{ "id": 159547, "name": "EILEEN P. BARRY, Independent Ex'r of the Estate of James Kevin Barry, Deceased, Plaintiff-Appellee, v. OWENS-CORNING FIBERGLAS CORPORATION, Defendant-Appellant", "name_abbreviation": "Barry v. Owens-Corning Fiberglas Corp.", "decision_date": "1996-06-03", "docket_number": "No. 1\u201494\u20142193", "first_page": "199", "last_page": "209", "citations": [ { "type": "official", "cite": "282 Ill. App. 3d 199" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "N.Y. Civ. Proc. L. & R. \u00a7 5501", "category": "laws:leg_act", "reporter": "N.Y.", "pin_cites": [ { "page": "(c)", "parenthetical": "McKinney 1995" } ], "opinion_index": 0 }, { "cite": "64 F.3d 781", "category": "reporters:federal", "reporter": "F.3d", "year": 1995, "opinion_index": 0 }, { "cite": "650 N.E.2d 985", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "165 Ill. 2d 150", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483571 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ill-2d/165/0150-01" ] }, { "cite": "576 N.E.2d 1072", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "216 Ill. App. 3d 303", "category": "reporters:state", "reporter": "Ill. 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App. 3d 1049", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2484966 ], "year": 1990, "pin_cites": [ { "page": "1059" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/197/1049-01" ] }, { "cite": "481 N.E.2d 957", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "135 Ill. App. 3d 329", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3599886 ], "year": 1985, "pin_cites": [ { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/135/0329-01" ] }, { "cite": "541 N.E.2d 719", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "185 Ill. App. 3d 374", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2647170 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/185/0374-01" ] }, { "cite": "562 N.E.2d 589", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "204 Ill. App. 3d 52", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2574675 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-app-3d/204/0052-01" ] }, { "cite": "606 N.E.2d 400", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "239 Ill. App. 3d 211", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5148997 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/239/0211-01" ] }, { "cite": "555 N.E.2d 1040", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "198 Ill. App. 3d 353", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2473546 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/ill-app-3d/198/0353-01" ] }, { "cite": "585 N.E.2d 235", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "223 Ill. App. 3d 505", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5254432 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/223/0505-01" ] }, { "cite": "524 N.E.2d 1000", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "170 Ill. App. 3d 1007", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3586532 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/170/1007-01" ] }, { "cite": "652 N.E.2d 1211", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "273 Ill. App. 3d 977", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 258591 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ill-app-3d/273/0977-01" ] }, { "cite": "349 N.E.2d 413", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "63 Ill. 2d 463", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5426307 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-2d/63/0463-01" ] }, { "cite": "642 N.E.2d 107", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "162 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477541 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-2d/162/0001-01" ] }, { "cite": "490 N.E.2d 1067", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "141 Ill. App. 3d 705", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3496998 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/141/0705-01" ] }, { "cite": "626 N.E.2d 190", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "157 Ill. 2d 304", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 778577 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-2d/157/0304-01" ] }, { "cite": "579 N.E.2d 873", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "144 Ill. 2d 339", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5592676 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-2d/144/0339-01" ] } ], "analysis": { "cardinality": 1164, "char_count": 21870, "ocr_confidence": 0.784, "pagerank": { "raw": 2.0054356882107572e-07, "percentile": 0.7434827281436099 }, "sha256": "f9b3e1312026513fa50360847fa4e0e9d9e578b0dbf525d7cbb525d40b554023", "simhash": "1:0b243c39226efd8f", "word_count": 3670 }, "last_updated": "2023-07-14T22:18:31.167440+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "EILEEN P. BARRY, Independent Ex\u2019r of the Estate of James Kevin Barry, Deceased, Plaintiff-Appellee, v. OWENS-CORNING FIBERGLAS CORPORATION, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nIn this appeal we are required to explore the boundaries of reasonable compensation in personal injury cases.\nThis is a wrongful death and survival action against Owens-Corning Fiberglas Corporation (OCF). The jury returned an itemized verdict that totalled $12,319,620.96. OCF attacks the verdict, contending that improper evidence, wrong jury instructions, and an unauthorized verdict form led to an award that is grossly excessive, not reasonably related to the evidence, and in contravention of public policy.\nWe take seriously OCF\u2019s contentions, but we do not agree with them. We affirm the judgment on the jury\u2019s verdict.\nBACKGROUND\nJames Kevin Barry (Barry) was a journeyman insulator who had worked in the insulation trade since 1948. In July 1992, Barry began experiencing shortness of breath. He was diagnosed as having mesothelioma, a cancer of the lining surrounding the inside of the chest wall and the surface of the lung.\nIn October 1992, Barry sued OCF and 18 other corporate defendants, claiming that he contracted mesothelioma from his exposure to asbestos-related products they manufactured.\nSix months later, in April 1993, Barry died. His wife Eileen, as the representative of Barry\u2019s estate, became the plaintiff. The complaint was amended to add survival and wrongful death claims. Eileen and seven children were Barry\u2019s \"next of kin.\u201d\nBefore trial, all defendants except W.R. Grace Co. (Grace) and OCF were dismissed, either because of settlements or the granting of summary judgment motions. After trial began, Grace settled, leaving OCF as the only defendant. The trial proceeded to the $12 million plus verdict being challenged in this appeal.\nOCF contends several trial court errors contributed to the verdict, which reads:\n\"We the jury find for the plaintiff, Eileen P. Barry, executor of the Estate of James Kevin Barry, and against the defendant Owens-Corning Fiberglass. We assess the following damages:\nFor injuries to James Kevin Barry during the period that James Kevin Barry was alive, from July 13, 1992 until April 26, 1993: $4,638,430.96, itemized as follows:\nMedical Bills and Funeral Expenses $138,430.96\nDisability $300,000\nDisfigurement $200,000\nPain and Suffering $4,000,000\nFor loss of income/services as a result of the illness and death of James Kevin Barry. $331,190\nFor loss of society to Mrs. Barry during the time period that James Kevin Barry was alive, from July 13, 1992 until April 26, 1993: $500,000\nFor damages to the next of kin of James Kevin Barry as a result of the death of James Kevin Barry:\nEileen P. Barry $3,000,000\nKevin Barry $ 500,000\nSusan Barry Salmon $ 500,000\nMargaret Barry Sheerin $ 500,000\nKathleen Barry Benz $ 500,000\nMichael Barry $ 500,000\nDaniel J. Barry $ 600,000\nErin P. Barry $ 750,000\n[signatures of jurors].\u201d\nThere was no line requiring the jury to reach a final figure. The total award came to $12,319,620.96. Because of the settlements, the award was reduced to $11,000,120.96.\nOPINION\nThere is no issue here concerning the adequacy of the evidence to support the jury\u2019s finding of liability. Instead, OCF directs our attention to the jury\u2019s damages award. OCF contends various events at trial converged in the jury room to create an unconscionable verdict. We address those events.\nTHE VIDEOTAPE\nOver objection by OCF, the jury saw a 90-second videotape of a thorascopy procedure performed on Barry. The 90 seconds were excerpted from a 90-minute procedure performed by Dr. Roberts, a thoracic surgeon. He performed this diagnostic procedure to determine the cause of Barry\u2019s shortness of breath. Dr. Roberts testified at trial, using the videotape as a demonstrative tool to explain the procedure and the observations that led him to conclude Barry was suffering from mesothelioma. The videotape showed the fluid build-up in Barry\u2019s lungs which was causing the shortness of breath Barry was experiencing.\nOCF argues that because the diagnosis of Barry\u2019s mesothelioma was not contested, the videotape was irrelevant, immaterial, or, at the very least, cumulative, and should not have been admitted.\nVideotapes, like photographs, often are used as demonstrative evidence to provide a visual aid that will help jurors understand a witness\u2019 testimony. The videotape becomes, by its nature, cumulative to the testimony, but cumulative in a good way. The goal is to help the jury understand something. A videotape is admissible for that purpose if it fairly and accurately shows whatever it intends to show and if it is not unduly prejudicial. Cisarik v. Palos Community Hospital, 144 Ill. 2d 339, 579 N.E.2d 873 (1991).\nIf demonstrative evidence is inaccurate, or if it would tend to mislead or confuse the jury, it should not be admitted. See Gill v. Foster, 157 Ill. 2d 304, 626 N.E.2d 190 (1993); Amstar Corp. v. Aurora Fast Freight, 141 Ill. App. 3d 705, 490 N.E.2d 1067 (1986).\nOCF does not say the videotape is inaccurate. We have seen it. We find nothing misleading or confusing in the tape. We do not agree with OCF\u2019s claim that the tape was submitted for its \"dramatic effect and emotional appeal\u201d rather than its demonstrative qualities. The carefully edited 90 seconds show Barry\u2019s diseased lung and the fluid build-up which was causing him distress. It tends to prove those matters.\nThere is nothing shocking or gruesome about the videotape. No blood flows. There is no gore. Fictional medical dramas on television regularly provide viewers with the sight of scalpels being inserted in various parts of the human anatomy. So does educational programming. No widespread public shock is discernible. It is most unlikely this jury was unduly influenced by this bland piece of videotape. It was not error to allow the jury to see it.\nLIFE EXPECTANCIES OF THE SPOUSE AND CHILDREN\nThe trial judge took judicial notice of mortality tables issued by the United States Department of Health and Human Services. He allowed the plaintiff to offer evidence of the life expectancies of Barry, his wife, Eileen, and the seven children. Later, the jury received Illinois Pattern Jury Instructions, Civil, No. 31.13 (3d ed. 1989) (hereinafter IPI Civil 3d). In it, the jury was told that in addition to Barry\u2019s life expectancy, it could consider the life expectancies of Eileen Barry and the seven children when assessing damages. The instruction read, in part:\n\"If you find for the plaintiff, then in assessing damages you may consider how long [each of the beneficiaries] will be likely to sustain pecuniary losses as a result of James Kevin Barry\u2019s death, considering how long James Kevin Barry was likely to have lived and how long [each of the beneficiaries is] likely to five.\u201d IPI Civil 3d 31.13.\nIPI Civil 3d No. 31.13 then set out the life expectancies of people with the ages of James Kevin Barry at his death and each of the survivors at the time of trial.\nOCF contends that where the deceased\u2019s life expectancy is less than the life expectancies of the survivors, allowing the jury to consider the life expectancies of the survivors is inappropriate, confusing, and misleading. In this case, says OCF, the error helped lead the jury to its unfortunately high verdict.\nWrongful death damages are intended to compensate the surviving spouse and next of kin for their pecuniary loss, including loss of society, resulting from someone\u2019s untimely death. Simmons v. University of Chicago Hospitals & Clinics, 162 Ill. 2d 1, 642 N.E.2d 107 (1994).\nThe period of time that matters is between the date the decedent actually died and the date he or she would have been expected to die had the defendant\u2019s wrongful conduct not intervened. As a matter of logic, if not law, the life expectancy of a survivor should come into play only if it is expected to be shorter than the life expectancy of the deceased.\nStill, we do not see any harm done by the giving of IPI Civil 3d No. 31.13. The instruction is permissive. There is no reason to believe the jury was misled or confused by it. Certainly, the plaintiff did not tell the jury it should award money for years beyond Barry\u2019s life expectancy. OCF was free to, and did, without contradiction, argue to the jury that the relevant time period was the life expectancy of the decedent, not the survivors.\nThe only decision we have found that approaches the point is Baird v. Chicago, Burlington & Quincy R.R. Co., 63 Ill. 2d 463, 349 N.E.2d 413 (1976). There, the parents of two deceased children sued the railroad under the wrongful death statute. The railroad complained that the instruction, Illinois Pattern Jury Instructions, Civil, No. 34.05 (2d ed. 1971) (hereinafter IPI Civil 2d), a predecessor to IPI Civil 3d No. 31.13, did not require that the pecuniary loss be determined on the basis of the life expectancy of the surviving parents instead of the longer life expectancy of the deceased children. In fact, the instruction there, as here, informed the jury of the life expectancies of both the deceased children and their surviving parents. The court held the instruction was not unconstitutionally vague, but went no further into the question raised in this case.\nThe damages instruction in the instant case adequately advised the jury of the proper elements of damages in the survival and wrongful death actions.\nWe cannot say that IPI Civil 3d No. 31.13, taken with all the other instructions, misled the jury or unfairly prejudiced OCF. See Solich v. George & Anna Portes Cancer Prevention Center of Chicago, Inc., 273 Ill. App. 3d 977, 652 N.E.2d 1211 (1995).\nOCF also complains about the failure to include the \"present cash value\u201d language in IPI Civil 3d No. 31.13. But OCF did not object to this omission during the instructions conference. In fact, there is reason to believe OCF asked for the omission. The record also shows OCF did not include this alleged error in its post-trial motion. The issue was not properly preserved for review. Centracchio v. Rossi Construction Co., 170 Ill. App. 3d 1007, 524 N.E.2d 1000 (1988). We consider the matter waived.\nThere was no error in the giving of IPI Civil 3d No. 31.13.\nTHE VERDICT FORM\nIn closing argument, the plaintiff\u2019s lawyer suggested a particular amount to be awarded in the wrongful death action to each of the survivors. The verdict form that was given, over objection, contained separate lines for each of the survivors.\nOCF contends the trial court erred by allowing the jury to determine the specific amounts to be awarded as wrongful death damages to each individual survivor. Relying on section 2 of the Wrongful Death Act (740 ILCS 180/2 (West 1992)), OCF contends the jury should have made a single award, which then would be distributed by the court in proportion to the survivors\u2019 percentage of dependency on the deceased.\nSection 2 reads, in part:\n\"[T]he amount recovered in every such action shall be for the exclusive benefit of the surviving spouse and next of kin of such deceased person and in every such action the jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the surviving spouse and next of kin of such deceased person.\nThe amount recovered in any such action shall be distributed by the court in which the cause is heard or, in the case of an agreed settlement, by the circuit court, to each of the surviving spouse and next of kin of such deceased person in the proportion, as determined by the court, that the percentage of dependency of each such person upon the deceased person bears to the sum of the percentages of dependency of all such persons upon the deceased person.\u201d (Emphasis added.) 740 ILCS 180/2 (West 1992).\nSection 2 establishes the procedure to be followed whether the case is tried or settled. The statute clearly envisions a single jury award, with the judge who heard the case to distribute the money to the survivors based on a certain statutory formula. The jury is given no such guidance. The trial court distributes the money in the same way it would if the case had been settled. See In re Estate of Williams, 223 Ill. App. 3d 505, 585 N.E.2d 235 (1992); Adams v. Turner, 198 Ill. App. 3d 353, 555 N.E.2d 1040 (1990).\nWe find the clear language of the statute requires that jury awards and settlement amounts in wrongful death cases be treated the same way \u2014 distribution by the judge.\nWe conclude that the jury should not have received a verdict form which provided for individual awards to each survivor. However, all we are left with is speculation. We do not, of course, know how the jury determined the amounts it placed on the separate lines. We have no reason to conclude that the use of separate lines somehow inflated the total wrongful death award. We find no prejudice in the erroneous verdict form.\nWe note, too, there is no evidence in the record that OCF offered a different verdict form, without separate lines. A party ordinarily will not be heard to complain about a jury instruction unless it offers a proposed alternative. Carlson v. City Construction Co., 239 Ill. App. 3d 211, 606 N.E.2d 400 (1992); State Farm Fire & Casualty Co. v. Miller Electric Co., 204 Ill. App. 3d 52, 562 N.E.2d 589 (1990).\nTHE AMOUNT OF THE DAMAGE AWARD\nAll errors aside, contends OCF, the damages award is grossly excessive. OCF asks that we grant a new trial on the damages issue, or, in the alternative, order a remittitur.\nBarry was 59 years old when he died. The mortality tables say he would have been expected to live at least another 19.1 years. The testimony of his widow and seven children established that he had strong family ties and enjoyed close relationships with all of his children. The children, even those who were adults, kept in close contact with Barry. They saw each other regularly and depended on Barry\u2019s judgment and advice.\nIn the nine months from July 1992, when Barry was diagnosed, until his death in April 1993, Barry underwent several treatments for his cancer. First, chemotherapy was administered. This required his admission into the hospital for two 5-day sessions. During this time he was infused with certain chemical agents.\nThe chemotherapy, which caused nausea and vomiting, was unsuccessful. In addition, Barry was experiencing more pain due to a large growth on his left lung. He agreed to receive a treatment in which he was infused with \"tumor necrosis factor,\u201d an experimental chemical agent, along with radiation.\nThe side effects from this second treatment included nausea and vomiting, as well as high fever, chills, body aches, rapid heart rate, and shortness of breath. Barry underwent this radiation treatment five days each week for a period of six weeks.\nBarry experienced some relief from this treatment, but by February the tumor was growing again. It advanced into the abdomen, causing severe swelling from fluid build up. Radiation was no longer effective. The only treatment was to insert a long needle into the abdominal cavity to withdraw the fluid and to inject \"tumor necrosis factor.\u201d This was done every few days. As much as a gallon of fluid would be removed.\nBarry deteriorated rapidly at this point. He lost weight and became very weak. When treatment was no longer helpful, Barry was referred to the hospice program. Through this program, pain and sleep medication were administered to him at home to keep him as comfortable as possible.\nOCF makes no specific attack on the elements that make up the survival action award, except that they are part of the complained-of total award. The survival action accounts for more than $51/2 million of the total, $4 million of it for Barry\u2019s pain and suffering during the nine months he suffered from the asbestos-related illness.\nThe wrongful death award was $6,850,000.\nOCF asks us to compare the award in this case with those in other cases, especially asbestos-related cases. We decline to do so.\nComparisons are difficult, if not impossible, because each award depends on the facts and circumstances of that particular case. Deerhake v. DuQuoin State Fair Ass\u2019n, 185 Ill. App. 3d 374, 541 N.E.2d 719 (1989). Exact mathematical computations cannot measure the propriety of jury awards. Northern Trust Co. v. County of Cook, 135 Ill. App. 3d 329, 335, 481 N.E.2d 957 (1985).\nAs we have said:\n\"Defendant\u2019s attempts to establish the excessiveness of the award by comparing it to awards in other wrongful death cases is without avail. The propriety of such awards is not subject to exact mathematical computation and cannot be measured by comparison with other verdicts.\u201d Drews v. Gobel Freight Lines, Inc., 197 Ill. App. 3d 1049, 1059, 557 N.E.2d 303 (1990).\nWe see no point to comparing this award to other asbestos-related cases. Juries are instructed to determine whether there is liability before they consider questions of damages. Once liability is found, the matter of compensatory damages has no logical relationship to the cause of the injury. That is a bedrock principle of our system of tort compensation. We are unwilling to find that there is any separate body of rules for asbestos-related cases. Establishing predictability of outcome for people similarly situated has surface attraction, but the courts of this state never have imposed on juries a requirement of conformity in damage awards.\nWhat, then, is the standard we must use to determine whether a jury award may stand? The cases tell us a verdict should not be disturbed unless it is so large that it is the apparent result of passion or prejudice, or that it falls outside the limits of reasonable compensation. Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 470, 605 N.E.2d 493 (1992); Drews v. Gobel Freight Lines, Inc., 144 Ill. 2d 84, 94, 578 N.E.2d 970 (1991); Phelps v. Chicago Transit Authority, 224 Ill. App. 3d 229, 234, 586 N.E.2d 352 (1991).\nReviewing courts rarely disturb jury awards. For good reason. We are in no better position to judge the appropriate amount of a verdict than are the 12 people who see and hear the arguments and the evidence. They use their combined wisdom and experience to reach fair and reasonable judgments. We are neither trained nor equipped to second-guess those judgments about the pain and suffering and familial losses incurred by other human beings. To pretend otherwise would be sheer hubris.\nThere comes a point, of course, where judges must intervene. We do that when we are able to find from a particular record that passion or prejudice must have played a role in reaching the verdict, or that it was so grossly excessive that it may not stand as a matter of law. We are trained and equipped to do that. It is a responsibility we must accept.\nSome of our cases say the test is whether the award is \"so large as to shock the judicial conscience.\u201d See, for example, Young v. Hummel, 216 Ill. App. 3d 303, 310, 576 N.E.2d 1072 (1991). Whether that is a legitimate standard or pure hyperbole need not be decided in this case. We do observe that some judicial consciences are more easily shocked than others.\nOCF contends the award in this case is so large it amounts to punitive damages, pointing in particular to the wrongful death damages. We do not agree.\nRecently, our supreme court affirmed a $7.3 million verdict in a wrongful death and survival case, Holston v. Sisters of the Third Order of St. Francis, 165 Ill. 2d 150, 650 N.E.2d 985 (1995). There, the survivors were a husband and two children. Of the $6.2 million awarded in the wrongful death action, the husband received $1.2 million and the children each received $2.5 million. The court held the verdict was not excessive as a matter of law, nor did it result from passion and prejudice. Here, of course, we have surviving a wife and seven children. Simple mathematics tells us the verdict in this case does not run afoul of Holston.\nOCF relies heavily on a federal case to support its view that this award cannot stand. But Consorti v. Armstrong Worlds Industries, Inc., 64 F.3d 781 (2d Cir. 1995), does not help OCF. In Consorti the court applied the less deferential New York standard of whether the award \"deviates materially from what would be reasonable compensation\u201d to reduce a $12 million pain and suffering award to $3.5 million, not far from the $4 million in this case for Barry\u2019s pain and suffering. See N.Y. Civ. Proc. L. & R. \u00a7 5501(c) (McKinney 1995).\nOCF asks us to look to the recent \"tort reform\u201d legislation, with its caps on noneconomic damages, for an expression of public policy that ought to apply to this case. The short answer is that there is no reason to believe such a public policy, whatever it is, existed at a time relevant to our consideration of this case.\nWe cannot set forth a litmus test that will establish the line between reasonable and unreasonable jury awards in all cases. We can say, based on the evidence and the applicable law, that the line was not crossed in this case. We will not vacate the award or order a remittitur.\nThe only other issue raised by OCF, the reading of former testimony of three experts, was not properly preserved in the trial court and will not be considered on review.\nCONCLUSION\nThe judgment entered on the jury\u2019s verdict is affirmed.\nAffirmed.\nCAMPBELL, P.J., and BRADEN, J., concur.", "type": "majority", "author": "JUSTICE WOLFSON" } ], "attorneys": [ "John Dames and M. Jayne Rizzo, both of Kelley, Drye & Warren, and Ruth E. VanDemark and Ralph N. Galder, both of Law Offices of Ruth E. VanDemark, both of Chicago, and Karen I. Ward, of Granville, Ohio, for appellant.", "Cooney & Conway, of Chicago (William R. Fahey, John D. Cooney, James Hopkinson, and Kathy Byrne, of counsel), for appellee." ], "corrections": "", "head_matter": "EILEEN P. BARRY, Independent Ex\u2019r of the Estate of James Kevin Barry, Deceased, Plaintiff-Appellee, v. OWENS-CORNING FIBERGLAS CORPORATION, Defendant-Appellant.\nFirst District (1st Division)\nNo. 1\u201494\u20142193\nOpinion filed June 3, 1996.\nRehearing denied July 30, 1996.\nJohn Dames and M. Jayne Rizzo, both of Kelley, Drye & Warren, and Ruth E. VanDemark and Ralph N. Galder, both of Law Offices of Ruth E. VanDemark, both of Chicago, and Karen I. Ward, of Granville, Ohio, for appellant.\nCooney & Conway, of Chicago (William R. Fahey, John D. Cooney, James Hopkinson, and Kathy Byrne, of counsel), for appellee." }, "file_name": "0199-01", "first_page_order": 217, "last_page_order": 227 }