 3d 201", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5084642 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/172/0201-01" ] }, { "cite": "522 N.E.2d 322", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "168 Ill. App. 3d 416", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3514148 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/168/0416-01" ] }, { "cite": "210 N.E.2d 232", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "236" } ], "opinion_index": 0 }, { "cite": "63 Ill. App. 2d 315", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5296316 ], "weight": 2, "pin_cites": [ { "page": "323" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/63/0315-01" ] }, { "cite": "456 N.E.2d 192", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "119 Ill. App. 3d 318", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3629218 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/119/0318-01" ] }, { "cite": "71 Ill. 177", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5311557 ], "pin_cites": [ { "page": "181-82" } ], "opinion_index": 0, "case_paths": [ "/ill/71/0177-01" ] }, { "cite": "218 N.E.2d 113", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "71 Ill. App. 2d 155", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2588082 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/71/0155-01" ] }, { "cite": "318 N.E.2d 40", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "22 Ill. App. 3d 505", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2944938 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/ill-app-3d/22/0505-01" ] }, { "cite": "532 N.E.2d 1110", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "178 Ill. App. 3d 97", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2432901 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/178/0097-01" ] }, { "cite": "382 N.E.2d 1217", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "73 Ill. 2d 113", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5440905 ], "opinion_index": 0, "case_paths": [ "/ill-2d/73/0113-01" ] }, { "cite": "422 N.E.2d 241", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "97 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3109285 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/97/0001-01" ] }, { "cite": "500 N.E.2d 120", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "149 Ill. App. 3d 752", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3458696 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/149/0752-01" ] } ], "analysis": { "cardinality": 1081, "char_count": 24529, "ocr_confidence": 0.769, "pagerank": { "raw": 1.7075933923588778e-07, "percentile": 0.7019129300588567 }, "sha256": "dedfd598c6862a738f4033bc2773f1f511e1c2ad631b7eb3a645c5af96143c2e", "simhash": "1:aae2f80f6e4c44a1", "word_count": 4064 }, "last_updated": "2023-07-14T21:36:27.836966+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CARL MARSHALL, Adm\u2019r of the Estate of Barry S. Marshall, Deceased, et al., Plaintiffs-Appellants, v. ELDAN A. OSBORN, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE SLATER\ndelivered the opinion of the court:\nOn April 17, 1987, plaintiffs\u2019 decedent Barry S. Marshall was killed when he was struck by an automobile driven by defendant Eldan A. Osborn. Plaintiffs filed suit pursuant to the Wrongful Death Act (Ill. Rev. Stat. 1987, ch. 70, pars. 1, 2) alleging various acts of negligence. Following a number of pretrial motions, which will be explained in more detail below, trial began on September 20, 1989. The evidence presented at trial was limited by application of the Dead Man\u2019s Act ( Ill. Rev. Stat. 1987, ch. 110, par. 8\u2014201), which prevented presentation of any event which took place in the decedent\u2019s presence.\nThe evidence presented at trial showed that the defendant was driving east along Lorenzo Road at approximately 2 a.m. The weather was foggy and the accident occurred in a rural area in which there were no streetlights, sidewalks, crosswalks, businesses, or intersections. The posted speed limit was 55 miles per hour.\nPolice officers who investigated the accident testified to the damage sustained by the defendant\u2019s car. The hood of the car on the driver\u2019s side was dented and the fender on that side was heavily damaged and had been pushed back to the edge of the driver\u2019s door. On the passenger side, the amber turn signal light was broken and there was a large dent where the roof of the car meets the windshield. The windshield on the passenger side was shattered inward, creating a large hole. Hairs were found in the windshield, on the chrome trim at the top of the windshield, and on the louvered rear windows.\nThe body of the decedent was found in the eastbound traffic lane of Lorenzo Road. All blood and body tissue were also found in the eastbound lane. Two pieces of fiberglass debris from defendant\u2019s vehicle were found in the eastbound lane close to the center line. Amber glass shards were also found in the roadway east of the fiberglass debris. The decedent\u2019s body was east of both areas of debris. No blood, body tissue, or debris was found in the westbound lane or on either the north or south shoulders of the road.\nA car was found in a ditch on the south shoulder of the road facing west with its headlights on. The car was undamaged except for a cracked windshield which was not related to this incident. The car belonged to the decedent\u2019s father and was driven by the decedent that night.\nPursuant to a request to admit facts, the defendant admitted that her car struck the decedent and caused his death. Defendant also admitted that at or about the time of the collision between her and the decedent, defendant\u2019s car left the roadway approximately two feet.\nDoctor Austin Gibbons, a pathologist, testified as an expert witness for defendant. Gibbons testified that the blood-alcohol level of the decedent was .320, which the witness characterized as \u201cseverely intoxicated.\u201d According to Gibbons, a person at this level of intoxication would be extremely uncoordinated, staggering, and barely able to walk. In addition, such a person\u2019s ability to perceive would be extremely impaired and his judgment would be greatly affected.\nThe jury returned a verdict in favor of the defendant. Plaintiffs\u2019 post-trial motion was denied, and they raise the following issues on appeal: (1) whether the trial court erred in reversing a prior ruling on a motion in limine, thereby allowing defendant to present evidence of decedent\u2019s intoxication; (2) whether the court, should have barred the testimony of defendant\u2019s expert witness; (3) whether the trial court properly excluded evidence of defendant\u2019s consumption of alcohol; and (4) whether the trial court erred in refusing to allow plaintiffs\u2019 expert to testify to the speed of defendant\u2019s vehicle. We affirm.\nPlaintiffs first contend that the trial court improperly changed a ruling which had excluded any evidence of the decedent\u2019s intoxication. Plaintiffs filed a motion in limine on April 18, 1988, prior to the completion of discovery and before a trial date had been set, which sought to exclude any evidence of decedent\u2019s intoxication on the grounds that its prejudicial effect outweighed its probative value and that such evidence was irrelevant because there was nothing to indicate that intoxication contributed to the decedent\u2019s death. In arguing the motion, plaintiffs\u2019 counsel relied on the fact that no one, including defendant, had seen the decedent prior to the accident and thus there was \u201cno evidence whatsoever of his position; meaning where he was standing, if he was standing, whether he was walking, moving, [or] what he was doing at the time of the collision.\u201d\nThe court granted plaintiffs\u2019 motion on June 22, 1988, prohibiting the defendant from making any reference to the decedent\u2019s intoxication or consumption of alcohol. The judge who granted the motion was not the same judge who presided at the trial of this cause. The defendant\u2019s motion to reconsider was denied on November 10, 1988.\nPrior to selection of the jury on September 20, 1989, defendant made a motion to reconsider the ruling on the motion in limine. The trial judge refused to reconsider the ruling at that time, but he cautioned plaintiffs\u2019 attorney that he would not be bound by the ruling of the previous judge if the evidence presented at trial warranted admission of decedent\u2019s intoxication. After jury selection and prior to opening statements, plaintiffs\u2019 attorney indicated that it would be unfair to. reconsider the ruling on the motion in limine at such a late date. The trial judge then asked plaintiffs\u2019 attorney if he would like him to rule on the motion to reconsider at that time, and plaintiffs\u2019 attorney said he did not. The judge then again warned plaintiffs\u2019 counsel that if the evidence presented at trial indicated that the decedent\u2019s intoxication was relevant he would admit it, and the judge again asked plaintiffs\u2019 counsel if he would rather have a ruling at that time. Plaintiffs\u2019 attorney responded that he did not want a ruling at that time.\nAfter plaintiffs presented their case the defendant again asked the court to reconsider the motion in limine. The court reversed the earlier ruling, finding that evidence of decedent\u2019s intoxication was material and relevant because all the evidence indicated that the decedent was in the eastbound traffic lane when he was struck by the defendant\u2019s car. The judge told plaintiffs\u2019 attorney that he would allow him to reopen his case to submit further evidence and that he would give plaintiffs\u2019 counsel the weekend to consider it. Plaintiffs chose not to reopen their case.\nPlaintiffs first contend that the trial court abused its discretion in reversing the ruling on the motion in limine after trial had begun because plaintiffs had relied on the earlier ruling in pretrial discovery and in preparing their case for trial. We disagree.\nA ruling on a motion in limine is interlocutory in nature and is subject to reconsideration throughout trial as the evidence is fully developed (Ely v. National Super Markets, Inc. (1986), 149 Ill. App. 3d 752, 500 N.E.2d 120; Beasley v. Huffman Manufacturing Co. (1981), 97 Ill. App. 3d 1, 422 N.E.2d 241; see Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 382 N.E.2d 1217 (court is not bound by interlocutory orders of previous judge and has the power to correct erroneous orders)). In this case the initial ruling which barred evidence of intoxication was largely based on representations by plaintiffs\u2019 attorney that there was no evidence of decedent\u2019s location at the time of impact. The evidence presented at trial strongly implied, however, that the decedent was in defendant\u2019s traffic lane when he was struck. Plaintiffs may not now complain that they were misled by a ruling which they induced the court to make. (See Crossman v. Curless (1988), 178 Ill. App. 3d 97, 532 N.E.2d 1110.) Moreover, the trial court made a conscientious effort to minimize any surprise or potential prejudice by offering to rule before plaintiffs presented their case and by offering them the opportunity to reopen their case after the ruling. We find no abuse of discretion.\nPlaintiffs further contend that the trial court erred in admitting evidence of decedent\u2019s intoxication because it was irrelevant and because its prejudicial effect outweighed its probative value. Plaintiffs argue that there must be a causal connection between decedent\u2019s intoxication and some conduct which contributed to his death.\nEvidence of a plaintiff\u2019s intoxication is relevant to the extent that it affects the care that he takes for his own safety and is therefore admissible as a circumstance to be weighed by the trier of fact in its determination of the issue of due care. (Doria v. Costello (1974), 22 Ill. App. 3d 505, 318 N.E.2d 40; Patarozzi v. Prairie States Oil & Grease Co. (1966), 71 Ill. App. 2d 155, 218 N.E.2d 113.) Our supreme court explained the probative value of such evidence long ago:\n\u201cA person who voluntarily uses intoxicating drinks until he has become physically helpless, or his powers so far impaired that he is unable to exert the necessary effort to avoid danger, is guilty of negligence when he places himself in a position of danger; and so when he thus stupifies and deadens his intellectual powers, so that he is unable to foresee and guard against danger. It was, then, highly important for the jury to be possessed of all the facts tending to show his mental and physical condition. Otherwise their conclusions as to whether he exercised reasonable care, might be altogether erroneous.\u201d Illinois Central R.R. Co. v. Cragin (1873), 71 Ill. 177, 181-82.\nWhile evidence of intoxication is highly probative, it is also extremely prejudicial; therefore, more is required than evidence of alcohol consumption alone. (Sandburg-Schiller v. Rosello (1983), 119 Ill. App. 3d 318, 456 N.E.2d 192.) It must be shown that the intoxication resulted in an impairment of mental or physical abilities and a corresponding diminution in the ability to act with ordinary care. (Shore v. Turman (1965), 63 Ill. App. 2d 315, 210 N.E.2d 232.) The evidence must show \u201ceither directly or by reasonable inference, that the conduct of the individual at and before the accident was or may have been affected by the use of alcoholic beverages\u201d (Shore, 63 Ill. App. 2d at 323, 210 N.E.2d at 236).\nIn this case the evidence shows that at the time decedent was struck by defendant\u2019s car he was located on an unlighted roadway with a posted speed limit of 55 miles per hour in a rural area on a dark and foggy night. Defendant\u2019s expert witness testified that the level of alcohol in decedent\u2019s blood would have a profound effect on his perception, judgment, and physical abilities. Under the circumstances, we find that the trial court did not err in admitting evidence of decedent\u2019s intoxication. See Cuellar v. Hout (1988), 168 Ill. App. 3d 416, 522 N.E.2d 322 (evidence of alcohol consumption supported by opinion testimony of intoxication was admissible).\nPlaintiffs next contend that the trial court erred in allowing defendant\u2019s expert witness to testify because defendant had not disclosed the witness pursuant to Supreme Court Rule 220 (134 Ill. 2d R. 220). Following the trial court\u2019s reversal of the earlier ruling barring evidence of decedent\u2019s intoxication, plaintiffs moved to bar the testimony of defendant\u2019s expert, Doctor Gibbons, because he had not been disclosed. The trial court denied the motion, finding that any surprise to plaintiffs was minimized by the fact that Doctor Gibbons\u2019 affidavit, setting forth his qualifications and opinions, was attached to defendant\u2019s response to plaintiffs\u2019 motion for summary judgment which was filed on November 9, 1988. The trial court also noted that the defendant was in a \u201cCatch-22\u201d situation, apparently referring to the fact that the ruling barring evidence of intoxication was entered before disclosure of experts was required under Rule 220 and remained in effect until trial. The trial judge gave plaintiffs\u2019 attorney the opportunity to depose defendant\u2019s expert over the weekend but counsel declined.\nThe imposition of sanctions for a violation of Supreme Court Rule 220 lies within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. (See Dietrich v. Jones (1988), 172 Ill. App. 3d 201, 526 N.E.2d 450.) Disqualification of an undisclosed expert is not the only sanction available to the court, and under some circumstances, allowing the offended party the opportunity to depose the expert may be an appropriate response. See Kosinski v. Inland, Steel Co. (1989), 192 Ill. App. 3d 1017, 549 N.E.2d 784.\nIn this case there was no question that defendant failed to disclose her expert witness. The affidavit attached to defendant\u2019s response to plaintiffs\u2019 motion for summary judgment is not a sufficient substitute for the disclosure required by Rule 220. (Cf. Scheibel v. Groeteka (1989), 183 Ill. App. 3d 120, 538 N.E.2d 1236.) We believe that ordinarily such a clear violation of Rule 220 would mandate disqualification of the witness. Under the unusual circumstances presented here, however, where the defendant had been barred from raising the subject matter of the expert\u2019s testimony before disclosure was required, we find no abuse of discretion by the trial court in allowing the witness to testify (see Coleman v. Central Illinois Public Service Co. (1990), 207 Ill. App. 3d 96, 565 N.E.2d 274 (in unusual circumstances, fairness may require exception to disclosure requirements of Rule 220)). Furthermore, we note that Rule 220 requires disclosure \u201c[w]here the testimony of experts is reasonably contemplated\u201d (emphasis added) (134 Ill. 2d R. 220(b)(1)). Given the pretrial ruling barring evidence of intoxication, we believe that it was reasonable for defendant to assume her expert would not be allowed to testify and therefore his testimony was not \u201creasonably contemplated.\u201d We caution counsel in future cases, however, that the better practice is to disclose all potential expert witnesses since the decision to bar an undisclosed witness rests with the trial judge.\nPlaintiffs next maintain that the trial court erred in refusing to allow plaintiffs to present evidence of defendant\u2019s consumption of alcohol. Specifically, plaintiffs sought to question defendant\u2019s expert, Doctor Gibbons, regarding the effect on defendant of drinking four beers in a five-hour period. Defendant had admitted drinking four beers on the night of the accident in answer to plaintiffs\u2019 interrogatories.\nWhile evidence of intoxication affecting the physical or mental abilities of a party is generally admissible, mere consumption of alcohol is not unless it is supported by evidence of intoxication. (Wagner v. Zboncak (1982), 111 Ill. App. 3d 268, 443 N.E.2d 1085; Clay v. McCarthy (1979), 73 Ill. App. 3d 462, 392 N.E.2d 693; McCullough v. McTavish (1978), 62 Ill. App. 3d 1041, 379 N.E.2d 890; Ballard v. Jones (1974), 21 Ill. App. 3d 496, 316 N.E.2d 281.) While cross-examining Doctor Gibbons, plaintiffs\u2019 attorney posed a hypothetical question in which Gibbons was asked to determine the blood-alcohol level of a person of defendant\u2019s weight who consumed four beers over a five-hour period. Gibbons initially refused to answer, stating that due to differences in absorption and elimination rates and other factors it was \u201can impossible thing to predict with any degree of scientific accuracy.\u201d After continued questioning, the following colloquy occurred:\n\u201cA. [Doctor Gibbons]: Well, *** the worst case put [her] at .115 if you were to take it all and inject it into that person at that time. Now, if you take instead and spread the absorption and the elimination over 5 hours, that person is never going to reach .115. It would be significantly lower than that.\nQ. [Plaintiffs\u2019 attorney]: What would it be?\nA. I am guessing \u2014 half of that.\nQ. Okay. Good. What would it be?\nA. I have no idea.\nQ. Half of that is?\nA. .057 or less.\u201d\nAfter the witness was excused, plaintiffs\u2019 attorney sought to subpoena Doctor Gibbons to have him testify to the blood-alcohol level of the defendant. Plaintiffs\u2019 attorney made an offer of proof by questioning Doctor Gibbons outside the presence of the jury, a portion of which is related below:\n\u201cQ. Doctor, I asked you earlier, and gave you a certain scenario ***.\nYou testified, I believe, that under those conditions and consuming that alcohol at that rate that that person would have a worse [sic] cas\u00e9 scenario of a .115, and a best case scenario of .057.\nA. No. I didn\u2019t say a best case scenario was .057. I said half or less when you asked me what it would be like. You are dealing with an extremely hypothetical case where it could have been zero at that time.\nQ. Do you have an opinion within your expertise as to what her blood alcohol level was at 2:00 a.m., the time of the collision, given the facts that I have given you concerning alcohol consumption and body weight?\nA. There is no scientifically or forensically valid way which I can get that, other than by pure guess. There is no sound way. My opinion is I can\u2019t testify to that with any degree of scientific certainty. It is impossible to tell you that.\u201d\nFurther questioning produced additional responses from Doctor Gibbons, the substance of which was that any estimate of the defendant\u2019s blood-alcohol level would be a guess lacking any degree of scientific certainty. The trial court refused to allow plaintiffs to introduce evidence of defendant\u2019s consumption of alcohol.\nIn view of the lack of any supporting evidence of intoxication, the trial court properly excluded evidence of defendant\u2019s alcohol consumption (see Wagner, 111 Ill. App. 3d 268, 443 N.E.2d 1085; McCullough, 62 Ill. App. 3d 1041, 379 N.E.2d 890). It is clear that Doctor Gibbons\u2019 testimony that defendant\u2019s alcohol level may have been .057 was mere speculation. An expert\u2019s opinion cannot be based on conjecture or guess (Dyback v. Weber (1986), 114 Ill. 2d 232, 500 N.E.2d 8), and a medical expert\u2019s opinion must be based on a reasonable degree of medical certainty (Collins v. Straka (1987), 164 Ill. App. 3d 355, 517 N.E.2d 1147). We find no error.\nFinally, plaintiffs contend that the trial court erred in refusing to allow their expert witness to testify that defendant\u2019s car was traveling 40 to 45 miles per hour at the time of impact. In answer to interrogatories submitted by defendant, plaintiffs stated that their expert, Eldan Lane, would testify that the defendant\u2019s car \u201cwas traveling at a much greater rate of speed than 10-15 mph\u201d at the time of collision. The day before trial, plaintiffs\u2019 counsel informed defense counsel that Lane\u2019s specific opinion was that defendant was traveling between 40 and 45 miles per hour. Plaintiffs\u2019 attorney said that he had learned of this opinion on the previous day. Defendant filed a motion to limit Lane\u2019s testimony to that which had been disclosed in the interrogatories. The trial court granted defendant\u2019s motion, finding that allowing the undisclosed opinion would violate Rule 220.\nDefendant also moved to bar any testimony by Lane on the basis that he was unqualified as an expert. Outside the presence of the jury, Lane testified regarding his qualifications to render an opinion on the speed of defendant\u2019s vehicle based on damage to the car. Lane\u2019s occupation at the time of trial was fabricating metal frames for storefront awnings. He had 35 years experience in body and fender work, including repairing damage from all types of collisions. He also stated that he was familiar with the type of car owned by the defendant, had repaired similar cars, and he was familiar with the strength of the metal used in the car. Lane also stated that he was not a high school graduate and he had no formal training in physics or engineering. The court found that Lane was \u201cqualified as an expert on this question alone, *** [he] can only answer to the extent of [his] answer to the interrogatory.\u201d Plaintiffs did not call Lane as a witness.\nPlaintiffs argue that Lane\u2019s opinion regarding the speed of defendant\u2019s vehicle should have been admitted because it did not represent \u201can undisclosed shift in theory or belief\u201d (134 Ill. 2d R. 220(c), Committee Comments, at 181; see Singh v. Air Illinois, Inc. (1988), 165 Ill. App. 3d 923, 520 N.E.2d 852). We agree that the undisclosed opinion did not represent a shift in theory. Plaintiffs\u2019 argument ignores, however, Rule 220(d), which provides:\n\u201cTo the extent that the facts known or opinions held by an expert have been developed in discovery proceedings through interrogatories, depositions or requests to produce, his direct testimony at trial may not be inconsistent with or go beyond the fair scope of the facts known or opinions disclosed in such discovery proceedings. However, he shall not be prevented from testifying as to facts or opinions on matters regarding which inquiry was not made in the discovery proceedings.\u201d 134 Ill. 2d R. 220(d).\nThe purpose of Rule 220 is to allow litigants to ascertain and rely upon the opinions of experts retained by their adversaries (134 Ill. 2d R. 220(d), Committee Comments, at 182), and paragraph (d) limits the scope of an expert\u2019s testimony to those opinions revealed in response to discovery (Bart v. Union Oil Co. (1989), 185 Ill. App. 3d 64, 540 N.E.2d 770). Plaintiffs maintain, however, that it was defendant\u2019s failure to depose the witness which resulted in the nondisclosure of the expert\u2019s additional opinion. It is clear, however, that Rule 220 \u201cimposes upon the party retaining an expert witness the obligation to keep abreast of the opinions which may be expressed at trial\u201d and \u201c[cjourts should not view favorably the late disclosure of \u2018new\u2019 opinions\u201d (134 Ill. 2d R. 220(c), Committee Comments, at 181).\nThe question then is whether Lane\u2019s opinion that defendant was traveling 40 to 45 miles per hour was beyond the fair scope of his earlier disclosed opinion that defendant was traveling at a much greater rate of speed than 10 to 15 miles per hour. While there is no question that the former opinion is consistent with the latter, it is decidedly more specific, and the implications of such an opinion may be profoundly different from the more general and rather innocuous opinion expressed in the interrogatory. We believe, therefore, that the trial court did not err in finding that the tardily disclosed opinion was beyond the scope of the answer given to the interrogatory, and we find no abuse of discretion by the court in limiting the expert\u2019s opinion. See Stringham v. United Parcel Service, Inc. (1989), 181 Ill. App. 3d 312, 536 N.E.2d 1292.\nIn addition, we find that the trial court did not err in finding that plaintiffs\u2019 expert was qualified to testify only to his opinion that defendant was travelling in excess of 10 to 15 mile per hour. The determination of an expert\u2019s qualifications is within the discretion of the trial court. (Bloomgren v. Fire Insurance Exchange (1987), 162 Ill. App. 3d 594, 517 N.E.2d 290.) While Lane had extensive experience in repairing damaged vehicles, he had no training or education in physics, engineering, or any other scientific discipline which would enable him to make a reasonably precise determination of the speed of defendant\u2019s car (see Deaver v. Hickox (1967), 81 Ill. App. 2d 79, 224 N.E .2d 468 (expert opinion as to speed of vehicles usually requires scientific knowledge)).\nFinally, we believe that even if the trial court had erred in excluding Lane\u2019s opinion of the speed of defendant\u2019s car, the result of the trial would not have been different had such testimony been presented. The posted speed limit on Lorezo Road was 55 miles per hour. While there was dense fog on the night of the collision, a police officer testified that he drove 45 miles per hour in the foggy conditions on his way to the scene of the accident and after leaving the scene. Under the circumstances, we deem it unlikely that the jury would have found for plaintiffs even if they believed that defendant was traveling 40 to 45 miles per hour.\nFor the foregoing reasons, the judgment of the circuit court is affirmed.\nAffirmed.\nGORMAN and McCUSKEY, JJ., concur.", "type": "majority", "author": "JUSTICE SLATER" } ], "attorneys": [ "Gomien, Root & Rigazio, of Morris (Mark W. Rigazio, of counsel), for appellants.", "James D. Grumley and Pamela E. Davis, both of Rooks, Pitts & Poust, of Joliet, for appellee." ], "corrections": "", "head_matter": "CARL MARSHALL, Adm\u2019r of the Estate of Barry S. Marshall, Deceased, et al., Plaintiffs-Appellants, v. ELDAN A. OSBORN, Defendant-Appellee.\nThird District\nNo. 3\u201490\u20140024\nOpinion filed April 25, 1991.\nGomien, Root & Rigazio, of Morris (Mark W. Rigazio, of counsel), for appellants.\nJames D. Grumley and Pamela E. Davis, both of Rooks, Pitts & Poust, of Joliet, for appellee." }, "file_name": "0134-01", "first_page_order": 156, "last_page_order": 168 }