{ "id": 1260390, "name": "PATRICIA PIETRZAK, Indiv. and as Daughter and Next Friend of Steven Pietrzak, et al., Plaintiffs-Appellants, v. RUSH-PRESBYTERIAN-ST. LUKE'S M0000EDICAL CENTER et al., Defendants-Appellees", "name_abbreviation": "Pietrzak v. Rush-Presbyterian-St. Luke's Medical Center", "decision_date": "1996-10-04", "docket_number": "No. 1-95-1575", "first_page": "244", "last_page": "254", "citations": [ { "type": "official", "cite": "284 Ill. App. 3d 244" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "641 N.E.2d 552", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "266 Ill. App. 3d 801", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 887286 ], "year": 1994, "pin_cites": [ { "page": "822" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/266/0801-01" ] }, { "cite": "599 N.E.2d 999", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "234 Ill. App. 3d 99", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5186859 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/234/0099-01" ] }, { "cite": "595 N.E.2d 1193", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "230 Ill. App. 3d 831", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5210779 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "855-56" }, { "page": "855" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/230/0831-01" ] }, { "cite": "635 N.E.2d 1019", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "263 Ill. App. 3d 132", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5369933 ], "year": 1994, "pin_cites": [ { "page": "152" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/263/0132-01" ] }, { "cite": "457 N.E.2d 85", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "pin_cites": [ { "parenthetical": "no error where plaintiff first raised insurance issue" } ], "opinion_index": 0 }, { "cite": "119 Ill. App. 3d 713", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3629688 ], "year": 1983, "pin_cites": [ { "page": "729", "parenthetical": "no error where plaintiff first raised insurance issue" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/119/0715-01" ] }, { "cite": "645 N.E.2d 284", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "268 Ill. App. 3d 1050", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 381877 ], "year": 1994, "pin_cites": [ { "page": "1061" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/268/1050-01" ] }, { "cite": "627 N.E.2d 84", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "254 Ill. App. 3d 529", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2979065 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "535" }, { "page": "535-36" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/254/0529-01" ] }, { "cite": "313 N.E.2d 218", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "pin_cites": [ { "parenthetical": "expert testimony disallowed concerning contract" } ], "opinion_index": 0 }, { "cite": "19 Ill. App. 3d 1039", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2693970 ], "year": 1974, "pin_cites": [ { "page": "1050", "parenthetical": "expert testimony disallowed concerning contract" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/19/1039-01" ] }, { "cite": "502 N.E.2d 1309", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "expert testimony disallowed concerning statute" } ], "opinion_index": 0 }, { "cite": "151 Ill. App. 3d 126", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3541335 ], "year": 1986, "pin_cites": [ { "page": "130", "parenthetical": "expert testimony disallowed concerning statute" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/151/0126-01" ] }, { "cite": "372 N.E.2d 656", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "69 Ill. 2d 507", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5456536 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "516-17" }, { "page": "514" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/69/0507-01" ] }, { "cite": "661 N.E.2d 472", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "277 Ill. App. 3d 947", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1172343 ], "weight": 7, "year": 1996, "pin_cites": [ { "page": "950" }, { "page": "950" }, { "page": "950" }, { "page": "950" }, { "page": "951" }, { "page": "950-51", "parenthetical": "dictionary definitions of \"reasonable\" and \"reasonable care\" did not substantially differ from jury instructions" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/277/0947-01" ] }, { "cite": "642 N.E.2d 741", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "267 Ill. App. 3d 993", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 333072 ], "year": 1994, "pin_cites": [ { "page": "999" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/267/0993-01" ] }, { "cite": "557 N.E.2d 303", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "197 Ill. App. 3d 1049", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2484966 ], "year": 1990, "pin_cites": [ { "page": "1061" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/197/1049-01" ] } ], "analysis": { "cardinality": 943, "char_count": 21547, "ocr_confidence": 0.748, "pagerank": { "raw": 6.374379788869709e-08, "percentile": 0.390444578042967 }, "sha256": "45a6996807859d814e7bf4a57a2eb48e497d10de3b90d8b985a89b175697039e", "simhash": "1:faffe4a92b8ecccf", "word_count": 3380 }, "last_updated": "2023-07-14T14:51:55.867701+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "PATRICIA PIETRZAK, Indiv. and as Daughter and Next Friend of Steven Pietrzak, et al., Plaintiffs-Appellants, v. RUSH-PRESBYTERIAN-ST. LUKE\u2019S MEDICAL CENTER et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE COUSINS\ndelivered the opinion of the court:\nPlaintiffs, Patricia and Caroline Pietrzak, filed a medical malpractice claim against defendants, Rush-Presbyterian-St. Luke\u2019s Medical Center (Rush), University Anesthesiologists, S.C. (UASC), and Dr. Dickson Wu, claiming that defendants negligently treated Steven Pietrzak. A jury held for defendants as to all counts. Plaintiffs appeal, seeking either a new trial or an evidentiary hearing to examine their claim that Rush\u2019s counsel committed prejudicial fraud on the court.\nWe affirm.\nOn April 1,. 1992, Steven Pietrzak suffered a cardiac arrest during prostate surgery at Rush. The cardiac arrest caused severe brain damage. Dr. Wu and UASC were the attending anesthesiologists, and Dr. Wu intermittently supervised resident Dr. Michael Fox\u2019s administration of anesthetic for the surgery.\nOn September 16, 1992, plaintiffs filed their complaint against defendants, alleging that they negligently caused Mr. Pietrzak\u2019s cardiac arrest. Patricia Pietrzak acted individually and as daughter and next friend of Mr. Pietrzak, and Caroline Pietrzak sought damages for loss of consortium. The complaint alleged that defendants were responsible for deficient potassium levels (hypokalemia) and blood volume levels (hypovolemia) in Mr. Pietrzak, and that either or both of these deficiencies caused his cardiac arrest.\nOn January 6, 1994, a jury trial commenced on the complaint. Plaintiffs presented expert testimony that hypokalemia and/or hypovolemia caused the cardiac arrest. Defendants presented expert testimony that the arrest was caused by a sudden and unpreventable event, either an air embolism or an adverse reaction to the dye used in prostate surgery. On February 18, 1994, the jury returned a verdict in favor of defendants.\nOn March 11, 1994, plaintiffs filed a post-trial motion requesting a new trial, and they filed an amended motion on August 15, 1994. The amended motion alleged two improprieties discovered only after the trial\u2019s completion. First, plaintiffs claimed that they were prejudiced when two jurors consulted the dictionary for definitions of \"timely,\u201d a word that appeared several times in the jury instructions referring to whether defendants rendered medical care in a timely fashion. One juror did not share her dictionary definition of \"timely\u201d \u2014 \"occurring at a suitable or opportune time; well-timed\u201d\u2014 with other members of the jury. The other juror did not find the definition of \"timely,\u201d but informed the jury of the following.definitions: \"time \u2014 measure of duration\u201d and \"duration \u2014 a limit of time.\u201d Plaintiffs moved to introduce testimony by linguistic expert Dr. Sadock on the possible prejudice that the definitions may have caused. Dr. Sadock\u2019s affidavit stated:\n\"[T]he post-trial motion raises an issue whether the jury\u2019s verdict was probably prejudiced by the introduction of extraneous dictionary definitions. *** I have indicated that, because it was a legal issue, it transcends the expertise of a linguist. *** [L]egal expertise is needed to understand ['probably\u2019 and 'prejudice\u2019] and apply the legal test.\u201d\nThe court denied plaintiffs\u2019 motion to allow Dr. Sadock\u2019s testimony. On May 5, 1995, the court issued a written opinion holding that the dictionary definitions at issue were ordinary, neutral, and nonargumentative definitions that did not improperly influence the jury, and, thus, the court denied the motion for a new trial.\nThe second alleged impropriety that plaintiffs discovered post-trial was an alleged fraud on the court by Rush\u2019s counsel regarding a videotape demonstration shown at trial. The two-minute videotape was shown to the jury to inform it of the sights and sounds that a medical device \u2014 a pulse oximeter \u2014 would convey to Dr. Fox during surgery. Prior to the demonstration, the following colloquy ensued:\n\"MR. DAVIDSON (plaintiffs\u2019 counsel): Now, Mr. Achilles [Rush\u2019s clinical engineer], who produced the lists of the equipment said he could not say which [oximeter] it was. It was one of two, and he didn\u2019t know which.\nMR. SLAWKOWSKI (Rush\u2019s counsel): One of two types. Dr. Fox will testify that this was the type of oximeter that was being used.\nMR. DAVIDSON: The same model, same year, that sort of thing.\nMR. SLAWKOWSKI: Same type.\nMR. DAVIDSON: Well, I think it\u2019s required to show that if it was one of two, that he knows which it was, that it was the same year, it\u2019s not some subsequent year. That\u2019s why the foundation to be made, he will be obligated to lay.\nMR. SLAWKOWSKI: We\u2019ll lay it.\n* * *\nMR. DAVIDSON: I would simply ask that the witness lay the foundation rather than counsel, and that he establish these points that it\u2019s the same machine and so on.\nTHE COURT: I\u2019m curious to know what your expert has to say, but my view, based on all that I know about the case, is that it doesn\u2019t look like a reconstruction. It looks simply like giving us an opportunity to see how they look and sound, and so we\u2019ll see what Dr. Fox has to say.\u201d\nThe videotape demonstration contained an Ohmeda 5250 monitor, and plaintiffs claimed that this monitor differed materially from the monitors that Mr. Achilles had testified might have been present, an Ohmeda 3700 or a Nellcor N-100. The Ohmeda 3700 and Nellcor N-100 do not display continuous readouts of oxygen and carbon dioxide, while the Ohmeda 5250 has this capability. The videotape demonstration did not use these continuous readout functions of the Ohmeda 5250, but Dr. Fox testified that he had access to continuous readouts of oxygen and carbon dioxide during the procedure, testimony that plaintiffs claimed was crucial. Plaintiffs\u2019 position is summarized as follows: (1) Rush\u2019s counsel made a false representation of fact with his \"same type\u201d description of the videotape monitor; (2) this fraudulent representation prevented plaintiffs from realizing that the machine in the video was not the \"same type\u201d as in surgery; (3) this misled plaintiffs into not challenging that the machine used was an Ohmeda 5250; and (4) because plaintiffs were misled, they lost the opportunity to impeach Dr. Fox\u2019s testimony on continuous readouts with his own prior inconsistent statements or the testimony of Mr. Achilles. Defendants responded that there was no misrepresentation, because the videotape demonstrated only the features identical on all models, and that there was no prejudice suffered by defendants.\nThe court denied plaintiffs\u2019 motion, holding that: (1) the record established a strong likelihood that the Ohmeda 5250 was actually used in the surgery; (2) any \"misrepresentation\u201d was innocent, not fraudulent, because no one was fully apprised of all the relevant facts; (3) plaintiffs did not reasonably rely on any misrepresentation because they had full knowledge of Dr. Fox\u2019s inconsistent deposition testimony and other impeaching evidence; and (4) any error was not so prejudicial as to require a new trial. The court did not answer whether counsel\u2019s \"same type\u201d answer was a misrepresentation under the alleged circumstances involving a demonstration of identical functions with a different model. The court also denied a new trial based on several alleged trial errors. Plaintiffs appeal the denial of their motion for a new trial, alleging that they were denied a fair trial through fraud by Rush\u2019s counsel, extraneous dictionary definitions, improper conduct by defense counsel, and the failure to give Illinois Pattern Jury Instructions, Civil, No. 5.01 (3d ed. 1989) (hereinafter IPI Civil 3d) regarding the destruction of evidence within a party\u2019s control.\nANALYSIS\nI\nPlaintiffs first contend that fraud by Rush\u2019s counsel entitles them to a new trial. A trial court\u2019s ruling that no prejudicial error occurred is entitled to great weight on appeal, and we will reverse the court\u2019s ruling only if the court abused this discretion. Drews v. Gobel Freight Lines, Inc., 197 Ill. App. 3d 1049, 1061, 557 N.E.2d 303 (1990).\nInitially, we conclude that no misrepresentation by counsel ever occurred. Plaintiffs\u2019 brief alleges, \"Rush\u2019s counsel represented that the videotape demonstrated 'the same type\u2019 as Rush\u2019s clinical engineer [Mr. Achilles] had testified was used in Pietrzak\u2019s surgery.\u201d (Emphasis added.) We review the relevant colloquy:\n\"MR. DAVIDSON: Now, Mr. Achilles, who produced the lists of the equipment said he could not say which it was. It was one of two, and he didn\u2019t know which.\nMR. SLAWKOWSKI: One of two types. Dr. Fox will testify that this was the type of oximeter that was being used.\nMR. DAVIDSON: The same model, same year, that sort of thing.\nMR. SLAWKOWSKI: Same type.\u201d (Emphasis added.)\nDavidson\u2019s question on models and Slawkowski\u2019s answer of \"same type\u201d both referred to Slawkowski\u2019s statement that \"Dr. Fox will testify that this was the type of oximeter that was being used.\u201d (Emphasis added.) Plaintiffs have never disputed that Dr. Fox testified that an Ohmeda 5250 was the type of oximeter that was being used and that it was the same model as shown in the videotape. Indeed, plaintiffs expressly complain about Dr. Fox\u2019s testimony regarding continuous readouts, which could only have resulted from an Ohmeda 5250. Although plaintiffs claim that Rush\u2019s counsel made a representation regarding the videotape and Mr. Achilles\u2019 testimony, the record shows th\u00e1t counsel only reiterated Mr. Achilles\u2019 testimony and made no representation whatsoever regarding this testimony. It is true that Rush\u2019s counsel did not volunteer that Mr. Achilles\u2019 testimony could impeach Dr. Fox\u2019s coming foundation testimony, but counsel was not required to advocate for both sides. There was nothing false about the only representation that Mr. Slawkowski made, and, thus, no fraud occurred in this matter. Because of our finding that no misrepresentation ever occurred, we need not examine plaintiffs\u2019 contention that the court was required to conduct additional evidentiary hearings into their allegations of fraud.\nEven assuming arguendo that counsel had made a misrepresentation, we agree with all four of the court\u2019s reasons for determining that such a misrepresentation would not require a new trial. The trial court was in a far superior position to determine whether a prejudicial fraud had been perpetrated on it. See In re Application of the County Treasurer, 267 Ill. App. 3d 993, 999, 642 N.E.2d 741 (1994). The record provides support for all four of the court\u2019s rationales, and we conclude that none of the court\u2019s holdings constitutes an abuse of discretion.\nII\nPlaintiffs next argue that the jury\u2019s consideration of two dictionary definitions for \"timely\u201d was reversible error. While evidence that the jury considered extraneous information can be used to impeach the verdict, not every instance in which unauthorized information reaches the jury results in reversible error. Macias v. Cincinnati Forte, 277 Ill. App. 3d 947, 661 N.E.2d 472 (1996). The losing party must first prove that the unauthorized information relates directly to an issue in the case and may have improperly influenced the verdict. Macias, 277 Ill. App. 3d at 950. The burden then shifts to the prevailing party to demonstrate that no injury or prejudice resulted.\u201d Macias, 277 Ill. App. 3d at 950. Because the actual effect of the extraneous information on the minds of the jury cannot be proved, the standard to be applied is whether the conduct involved such a probability that prejudice would result that [the trial] is to be deemed inherently lacking in due process.\u201d Macias, 277 Ill. App. 3d at 950.\nBefore analyzing the circumstances of this matter, we respond to the plaintiff\u2019s assertion that \"it is presumed that any extraneous matter brought before the jury is misleading, absent rebuttal by the proponent of the verdict.\u201d This contention is incorrect; as we stated in Macias, \"The losing party [must first prove] that the unauthorized information relates directly to an issue in the case and may have improperly influenced the verdict.\u201d (Emphasis added.) Macias, 277 Ill. App. 3d at 950. Although plaintiffs cite four different authorities for their assertion, we will respond directly to their reply briefs citation of People v. Holmes, 69 Ill. 2d 507, 372 N.E.2d 656 (1978). Holmes stated:\n\"Presumably there are many types of *** 'outside influence(s),\u2019 and we need not and do not discuss whether and in what types of situations a defendant might be required to show 'such a probability that prejudice will result that it is [to be] deemed inherently lacking in due process.\u2019 [Citation.] Here, the 'extraneous information\u2019 improperly brought to the jury\u2019s attention was in the nature of evidence with which the defendant had not been confronted at trial and which he had no opportunity to refute.\u201d (Emphasis added.) Holmes, 69 Ill. 2d at 516-17.\nThus, Holmes held that the court could not presume prejudice from all extraneous information, but that prejudice could be presumed when the information was additional unconfronted evidence. Plaintiffs\u2019 other citations likewise fail to support their claim.\nWhen the jury consults outside sources for definitions of words contained in jury instructions, the court must determine whether the definitions conflict or substantially differ from the instructions. See Macias, 277 Ill. App. 3d at 951. AVhere the outside definitions do not contradict, nullify, or negate the court\u2019s jury instructions, the error is harmless. See Macias, 277 Ill. App. 3d at 950-51 (dictionary definitions of \"reasonable\u201d and \"reasonable care\u201d did not substantially differ from jury instructions).\nWe first analyze the effect of the juror who did not share her dictionary definition of \"timely\u201d \u2014 \"occurring at a suitable or opportune time; well-timed\u201d \u2014 with other members of the jury. We agree with the trial court that this is a neutral, ordinary, and nonargumentative definition of the word that does not contradict the court\u2019s jury instructions. Although plaintiffs contend that the juror\u2019s dictionary defined \"opportune\u201d to indicate convenience to the actor, Webster\u2019s Ninth New Collegiate Dictionary 828 (1985) defines \"opportune\u201d as \"suitable or convenient for a particular occurrence\u201d and \"occurring at an appropriate time.\u201d These definitions are not substantially different from \"timely,\u201d and we note that plaintiffs have not alleged that the juror involved consulted her dictionary to define \"opportune.\u201d\nWe also agree with the court that the error was harmless when another juror informed the jury of the definitions \"time \u2014 measure of duration\u201d and \"duration \u2014 a limit of time.\u201d Plaintiffs contend that this definition imposed an increased burden to prove that defendants had failed to provide proper medical care within a measurable \"limit of time,\u201d whereas plaintiffs were only required to prove that medical care was not \"timely.\u201d However, an examination of timeliness requires a measurable limit of time. Moreover, plaintiffs have added the term \"measurable\u201d to the dictionary definition without justifying this additional adjective. Although plaintiffs attempt to cite individual jurors as to how the definitions affected their deliberations, evidence relating to the effect of outside influences on the mental processes of jury members is inadmissible. Holmes, 69 Ill. 2d at 514. Plaintiffs have not demonstrated that the extraneous definitions may have improperly influenced the verdict, and, thus, the trial court did not abuse its discretion.\nLastly, we agree with the court\u2019s denial of expert linguistic testimony on this issue. Even plaintiffs\u2019 expert stated that legal expertise was necessary to understand the term \"prejudice\u201d and apply the legal test. This court has repeatedly held that language interpretation is a question of law for the court so that expert linguistic testimony may be disallowed. Rusk Aviation, Inc. v. Northcott, 151 Ill. App. 3d 126, 130, 502 N.E.2d 1309 (1986) (expert testimony disallowed concerning statute); Dawe\u2019s Laboratories, N. V. v. Commercial Insurance Co., 19 Ill. App. 3d 1039,1050, 313 N.E.2d 218 (1974) (expert testimony disallowed concerning contract). Whether an outside dictionary definition contradicts a jury instruction is a question of language interpretation, and, thus, the court\u2019s ruling was proper.\nIll\nPlaintiffs next contend that several instances of improper conduct by defense counsel require that we grant a new trial. Argument and conduct constitute reversible error only when they are so prejudicial as to deprive the other party of the right to a fair trial. Balzekas v. Looking Elk, 254 Ill. App. 3d 529, 535, 627 N.E.2d 84 (1993). The court\u2019s decision denying a new trial on this basis will not be overturned absent a clear abuse of discretion. Tierney v. Community Memorial General Hospital, 268 Ill. App. 3d 1050, 1061, 645 N.E.2d 284 (1994).\nIn most instances of the alleged misconduct, the court sustained objections by plaintiffs and told the jury to disregard defendants\u2019 statements. Under such circumstances there is ordinarily no reason to believe that the jury was prejudiced. Balzekas, 254 Ill. App. 3d at 535-36. Nevertheless, plaintiffs are particularly critical of two questions that we will examine. The first involved an inquiry about medical insurance to plaintiffs\u2019 expert on future expenses, but this expert introduced an exhibit that stated, \"medical insurance may be impossible to obtain.\u201d Once defendants alerted the court to this statement, the court revised its ruling and held that the question was not improper, and we agree with the court\u2019s decision under these circumstances. See Bass v. Washington-Kinney Co., 119 Ill. App. 3d 713, 729, 457 N.E.2d 85 (1983) (no error where plaintiff first raised insurance issue). Defendants\u2019 other question introduced post-occurrence medical opinion as to the proper standard of care, but any possible prejudice was very limited in this case, as even the plaintiffs\u2019 brief admits that \"it was on the causation issue that the case was hardest fought.\u201d As to plaintiffs\u2019 other allegations, sustaining plaintiffs\u2019 objections on these matters was curative enough so that the court\u2019s, refusal to grant a new trial was not a clear abuse of discretion.\nThe only alleged misconduct on which the court overruled plaintiffs\u2019 objections was defendants\u2019 closing argument to limit any award to the medical and caretaking expenses for Mr. Pietrzak. However, because the jury never had occasion to consider damages, any possible error would be irrelevant and not prejudicial to plaintiffs. Lastly, plaintiffs complain of comments during closing argument to which they made no objection, but their failure to object has waived any error. Chiricosta v. Winthrop-Breon, 263 Ill. App. 3d 132, 152, 635 N.E.2d 1019 (1994).\nIV\nPlaintiffs next claim that because Dr. Fox destroyed his personal \"trainee copy\u201d of the anesthesia chart, the court erred in denying plaintiffs\u2019 request for IPI Civil 3d No. 5.01 regarding the destruction of presumably favorable evidence within a party\u2019s control. The decision whether to give IPI Civil 3d No. 5.01 is within the trial court\u2019s sound discretion and is reversible only after a showing of clear abuse. Cleveringa v. J.I. Case Co., 230 Ill. App. 3d 831, 855-56, 595 N.E.2d 1193 (1992).\nA party must satisfy four criteria to entitle it to IPI Civil 3d No. 5.01, and one of these requirements is that the requested evidence was in fact within the party\u2019s control. Cleveringa, 230 Ill. App. 3d at 855. However, Dr. Fox was never a party to this case. Although plaintiffs claim that it is \"indisputable\u201d that Rush controlled Dr. Fox\u2019s personal copy, they provide no logic or support for this contention. Plaintiffs\u2019 reply brief introduces an agency theory of control, but plaintiffs waived this argument by failing to include it in their appellate brief. Obenland v. Economy Fire & Casualty Co., 234 Ill. App. 3d 99, 599 N.E.2d 999 (1992). Plaintiffs have not explained how Rush had any control over Dr. Fox\u2019s personal copy of the chart, and, thus, there is no showing of clear abuse by the trial court.\nV\nLastly, plaintiffs claim that the jury\u2019s decision was against the manifest weight of the evidence and that the court erred in granting partial summary judgment against Patricia Pietrzak on two counts. However, plaintiffs have not provided any arguments or citations to support these claims. Supreme Court Rule 341(e)(7) (145 Ill. 2d R. 341(e)(7)) provides that the appellant\u2019s brief shall contain the contentions of the appellant and the reasons thereof, with citations of authorities, and plaintiffs have waived these contentions for their failure to conform to appellate procedure. Pyskaty v. Oyama, 266 Ill. App. 3d 801, 822, 641 N.E.2d 552 (1994). Plaintiffs also admitted at oral argument that they waived these claims, allowing us to conclude this opinion in timely fashion.\nFor the foregoing reasons, the judgment of the trial court is affirmed.\nAffirmed.\nMcNULTY, P.J., and HOURIHANE, J., concur.", "type": "majority", "author": "JUSTICE COUSINS" } ], "attorneys": [ "Keith L. Davidson & Associates, of Chicago (Keith L. Davidson and Richard A. Michael, of counsel), for appellants.", "Lord, Bissell & Brook (David J. Slawkowski, Hugh C. Griffin, Diane I. Jennings, and Laura J. Ginett, of counsel), and Swanson, Martin & Bell, both of Chicago (Leonard C. Swanson and Aaron T. Shepley, of counsel), for appellees." ], "corrections": "", "head_matter": "PATRICIA PIETRZAK, Indiv. and as Daughter and Next Friend of Steven Pietrzak, et al., Plaintiffs-Appellants, v. RUSH-PRESBYTERIAN-ST. LUKE\u2019S MEDICAL CENTER et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 1\u201495\u20141575\nOpinion filed October 4, 1996.\nRehearing denied November 1, 1996.\nKeith L. Davidson & Associates, of Chicago (Keith L. Davidson and Richard A. Michael, of counsel), for appellants.\nLord, Bissell & Brook (David J. Slawkowski, Hugh C. Griffin, Diane I. Jennings, and Laura J. Ginett, of counsel), and Swanson, Martin & Bell, both of Chicago (Leonard C. Swanson and Aaron T. Shepley, of counsel), for appellees." }, "file_name": "0244-01", "first_page_order": 262, "last_page_order": 272 }