{ "id": 2987983, "name": "GLENDA ELLINGTON, Special Adm'x of the Estate of Darlene F. Riddle, Deceased, Plaintiff-Appellant, v. YILMAZ BILSEL, Defendant-Appellee", "name_abbreviation": "Ellington v. Bilsel", "decision_date": "1993-12-30", "docket_number": "No. 5\u201492\u20140124", "first_page": "233", "last_page": "247", "citations": [ { "type": "official", "cite": "255 Ill. App. 3d 233" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "467 N.E.2d 1045", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1057" } ], "opinion_index": 0 }, { "cite": "126 Ill. App. 3d 952", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3597520 ], "weight": 2, "pin_cites": [ { "page": "971" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/0952-01" ] }, { "cite": "404 N.E.2d 564", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "573" } ], "opinion_index": 0 }, { "cite": "84 Ill. App. 3d 64", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3209918 ], "pin_cites": [ { "page": "76" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/84/0064-01" ] }, { "cite": "505 N.E.2d 320", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "page": "326" } ], "opinion_index": 0 }, { "cite": "115 Ill. 2d 445", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3179258 ], "year": 1980, "pin_cites": [ { "page": "460" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/115/0445-01" ] }, { "cite": "303 N.E.2d 392", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "396" } ], "opinion_index": 0 }, { "cite": "55 Ill. 2d 411", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2940512 ], "pin_cites": [ { "page": "418" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/55/0411-01" ] }, { "cite": "57 A.L.R.2d 379", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1958, "opinion_index": 0 }, { "cite": "113 N.E.2d 327", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "350 Ill. App. 471", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5106858 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/ill-app/350/0471-01" ] }, { "cite": "398 N.E.2d 12", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1953, "pin_cites": [ { "page": "16" } ], "opinion_index": 0 }, { "cite": "78 Ill. App. 3d 1018", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5606263 ], "year": 1953, "pin_cites": [ { "page": "1023" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/78/1018-01" ] }, { "cite": "535 N.E.2d 475", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "481" } ], "opinion_index": 0 }, { "cite": "180 Ill. App. 3d 117", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2616469 ], "pin_cites": [ { "page": "127" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/180/0117-01" ] }, { "cite": "417 N.E.2d 1099", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1102" }, { "page": "1102" } ], "opinion_index": 0 }, { "cite": "93 Ill. App. 3d 855", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3136418 ], "weight": 2, "pin_cites": [ { "page": "859" }, { "page": "859" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/93/0855-01" ] }, { "cite": "571 N.E.2d 951", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "967" }, { "page": "967" } ], "opinion_index": 0 }, { "cite": "212 Ill. App. 3d 904", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2599918 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "930" }, { "page": "930" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/212/0904-01" ] }, { "cite": "549 N.E.2d 1295", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1303" } ], "opinion_index": 0 }, { "cite": "193 Ill. App. 3d 188", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2500016 ], "pin_cites": [ { "page": "200" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/193/0188-01" ] }, { "cite": "466 N.E.2d 1038", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1039" } ], "opinion_index": 0 }, { "cite": "125 Ill. App. 3d 870", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3633591 ], "pin_cites": [ { "page": "872" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/0870-01" ] }, { "cite": "608 N.E.2d 1351", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "1354" } ], "opinion_index": 0 }, { "cite": "241 Ill. App. 3d 436", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2435354 ], "year": 1984, "pin_cites": [ { "page": "440" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/241/0436-01" ] }, { "cite": "569 N.E.2d 1237", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1240" } ], "opinion_index": 0 }, { "cite": "211 Ill. App. 3d 70", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2526927 ], "pin_cites": [ { "page": "75" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/211/0070-01" ] }, { "cite": "584 N.E.2d 425", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "429" }, { "page": "429" } ], "opinion_index": 0 }, { "cite": "222 Ill. App. 3d 833", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5264505 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "839" }, { "page": "839" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/222/0833-01" ] }, { "cite": "587 N.E.2d 1156", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1161" } ], "opinion_index": 0 }, { "cite": "224 Ill. App. 3d 817", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5253953 ], "pin_cites": [ { "page": "823" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/224/0817-01" ] }, { "cite": "111 N.E.2d 142", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "144" } ], "opinion_index": 0 }, { "cite": "414 Ill. 210", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5314560 ], "weight": 2, "pin_cites": [ { "page": "214" } ], "opinion_index": 0, "case_paths": [ "/ill/414/0210-01" ] }, { "cite": "346 N.E.2d 448", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "449" } ], "opinion_index": 0 }, { "cite": "37 Ill. App. 3d 710", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2714642 ], "weight": 2, "pin_cites": [ { "page": "711" }, { "page": "712" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0710-01" ] }, { "cite": "382 N.E.2d 409", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "65 Ill. App. 3d 50", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3324714 ], "pin_cites": [ { "page": "53" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/65/0050-01" ] }, { "cite": "364 N.E.2d 660", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "671" }, { "page": "671" } ], "opinion_index": 0 }, { "cite": "49 Ill. App. 3d 829", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5637727 ], "weight": 2, "pin_cites": [ { "page": "844" }, { "page": "844" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/49/0829-01" ] }, { "cite": "479 N.E.2d 1073", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "pin_cites": [ { "page": "1077" } ], "opinion_index": 0 }, { "cite": "134 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3635796 ], "year": 1977, "pin_cites": [ { "page": "7" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/134/0001-01" ] }, { "cite": "464 N.E.2d 1011", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "102 Ill. 2d 250", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3156363 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-2d/102/0250-01" ] }, { "cite": "435 N.E.2d 729", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "745" } ], "opinion_index": 0 }, { "cite": "106 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3029255 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "22" }, { "page": "22-23" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/106/0001-01" ] }, { "cite": "134 N.E.2d 249", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "259" } ], "opinion_index": 0 }, { "cite": "8 Ill. 2d 293", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2716524 ], "pin_cites": [ { "page": "313" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/8/0293-01" ] }, { "cite": "162 N.E.2d 373", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1956, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "17 Ill. 2d 570", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5334217 ], "year": 1956, "pin_cites": [ { "page": "577" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/17/0570-01" ] }, { "cite": "232 N.E.2d 708", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "712" } ], "opinion_index": 0 }, { "cite": "38 Ill. 2d 528", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2860860 ], "pin_cites": [ { "page": "535" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/38/0528-01" ] }, { "cite": "254 N.E.2d 453", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "pin_cites": [ { "page": "456" } ], "opinion_index": 0 }, { "cite": "44 Ill. 2d 132", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2891442 ], "year": 1967, "pin_cites": [ { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/44/0132-01" ] }, { "cite": "581 N.E.2d 162", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "166" }, { "page": "166" } ], "opinion_index": 0 }, { "cite": "220 Ill. App. 3d 509", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5274901 ], "weight": 2, "pin_cites": [ { "page": "515" }, { "page": "515" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/220/0509-01" ] }, { "cite": "576 N.E.2d 918", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 6, "pin_cites": [ { "page": "937" }, { "page": "937" }, { "page": "937" }, { "page": "937" }, { "page": "937" }, { "page": "937" } ], "opinion_index": 0 }, { "cite": "217 Ill. App. 3d 94", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5284773 ], "weight": 6, "pin_cites": [ { "page": "119" }, { "page": "119" }, { "page": "119" }, { "page": "119" }, { "page": "119" }, { "page": "119" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/217/0094-01" ] }, { "cite": "616 N.E.2d 1321", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1991, "pin_cites": [ { "page": "1329" }, { "page": "1329" }, { "page": "1330-32" }, { "page": "1329" } ], "opinion_index": 0 }, { "cite": "246 Ill. App. 3d 579", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5387922 ], "weight": 5, "year": 1991, "pin_cites": [ { "page": "590" }, { "page": "590" }, { "page": "592-94" }, { "page": "590" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/246/0579-01" ] } ], "analysis": { "cardinality": 1345, "char_count": 30579, "ocr_confidence": 0.759, "pagerank": { "raw": 1.254011903713817e-07, "percentile": 0.610897392087338 }, "sha256": "11b0dc68c98246765b14920741f572adaf60e48445c8fe96d5ddde951bd2ce6a", "simhash": "1:2324bf88ab15453c", "word_count": 4993 }, "last_updated": "2023-07-14T21:02:11.364828+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GLENDA ELLINGTON, Special Adm\u2019x of the Estate of Darlene F. Riddle, Deceased, Plaintiff-Appellant, v. YILMAZ BILSEL, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE WELCH\ndelivered the opinion of the court;\nOn December 29, 1988, Glenda Ellington (plaintiff), as special administratrix of the estate of Darlene Riddle (decedent), filed suit against Doctor Yilmaz Bilsel (defendant) in the circuit court of St. Clair County pursuant to the Wrongful Death and Survival Acts (Ill. Rev. Stat. 1991, ch. 70, par. 0.01 et seq.; Ill. Rev. Stat. 1991, ch. IIOV2, par. 27 \u2014 6), alleging that the death of the decedent was the result of medical malpractice. Specifically, the plaintiff alleged that the defendant\u2019s prescription of Zarontin and Dilantin (antiseizure medications), either separately or in combination, resulted in the decedent\u2019s development of aplastic anemia (a blood disease), which caused the decedent\u2019s untimely death at the age of 22.\nTrial commenced on October 21, 1991, and proceeded through October 29, 1991. The plaintiff called eight witnesses: (1) Dr. Jonathan Borak (an internist, assistant professor of medicine, and medical expert witness from New Haven, Connecticut); (2) Stephen Frost (decedent\u2019s brother); (3) Julie Frost (decedent\u2019s sister); (4) Glenda Ellington (decedent\u2019s mother); (5) Yilmaz Bilsel (defendant); (6) Dr. Ronald Welch (a neurologist); (7) Dr. Leroy Grossman (an economics professor and expert witness); and (8) Dr. Shabir Safdar (a hematologist who treated the decedent). The defendant called three witnesses: (1) Brenda McManame (defendant\u2019s medical assistant and secretary from 1981-84); (2) Yilmaz Bilsel; and (3) Simon Horenstein (a neurologist, professor, and expert medical witness). Counsel for both parties conducted extensive examination of the witnesses.\nBriefly stated, the following evidence was adduced at trial. In 1978, the defendant began treating the decedent for, inter alia, a preexisting seizure disorder. In October 1982, the defendant prescribed Zarontin for the decedent. In November 1982, the defendant prescribed Dilantin for the decedent. On June 5, 1983, the decedent was admitted to St. Elizabeth Hospital in Belleville by a Dr. Kahlid. Following unsuccessful treatment, the decedent died on December 21, 1983, as a result of her aplastic anemia. There were essentially two pivotal and highly contested issues at trial: (1) whether there existed a physician-patient relationship between the defendant and the decedent and (2) whether the decedent\u2019s aplastic anemia was caused by Zarontin and Dilantin or whether it was idiopathic (having no known cause). The case went to the jury on October 29, 1991. Later that day, the jury returned a verdict against the plaintiff and in favor of the defendant. On October 30, 1991, the circuit court entered judgment on the verdict.\nOn November 26, 1991, the plaintiff filed a post-trial motion asking the court to grant a new trial. On- November 27, 1991, the plaintiff filed an amendment to her post-trial motion. On January 24, 1992, the court denied the motion. The plaintiff now appeals and raises the following three issues: (1) whether defense counsel\u2019s closing argument deprived the plaintiff of a fair trial; (2) whether the defendant violated the Dead Man\u2019s Act (Ill. Rev. Stat. 1991, ch. 110, par. 8-201 (now 735 ILCS 5/8-201 (West 1992))) such that the plaintiff was denied a fair trial; and (3) whether the jury was properly instructed. We answer the first two issues in the negative and the third in the affirmative. Consequently, the circuit court is affirmed in all respects.\nThe first issue concerns statements made by defense counsel during closing argument. The plaintiff contends that defense counsel\u2019s references to Dr. Borak (plaintiff\u2019s expert medical witness) as being \u201cpolished\u201d and a \u201cperformer\u201d were improper, inflammatory, and prejudicial and denied her a fair trial. In closing argument, defense counsel stated the folio-wing:\n\u201cAnd what did [Dr. Safdar] tell us? He said the subject of where a patient and a doctor\u2019s responsibility in this relationship starts and ends is something that has been debated for a long time in medical circles, that it\u2019s not something that can be decided one way or the other in a situation like this, and that he is not prepared to say that Dr. Bilsel violated it. Who does say it? Dr. Borak says it. Yes, Dr. Borak. He says that\u2014 and he\u2019s a very polished witness. He dresses very well. He presents himself very well. He speaks \u2014 he\u2019s art \u2014 speaks very well, very articulate. He\u2019s obviously a very bright, intelligent man. No wonder that the Intercity Consulting Company sends him out around the country to talk to juries in cases.\nYou know you need to ask yourself something about a witness that\u2019s that polished that comes to you from New Haven, Connecticut like why? What special qualifications does a witness like that bring to the issues under consideration before you? Is it necessary to go all the way to New Haven, Connecticut for a witness or a performer on the subject of treating seizures and then come back to Belleville with a witness who\u2019s polished but doesn\u2019t treat seizures? Who doesn\u2019t treat aplastic anemia? Who\u2019s never used Zarontin? Just practices. Not involved doing the very thing that he says Dr. Bilsel did wrong, or do we finally get some idea of what Intercity Consulting Corporation means when it sends people around.\u201d (Emphasis added.)\nThe plaintiff further argues that defense counsel\u2019s reference to a nonexistent handwriting expert during closing argument was intentionally misleading, inflammatory, and prejudicial, and resulted in an unfair trial. Defense counsel stated the following in closing argument:\n\u201cDr. Bilsel was shown *** a whole series of handwritten prescriptions. Only one that was his that\u2019s been shown to him in this case was the one he identified, the one we showed you, and plaintiff asked Dr. Bilsel some questions about those pads. He said, \u2018That\u2019s your writing? Is that your signature?\u2019 Dr. Bilsel said no to all that. So the plaintiff\u2019s lawyer must have been challenging him about those things. Well, Dr. Bilsel\u2019s always denied it. They knew he was denying it. Did you see their handwriting expert?\n* * *\nI heard something in this argument here today about Dr. Popovic and Dr. Kahlid. Well, you\u2019ve seen a performance from a lawyer that\u2019s not overlooking anything, ladies and gentlemen, and you\u2019re entitled to understand that if the plaintiff thought that Dr. Popovic or Dr. Kahlid would have something critical of Dr. Bilsel or help him prove what he needed to prove, do you think they would have left him out of the case? Or the handwriting expert or the people from the pharmacy? No, they didn\u2019t call them either.\u201d (Emphasis added.)\nWe begin by noting that wide latitude must be afforded counsel in closing argument. (Moore v. Centreville Township Hospital (1993), 246 Ill. App. 3d 579, 590, 616 N.E.2d 1321, 1329; Lewis v. Cotton Belt Route \u2014 St. Louis Southwestern Ry. Co. (1991), 217 Ill. App. 3d 94, 119, 576 N.E.2d 918, 937.) We further note that plaintiff failed to make contemporaneous objections to defense counsel\u2019s comments during trial. Plaintiff first objected to the comments in a post-trial motion. \u201cA party cannot sit on his hands and let perceived errors into the record and complain of those errors for the first time in a post-trial motion.\u201d (Pharr v. Chicago Transit Authority (1991), 220 Ill. App. 3d 509, 515, 581 N.E.2d 162, 166.) Failure to make a timely objection at trial to alleged errors in an opponent\u2019s closing argument is considered a waiver of the objection. (Bruske v. Arnold (1969), 44 Ill. 2d 132, 137, 254 N.E.2d 453, 456; McElroy v. Force (1967), 38 Ill. 2d 528, 535, 232 N.E.2d 708, 712; Pharr, 220 Ill. App. 3d at 515, 581 N.E.2d at 166.) The waiver rule is based upon the obvious need to conserve judicial resources and reduce litigation costs. A timely objection allows the trial court to remedy the potential effect of an allegedly prejudicial statement by giving a curative instruction. Thus, by dealing with the situation at trial, judicial resources are not wasted on retrials and the parties are not made to bear the costs incident to retrying a case.\nHowever, the plaintiff argues that she comes within the plain error exception to the waiver rule. Under this exception, if unobjected-to remarks are so improper, inflammatory, and prejudicial that a litigant is deprived of a fair trial and the judicial process cannot stand without deterioration, a reviewing court may nonetheless consider such assignments of error although no objections were made at trial. See City of Quincy v. V.E. Best Plumbing & Heating Supply Co. (1959), 17 Ill. 2d 570, 577, 162 N.E.2d 373, 378; Belfield v. Coop (1956), 8 Ill. 2d 293, 313, 134 N.E.2d 249, 259; Lewis, 217 Ill. App. 3d at 119, 576 N.E.2d at 937.\nIt is well established that \u201cthe determination of whether argument not objected to was so pervasive as to deny a party a fair trial is a matter of sound trial court discretion, and that determination -will not be disturbed on appeal absent a \u2018clear abuse of that discretion.\u2019 \u201d (Stambaugh v. International Harvester Co. (1982), 106 Ill. App. 3d 1, 22, 435 N.E.2d 729, 745, rev\u2019d on other grounds (1984), 102 Ill. 2d 250, 464 N.E.2d 1011; see also Lewis, 217 Ill. App. 3d at 119, 576 N.E.2d at 937; Carlasare v. Wilhelmi (1985), 134 Ill. App. 3d 1, 7, 479 N.E.2d 1073, 1077; Greig v. Griffel (1977), 49 Ill. App. 3d 829, 844, 364 N.E.2d 660, 671.) A reviewing court gives \u201cconsiderable deference\u201d to the trial court in determining whether a party was denied a fair trial due to improper closing argument because the trial court, having heard all of the comments and arguments, is in a superior position to assess the accuracy and prejudicial effect, if any, upon the jury of counsel\u2019s statements. Moore, 246 Ill. App. 3d at 590, 616 N.E.2d at 1329; Greig, 49 Ill. App. 3d at 844, 364 N.E.2d at 671.\nWith the forgoing in mind, we now address the substance of plaintiff\u2019s contentions. As to the characterizations of Dr. Borak being \u201cpolished\u201d and a \u201cperformer,\u201d the plaintiff relies on the \u201chired gun argument\u201d line of cases in arguing that \"defense counsel\u2019s remarks were prejudicial and resulted in an unfair trial. Regan v. Vizza (1978), 65 Ill. App. 3d 50, 53, 382 N.E.2d 409 (denial of plaintiff\u2019s post-trial motion for a new trial reversed because defense counsel stated in closing argument that: (1) the jury could \u201cdraw a similarity with [plaintiff\u2019s expert medical witness] and a hired gun in the old West\u201d; and (2) the jury might recall \u201ca T.V. program with a guy named Paladin whose card read, \u2018Have Gun Will Travel\u2019 \u201d and \u201c[plaintiff\u2019s medical expert] is \u2018Have medical testimony will travel\u2019 \u201d); Cecil v. Gibson (1976), 37 Ill. App. 3d 710, 711, 346 N.E.2d 448 (judgment for defendant reversed because defense counsel stated during closing argument that: (1) plaintiffs\u2019 attorney was a \u201cslick attorney from Chicago\u201d and a \u201cslick hired-hand\u201d; (2) plaintiffs\u2019 expert medical witness was a \u201csidekick\u201d and a \u201crighthand man\u201d; (3) plaintiffs\u2019 counsel \u201cmanufactured\u201d evidence, had a \u201cwild imagination,\u201d was not worthy of the jury\u2019s trust, and was the \u201ccaptain of [the] ship\u201d who was \u201cpiloting\u201d the testimony of his expert medical witness; (4) the relationship between plaintiffs\u2019 counsel and his expert medical witness was comparable to that existing between the \u201cCisco Kid and Poncho\u201d and \u201cMatt Dillon and Chester\u201d; and (5) plaintiffs\u2019 expert medical witness was a \u201cprofessional witness\u201d whose \u201cshiny black leather bag\u201d contains instruments that \u201chave never been used\u201d).\nUnlike the court in Cecil, which found that \u201cdefense counsel\u2019s final argument clearly exceeded all bounds\u201d (Cecil, 37 Ill. App. 3d at 712, 346 N.E.2d at 449), we do not believe that defense counsel\u2019s references to Dr. Borak \u201cexceeded all bounds.\u201d The plaintiff\u2019s reliance on Cecil and Regan in arguing that \u201cdefense counsel\u2019s verbal attacks on Dr. Jonathan Borak were similarly inflammatory\u201d is baseless. It cannot be seriously maintained that defense counsel\u2019s references to Dr. Borak as \u201cpolished\u201d and a \u201cperformer\u201d rise to the same level as the torrent of inflammatory statements made by counsel in the Cecil case. Even if defense counsel had made the \u201chired gun\u201d type of argument condemned in Cecil and Regan, this court\u2019s recent decision in Moore v. Centreville Township Hospital (1993), 246 Ill. App. 3d 579, 616 N.E.2d 1321, would not require reversal. In Moore, this court per Justice Chapman rejected Cecil and other cases that had held the \u201chired gun\u201d argument to be improper. (See Moore, 246 Ill. App. 3d at 592-94, 616 N.E.2d at 1330-32.) Lastly, we agree with the trial judge, who, after fully considering the arguments of counsel at the post-trial motion hearing, concluded that defense counsel\u2019s use of \u201cpolished\u201d and \u201cperformer\u201d were \u201creasonable comments upon Dr. Borak and reasonable comments upon his appearance in the trial.\u201d As a result, we find no abuse of discretion on the part of the circuit court in denying the plaintiff\u2019s motion for a new trial based upon defense counsel\u2019s use of the terms \u201cpolished\u201d and \u201cperformer\u201d in reference to Dr. Borak.\nNext, plaintiff argues that defense counsel\u2019s statements concerning the nonexistent handwriting expert were so improper, prejudicial, and inflammatory that she was denied a fair trial. Plaintiff further asserts that the trial court abused its discretion in denying her motion for a new trial. We disagree. As outlined earlier in this opinion, whether a party was denied a fair trial due to improper closing argument is a matter of sound trial court discretion (Lewis, 217 Ill. App. 3d at 119, 576 N.E.2d at 937); a reviewing court gives \u201cconsiderable deference\u201d to that determination (Moore, 246 Ill. App. 3d at 590, 616 N.E.2d at 1329); and we will reverse only where there is a clear abuse of discretion (Lewis, 217 Ill. App. 3d at 119, 576 N.E.2d at 937).\nIn his closing argument, plaintiff\u2019s counsel responded to the comments about the handwriting expert by stating:\n\u201cI was challenged why didn\u2019t I have a handwriting expert for those prescriptions. And that really puzzles me because you\u2019ll remember most of them were telephone prescriptions, and what good would a handwriting expert do for a telephone prescription where the pharmacist over the phone writes down what the doctor says. Handwriting expert won\u2019t do me any good.\u201d\nBased on this, the trial court concluded, and we agree, that plaintiff\u2019s counsel, as an experienced trial attorney, chose not to object to the comments about the handwriting expert for tactical purposes:\n\u201cThe Court is satisfied, though, that [plaintiff\u2019s attorney] certainly handled this matter well in closing argument, and if there was any prejudice to the plaintiff by [defense counsel\u2019s] comments, [plaintiff\u2019s attorney] certainly handled that in his portion of the closing argument, and as far as this Court is concerned in the absence of an objection to this, the Court can only conclude that [plaintiff\u2019s attorney] utilized an opportunity or strategical purpose and is an experienced trial lawyer, and the Court\u2019s not going to jump in there and undo things because \u2014 and the Court can\u2019t as far as this Court is concerned unless it rises to the level of plain error, and those comments with regard to the handwriting expert do not rise to plain error [in this case].\u201d (Emphasis added.)\nAs the appellate court stated in Stambaugh v. International Harvester Co. (1982), 106 Ill. App. 3d 1, 22-23, 435 N.E.2d 729, 745:\n\u201cWe are persuaded, as was the trial court, that defendant was represented by experienced counsel who obviously and consciously chose not to object as a matter of trial strategy. To allow this deliberate and knowledgeable silence now to be used as a basis for reversing the verdict in this trial would *** constitute a deterioration of the judicial process. The trial court could early have stopped the improper comments upon defendant\u2019s objection and admonished the jury of the impropriety ***. Defendant may not now use this silence to its advantage when it failed to act earlier when given an opportunity *** to do so.\u201d\nAfter a careful review of the record in the instant case, we do not believe that defense counsel\u2019s unobjected-to comments were so prejudicial as to deny the plaintiff a fair trial. Nor do we believe that the trial court abused its discretion in denying plaintiff\u2019s motion for a new trial.\nThe plaintiff also argues that the trial court abused its discretion in denying her motion for a mistrial and motion for a new trial based upon five alleged violations of the Dead Man\u2019s Act (Ill. Rev. Stat. 1991, ch. 110, par. 8-201 (now 735 ILCS 5/8-201 (West 1992))). In relevant part, the Dead Man\u2019s Act provides:\n\u201cIn the trial of any action in which any party sues or defends as the representative of a deceased person ***, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased *** or to any event which took place in the presence of the deceased ***.\u201d Ill. Rev. Stat. 1991, ch. 110, par. 8-201 (now 735 ILCS 5/8-201 (West 1992)).\nThe purported purpose of the Dead Man\u2019s Act is \u201cto remove the temptation of the survivor to a transaction to testify falsely and to equalize the positions of the parties in regard to the giving of testimony.\u201d (M. Graham, Cleary & Graham\u2019s Handbook of Illinois Evidence \u00a7606.1, at 314 (5th ed. 1990).) The plaintiff maintains that the defendant violated the Dead Man\u2019s Act three times and that defense counsel violated the Act twice during closing argument. The defendant's first alleged violation occurred as follows:\n\u201cQ. [Plaintiff\u2019s counsel] You didn\u2019t call her; did you, Doctor?\nA. She did not call. She did not come.\nQ. All right. And you didn\u2019t call her either, did you?\nA. I don\u2019t recall.\nQ. All right.\nA. She must be \u2014 she was given orders. She has to \u2014 she must keep appointment. Otherwise she has to call the office, cancel appointment.\u201d (Emphasis added.)\nThe defendant's second alleged violation occurred as follows:\n\u201cQ. [Plaintiff\u2019s counsel] No, sir. My concern is this, patients don\u2019t always come every six months to see a physician or every three months?\nA. This was \u2014 she was instructed she must come every month\u2014\n[Objection by plaintiff\u2019s counsel] Excuse me, your honor, this violates the Deadman\u2019s Act. I move to strike the testimony and instruct the witness that it\u2019s improper.\u201d (Emphasis added.)\nThe defendant\u2019s third alleged violation occurred as follows:\n\u201cQ. [Plaintiff\u2019s counsel] And another warning about this drug to look for would be rashes under the PDR; is that correct?\nA. Yes.\nQ. A rash.\nA. When I start medication I talk to her about this\u2014\n[Objection by plaintiff\u2019s counsel] Your Honor, excuse me, this is clearly in violation of the Court\u2019s Order.\u201d (Emphasis added.)\nDefense counsel\u2019s first alleged violation of the Dead Man\u2019s Act occurred during closing argument when he told the jury they could anticipate a Dead Man\u2019s Act jury instruction:\n\u201cNow, you may have wondered at some time during this case why Dr. Bilsel wasn\u2019t asked and why Dr. Bilsel did not talk about the kind of guidance that he gave to Darlene when he saw her, and there\u2019s a reason for that, and you\u2019ll hear it in the instructions when the Court gives you the instructions.\u201d (Emphasis added.)\nDefense counsel\u2019s second alleged violation of the Dead Man\u2019s Act occurred when he stated:\n\u201cNow, you will also be instructed on the subject of contributory negligence *** [and] if you are to get to the point of deciding this, then you could consider whether or not Darlene was contributorially negligent for not following up for her own medical attention and care particularly since she had been encouraged to do so in so many different ways ***.\u201d (Emphasis added.)\nAs previously discussed, a trial judge\u2019s denial of a motion for a new trial (or for a mistrial) will only be reversed by a reviewing court where there is a clear abuse of discretion. (Lewis, 217 Ill. App. 3d at 119, 576 N.E.2d at 937.) We first address the statements made by the defendant. Based upon our review of the record, we are satisfied that the statements made by the defendant, even if improper, were not so prejudicial as to deny the plaintiff a fair trial.\nAccording to the plaintiff, defense counsel improperly commented upon the fact that the decedent \u201chad been encouraged\u201d to seek follow-up medical attention. Other than characterizing this argument as improper and a \u201cveiled, but meaningful and prejudicial, clever reference,\u201d the plaintiff does not say exactly what is improper with this part of defense counsel\u2019s closing argument. Our review of the record reveals that this argument was fair and based upon the evidence presented. First, there was evidence that after two separate emergency room visits the decedent was instructed to follow up with her family physician. Second, decedent\u2019s own mother testified that she had suggested to the decedent that she see the defendant, which she never did. We therefore find nothing improper about defense counsel commenting upon the fact that the decedent had been \u201cencouraged\u201d to seek medical attention.\nAs for defense counsel\u2019s comments regarding the anticipated Dead Man\u2019s Act jury instruction (Illinois Pattern Jury Instructions, Civil, No. 5.02 (3d ed. 1992)), we find nothing improper. Relying on Crutchfield v. Meyer (1953), 414 Ill. 210, 111 N.E.2d 142, plaintiff asserts that defense counsel\u2019s remarks \u201cclearly run[ ] afoul of the preclusion of such remarks under the governing precedent in Illinois law.\u201d Plaintiff\u2019s argument, however, is based on a tortured reading of Crutchfield. In that case, the Illinois Supreme Court speaking through Justice Maxwell held:\n\u201cInstructions on competency of witnesses are proper if they state the law correctly, but where counsel *** califs] the jury\u2019s attention to the fact that defendant was not permitted to testify due to the plaintiffs objection, it clearly appears that counsel is attempting to convey to the jury that defendant has m\u00e1terial and valuable evidence to give but is denied this opportunity by plaintiff\u2019s technical objection.\u201d (Emphasis added.) Crutchfield, 414 Ill. at 214, 111 N.E.2d at 144.\nThere is no suggestion in the instant case that defense counsel misstated the law with respect to the Dead Man\u2019s Act. Instead, he merely brought to the jury\u2019s attention the reason why the defendant was precluded from testifying about conversations he had with the decedent. Moreover, defense counsel never even came close to suggesting that defendant\u2019s inability to testify was due to the plaintiffs objection. The bottom line is that defense counsel\u2019s comments about the Dead Man\u2019s Act come within the permissible bounds of closing argument under Crutchfield. (See also Reid v. Sledge (1992), 224 Ill. App. 3d 817, 823, 587 N.E.2d 1156, 1161.) We can find nothing in the record to suggest that the trial court abused its discretion in denying plaintiff\u2019s motion for a new trial based upon comments made by defense counsel in closing argument.\nPlaintiff\u2019s final argument is that the trial court erred in refusing to give two non-Illinois Pattern Jury Instructions tendered by plaintiff. Although parties are entitled to have the jury instructed on the issues presented, the applicable legal principles, and the facts that must be proved to sustain a verdict (Wille v. Navistar International Transportation Corp. (1991), 222 Ill. App. 3d 833, 839, 584 N.E.2d 425, 429; Fetzer v. Wood (1991), 211 Ill. App. 3d 70, 75, 569 N.E.2d 1237, 1240), the trial court has considerable discretion as to the form of jury instructions (Ostry v. Chateau Ltd. Partnership (1993), 241 Ill. App. 3d 436, 440, 608 N.E.2d 1351, 1354; Malek v. Lederle Laboratories (1984), 125 Ill. App. 3d 870, 872, 466 N.E.2d 1038, 1039), and its refusal to give a tendered jury instruction will result in a new trial only where there is serious prejudice to a party\u2019s right to a fair trial. (Wille, 222 Ill. App. 3d at 839, 584 N.E.2d at 429; Thompson v. Abbott Laboratories (1990), 193 Ill. App. 3d 188, 200, 549 N.E.2d 1295, 1303.) Supreme Court Rule 239(a) (134 Ill. 2d R. 239(a)) generally requires that Illinois Pattern Jury Instructions (IPI) be used. IPI should be used exclusively where they correctly and adequately charge the jury. (Colls v. City of Chicago (1991), 212 Ill. App. 3d 904, 930, 571 N.E.2d 951, 967; Lay v. Knapp (1981), 93 Ill. App. 3d 855, 859, 417 N.E.2d 1099, 1102.) Non-IPI instructions may be used only where there is no appropriate IPI instruction. (Erickson v. Muskin Corp. (1989), 180 Ill. App. 3d 117, 127, 535 N.E.2d 475, 481.) However, non-IPI instructions must be carefully' scrutinized. Colls, 212 Ill. App. 3d at 930, 571 N.E.2d at 967; Lay, 93 Ill. App. 3d at 859, 417 N.E.2d at 1102.\nAlthough we will address each instruction separately, it must be noted that neither of plaintiff\u2019s non-IPI instructions has ever been approved as a jury instruction in any cited case. Plaintiff\u2019s proposed jury instruction number 27 reads:\n\u201cDuring the existence of the relationship of physician and patient, a physician is under a duty to give the patient all necessary care as long as the case requires attention, and a lack of diligence in attending to the patient after assumption of the case renders the physician liable for professional negligence.\u201d\nPlaintiff cites as authority for this instruction: Smothers v. Butler (1979), 78 Ill. App. 3d 1018, 1023, 398 N.E.2d 12, 16; Church v. Adler (1953), 350 Ill. App. 471, 113 N.E.2d 327, and Annot., 57 A.L.R.2d 379 (1958). Neither Smothers (which involved an appeal from summary judgment) nor Church (which involved an appeal from dismissal of a complaint) contains any discussion relating to jury instructions. In our view, Smothers and Church offer no support for framing a jury instruction in this case. Furthermore, plaintiff\u2019s proposed instruction number 27 is redundant. Plaintiff\u2019s instruction number 13, which was given, contains several submissions that authorized the jury to find negligence based upon a lack of diligence in rendering follow-up care. For instance, subparagraph (b) of instruction number 13 allowed the jury to find the defendant professionally negligent because he \u201c[fjailed to exercise diligence in attending to his patient *** in that he did not follow-up with her.\u201d Lastly, and perhaps most importantly, instruction number 27 would have misled and confused the jury because it presumes the existence of a physician-patient relationship. One need only look at the first sentence of instruction number 27 (\u201c[djuring the existence of the relationship of physician and patient, a physician is under a duty\u201d) to see this. In the instant case, there was substantial testimony and evidence presented on the critical issue of whether there existed a physician-patient relationship from December 1982 through June 1983. We fully agree with the trial court that instruction number 27 improperly suggests the existence of a physician-patient relationship during the period in question. Whether such a relationship existed was a factual issue that could have gone either way. Thus, we conclude that the plaintiff was not denied a fair trial by the trial court\u2019s refusal to give instruction number 27.\nWe now turn to plaintiff\u2019s proposed jury instruction number 28, which reads:\n\u201cWhere a drug manufacture [sic] recommends to the medical profession:\n1. The conditions under which its drugs should be prescribed;\n2. The disorders it is designed to relieve;\n3. The precautionary measures which should be observed; and\n4. Warns of the dangers which are inherent in its use, a doctor\u2019s deviation from such recommendations is prima facia [sic] evidence of negligence.\u201d\nPlaintiff lifted the language for this instruction from Ohligschlager v. Proctor Community Hospital (1973), 55 Ill. 2d 411, 418, 303 N.E.2d 392, 396. In general, the \u201c \u2018practice of lifting sentences from court opinions and converting them into instructions *** is not a good one, as it often leads to serious error.\u2019 \u201d (Kingston v. Turner (1987), 115 Ill. 2d 445, 460, 505 N.E.2d 320, 326, quoting De Rosa v. Albert F. Amling Co. (1980), 84 Ill. App. 3d 64, 76, 404 N.E.2d 564, 573.) At issue in Ohligschlager was whether the plaintiff could withstand a directed verdict in the absence of expert testimony. As far as we can determine, the only case to address the propriety of formulating a jury instruction based on Ohligschlager is Young v. Cerniak (1984), 126 Ill. App. 3d 952, 467 N.E.2d 1045. In Young, the appellate court reversed the trial court for giving an instruction based in part on Ohligschlager because, unlike Ohligschlager, the defendant in the case before it had presented evidence that: (1) recommendations of drug manufacturers are not conclusive on the standard of care and (2) failure to follow such recommendations is not necessarily a deviation from the accepted standard of care. (Young, 126 Ill. App. 3d at 971, 467 N.E.2d at 1057.) In the instant case, the jury heard testimony that: (1) the Physicians\u2019 Desk Reference (\u201cPDR\u201d) is neither a practice guide nor a medical text and (2) the drug manufacturer\u2019s recommendations for Zarontin and Dilantin do not constitute the standard of care. Furthermore, the trial judge observed that \u201cthere was testimony on both sides with regard to what [the] PDR is and what it means and how it\u2019s used.\u201d It was therefore clearly a question of fact for the jury to determine whether the defendant was negligent in failing to comply with the manufacturer\u2019s instructions. Lastly, instruction number 28 is redundant given that subparagraph (e) of plaintiff\u2019s instruction number 13 permitted the jury to find the defendant negligent because he \u201c[failed to heed the warnings and follow the recommendations for the prescribing of the drugs Dilantin and Zarontin, as contained in the Physicians Desk Reference.\u201d We conclude that the plaintiff\u2019s right to a fair trial was far from seriously prejudiced by the trial court\u2019s refusal to give instruction number 28.\nFor the reasons stated above, we affirm the judgment of the circuit court.\nAffirmed.\nCHAPMAN and MAAG, JJ., concur.", "type": "majority", "author": "JUSTICE WELCH" } ], "attorneys": [ "Michael J. Reagan and J. Michael Weilmuenster, both of Kassly, Bone, Becker, Dix, Reagan & Young, P.C., of Belleville, and William S. Daniel, of Daniel Law Offices, of Collinsville, for appellant.", "Jonathan Ries and Jan E. Dodd, both of Sandberg, Phoenix & von Gontard, P.C., of St. Louis, Missouri, for appellee." ], "corrections": "", "head_matter": "GLENDA ELLINGTON, Special Adm\u2019x of the Estate of Darlene F. Riddle, Deceased, Plaintiff-Appellant, v. YILMAZ BILSEL, Defendant-Appellee.\nFifth District\nNo. 5\u201492\u20140124\nOpinion filed December 30, 1993.\nMichael J. Reagan and J. Michael Weilmuenster, both of Kassly, Bone, Becker, Dix, Reagan & Young, P.C., of Belleville, and William S. Daniel, of Daniel Law Offices, of Collinsville, for appellant.\nJonathan Ries and Jan E. Dodd, both of Sandberg, Phoenix & von Gontard, P.C., of St. Louis, Missouri, for appellee." }, "file_name": "0233-01", "first_page_order": 253, "last_page_order": 267 }