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  "name": "FIDEL VELARDE et al., Plaintiffs-Appellees, v. ILLINOIS CENTRAL RAILROAD COMPANY, d/b/a Canadian National/Illinois Central R.R. Company, et al., Defendants-Appellants",
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      "FIDEL VELARDE et al., Plaintiffs-Appellees, v. ILLINOIS CENTRAL RAILROAD COMPANY, d/b/a Canadian National/Illinois Central R.R. Company, et al., Defendants-Appellants."
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        "text": "JUSTICE McBRIDE\ndelivered the opinion of the court:\nThis appeal involves a collision between a freight train and an automobile which occurred just after noon on January 9, 2001, on Army Trail Road in Bloomingdale, Illinois. The owner and maintainer of the tracks, defendant Illinois Central Railroad Company, d/b/a Canadian National/Illinois Central Railroad Company (CNIC or railroad), knew that snow and road salt had caused the intersection\u2019s warning gates and lights to malfunction and was using a stop-and-flag procedure there until the signals were repaired. On this particular dry, sunny Tuesday afternoon, however, a CNIC dispatcher mistakenly advised a northwestbound train\u2019s engineer that the signal problem had been fixed, and the train, consisting of three locomotives and 63 cars, proceeded through the intersection at 50 miles per hour. The passengers of the southbound automobile it struck, plaintiffs Fidel and Francisca Velarde, and the driver of the automobile, the Velardes\u2019 adult daughter, Lilia Apulello, sustained primarily internal and closed-head injuries when their 1998 Ford Explorer was broadsided and then rolled several times. The Velardes filed a negligence action against CNIC and the owner and operator of the train, defendant Chicago Central & Pacific Railroad Company (CC&P). Lilia filed a separate action against the same two defendants, which was consolidated with her parents\u2019 suit. As a result of her head injuries, however, Lilia was subsequently declared a disabled person, and her co-guardians, The Northern Trust Company and her husband, Rafael Apulello, became the plaintiffs to her claim (Lilia or the Apulellos). Rafael also added a claim of his own for loss of consortium. A jury awarded more than $54 million to the occupants of the Ford Explorer and apportioned 60% liability to CNIC, 35% to CC&P and 5% to Lilia, resulting in a slight reduction of the monetary awards. The jury also awarded Rafael $3.5 million. The trial judge entered judgment on the awards and denied motions for judgment notwithstanding the verdict and a new trial. On appeal, CNIC and CC&P contend (1) the use of a day-in-the-life video about Lilia, (2) the slight allocation of negligence to Lilia, (3) the large awards, and (4) improper closing arguments warrant a new trial on the issues of liability and damages, or damages alone, or alternatively, remittitur by $38 million.\nThe focus of defendants\u2019 appeal is their contention they were \u201cambushed\u201d by the Velardes and Apulellos on the first day of trial with a 22-minute day-in-the-life video about Lilia. Defendants state they were surprised by the video\u2019s existence, vehemently and repeatedly objected to its presentation to the jury, and then suffered a predictable \u201cbloodbath\u201d in excessive damages and badly misallocated fault when the video unfairly elicited sympathy for plaintiffs. Defendants contend the case must be retried without the video.\nThe facts pertinent to this issue are as follows. In March 2001, defendants issued Rule 213 interrogatories (177 Ill. 2d R. 213), which included a question as to whether any photographs, movies and/or videotapes had been taken of the accident scene or the vehicle or persons involved. In June 2001, Lilia answered this question, \u201cNone.\u201d Trial was scheduled for Monday, January 28, 2002. Fact and opinion discovery closed in mid-November 2001. The video was recorded on January 8 and 12, or on January 8 and 16, 2002 \u2014 the earlier dates appear in the transcripts and briefs, and the latter are marked on the copy of the video used during the trial. The Apulellos\u2019 attorney finished editing the raw video footage on Friday, January 25, 2002.\nOn Monday, January 28, 2002, the Apulellos\u2019 attorney told defense counsel that he had the video and intended to use it at trial. The video was discussed for the first time on the record that day, during the presentation of numerous motions in limine. At that point, neither the judge nor defendants had viewed the recording, and the judge deferred ruling on its admissibility.\nThe video was next addressed immediately after jury selection, on Tuesday, January 29, 2002. The Apulellos\u2019 attorney again raised the subject, describing the film as \u201cdemonstrative\u201d rather than substantive evidence of the nature and extent of Lilia\u2019s injuries and indicating the parties were still exchanging demonstrative exhibits. The defense attorney acknowledged the defense was still working on a diagram, but said he was objecting to plaintiffs\u2019 use of the video because it was \u201cway past any discovery disclosure time\u201d and contained \u201ctestimonial\u201d audio and unnecessary scenes. The Apulellos\u2019 attorney then offered to use the video without the audio track, said he would take out scenes showing Lilia\u2019s sister and nephew cleaning the house, and suggested the attorneys could meet that evening to reach an agreement about what else to \u201ctake out.\u201d The trial judge said \u201cOkay,\u201d and then proceeded to address other aspects of the trial. The attorneys met that evening. According to a sworn statement from the Apulellos\u2019 attorney, he edited scenes from the video immediately after the attorneys met, in \u201cstrict accordance\u201d with defense counsel\u2019s requests, and this version of the video was used at trial. The record shows the Apulellos\u2019 attorney played a few minutes of the video without the audio track during his opening statements, without objection from defendants. There was also no objection when Lilia\u2019s sister and Rafael narrated portions of the silenced recording while they described Lilia\u2019s weekday and weekend activities.\nHowever, at the end of the week, on Friday, February 1, 2002, defense counsel broached the topic with the judge, stating:\n\u201c[DEFENDANTS\u2019 COUNSEL]: [The Apulellos\u2019 attorney] and I met [Tuesday night] at my office. I said, Look, I\u2019ll withdraw my objection if A, you take the audio out, B, some other parts and the other thing I said is I want the outtakes, I wanted unedited tapes, that was my deal.\nI haven\u2019t gotten them, and my indication here today is I\u2019m not going to get those unedited tapes. If that\u2019s the case then I\u2019m going to renew my objection.\u201d\nThe Apulellos\u2019 counsel responded that according to the supreme court\u2019s opinion in Cisarik v. Palos Community Hospital, 144 Ill. 2d 339, 579 N.E.2d 873 (1991), the Apulellos\u2019 outtakes from the original footage were privileged attorney work product, but that he had been willing to give the defense the edited version of the film which the Apulellos had intended to use at trial and the scenes defense counsel edited from that version when the attorneys met to review the prepared exhibit. The defense attorney countered:\n[DEFENDANTS\u2019 COUNSEL]: Judge, *** I don\u2019t have it here because this issue just came up, [but] there is actually some [case law] that [indicates] *** I\u2019m even entitled to be there at the time these [scenes] are filmed. This is essentially no matter how you cut it, whether there is voice on it or no voice on it, a day in the life is a testimonial presentation. I can\u2019t cross[-] examine the film.\nThe only thing I can do is see what was pulled out. What was pulled out is in essence a way that I could cross[-]examine ***. *** I\u2019m renewing my objection if I don\u2019t get those outtakes.\u201d\nThe Apulellos\u2019 attorney responded that Cisarik was case law directly on point and that it shielded the Apulellos\u2019 outtakes from discovery. He questioned whether he would be expected to bring in all the drafts of any other trial exhibit. The defense attorney admitted that he was unfamiliar with Cisarik, but stated, \u201cI was withdrawing an objection *** to the video because they agreed, A, to take out the audio, B, because they agreed to take out pieces of it, and I said C, I want the outtakes.\u201d The trial judge reassured defense counsel that he would receive plaintiffs\u2019 outtakes if the defense was legally entitled to them. However, after the defense attorney reviewed Cisarik during a break in the proceedings, he stated:\n\u201c[DEFENDANTS\u2019 COUNSEL]: Judge, for the record, I am not going to disagree with what [the Apulellos\u2019 counsel] said Cisarik says. It does.\nI just want to make clear on the record my objection because, on the record, I disagree with Cisarik. I think it is wrong.\nMy objection is A, that in my view it should have been produced during discovery so I am renewing that objection.\nB, I believe the outtakes are not work product, and that\u2019s it.\u201d Nevertheless, in their combined posttrial motion for a new trial and judgment notwithstanding the verdict, defendants argued in part that the video should have been barred because defendants were wrongfully denied plaintiffs\u2019 outtakes. The Apulellos responded that the version used at trial was in fact \u201cdefense-approved.\u201d They summarized the proceedings quoted above and tendered the affidavit referenced above in which plaintiffs\u2019 counsel described his interaction with the defense attorney. Defendants moved to strike the attorney\u2019s affidavit, arguing that it contradicted an on-the-record statement of facts, and the trial judge denied the motion without comment.\nDefendants\u2019 first specific contention about the video is that it contained fact and opinion testimony and was therefore \u201csubstantive evidence\u201d which should have been barred from the trial because it was not timely disclosed in response to defendants\u2019 Rule 213 interrogatories. 177 Ill. 2d Rs. 213(a), (d). Rule 213(i) imposes a continuing duty on a party to \u201cseasonably supplement or amend any prior answer or response whenever new or additional information subsequently becomes known to that party.\u201d 177 Ill. 2d R. 213(i). In addition to citing the various paragraphs of Rule 213 and a host of related cases, defendants cite Wiker v. Pieprzyca-Berkes, 314 Ill. App. 3d 421, 430, 732 N.E.2d 92, 99 (2000), and Warrender v. Millsop, 304 Ill. App. 3d 260, 264, 710 N.E.2d 512, 519 (1999), for the proposition that the video was untimely disclosed or improperly withheld evidence. The Apulellos respond that the video was properly admitted as demonstrative evidence, pursuant to Cisarik, 144 Ill. 2d 339, 579 N.E.2d 873. Additionally, defendants\u2019 concerns about the video were accommodated when their attorney previewed and edited out certain footage, and the audio track was silenced while trial witnesses, whose testimony was subject to objection and cross-examination, provided narration. The Velardes add that they did not make, introduce, or use the video and that defendants have cited no authority for the proposition that the Velardes had a duty to produce someone else\u2019s demonstrative evidence.\nThe admission of a film into evidence is within the sound discretion of the trial court (Carney v. Smith, 240 Ill. App. 3d 650, 656, 608 N.E.2d 379, 383 (1992)), and an abuse of discretion occurs only where no reasonable person would agree with the trial court\u2019s conclusion. Schwartz v. Cortelloni, 177 Ill. 2d 166, 685 N.E.2d 871 (1997).\nDefendants\u2019 assertion that the day-in-the-life video was substantive evidence is refuted by the opinion which the Apulellos repeatedly cited at trial and defendants now almost ignore, Cisarik, 144 Ill. 2d 339, 579 N.E.2d 873. That case involved a brain-damaged infant and allegations of medical negligence. Cisarik, 144 Ill. 2d at 341, 579 N.E.2d at 874. The pertinent details are disclosed by opinions issued by the appellate and supreme courts. Cisarik v. Palos Community Hospital, 193 Ill. App. 3d 41, 549 N.E.2d 840 (1989), aff\u2019d in part & rev\u2019d in part, 144 Ill. 2d 339, 579 N.E.2d 873 (1991). The plaintiffs attorney decided to make a film depicting a typical day for the infant, in order to give the jury a grasp of the full extent of her disabilities. Cisarik, 144 Ill. 2d at 341, 579 N.E.2d at 874. The defense persuaded the trial judge to issue a protective order permitting each party to have one lawyer present during the filming, a copy of the finished film as well as all edited-out and unused footage, and the right to depose any authenticating witnesses. Cisarik, 193 Ill. App. 3d at 43-45, 549 N.E.2d at 841-42. The judge reasoned that a day-in-the-life film was like an evidence deposition, and therefore it was subject to similar treatment. Cisarik, 193 Ill. App. 3d at 45, 549 N.E.2d at 842. The plaintiff, however, did not want the defense present during filming and took an appeal.\nThe appellate court disagreed only slightly with the trial judge\u2019s approach and found that because the film\u2019s preparation itself was not evidence, the plaintiffs attorney could make the film without opposing counsel in attendance. Cisarik, 193 Ill. App. 3d at 45, 549 N.E.2d at 842. The appellate court modified the protective order accordingly. Cisarik, 193 Ill. App. 3d at 45, 549 N.E.2d at 842. Notably, it did not disturb and in fact it expressly reiterated the portions of the order requiring (a) that all the film, whether or not it was used in the plaintiffs final edited version, be preserved for the defendants\u2019 viewing and use at trial as their own evidence, and (b) that the plaintiffs authenticating witnesses be subject to deposition. Cisarik, 193 Ill. App. 3d at 45, 549 N.E.2d at 842.\nOn further appeal to the supreme court, however, the entire protective order was reversed. Cisarik, 144 Ill. 2d at 343, 579 N.E.2d at 875. The supreme court determined that when viewed in its \u201cproper light,\u201d a day-in-the-life film is \u201cmerely a type of demonstrative evidence,\u201d comparable to a still photograph, a drawing, a model, or even a chart, that it \u201chas no probative value in itself,\u201d and that it serves only as a \u201cvisual aid to the jury in comprehending the verbal testimony.\u201d Cisarik, 144 Ill. 2d at 341, 579 N.E.2d at 874. In addition, the \u201cpreparation of such evidence\u201d is properly deemed \u201cthe work product of the lawyer who is directing and overseeing its preparation\u201d {Cisarik, 144 Ill. 2d at 341, 579 N.E.2d at 874), and \u201copposing counsel has no right to intrude into the production of this demonstrative evidence\u201d {Cisarik, 144 Ill. 2d at 342, 579 N.E.2d at 875). The supreme court was not swayed by the defendants\u2019 argument that day-in-the-life films are a \u201cparade of horribles\u201d which should be subject to more stringent discovery guidelines than other types of evidence. Cisarik, 144 Ill. 2d at 342, 579 N.E.2d at 874. Instead, the court found that the standard two-prong test for admissibility of evidence such as still photographs, when and if the plaintiff offered the film into evidence at trial, would adequately protect the defendants. Cisarik, 144 Ill. 2d at 342, 579 N.E.2d at 874. Under the first prong, a foundation would have to be laid that the film was an accurate portrayal of what it purportedly showed, and under the second prong, the film\u2019s probative value could not substantially outweigh the danger of unfair prejudice. Cisarik, 144 Ill. 2d at 342, 579 N.E.2d at 874.\nCisarik makes clear that day-in-the-life-films are considered demonstrative evidence which helps jurors understand witness testimony, rather than additional substantive evidence. Furthermore, it appears defendants\u2019 \u201csubstantive evidence\u201d arguments more or less repeat Cisarik\u2019s dissent. For example, the dissent emphasized that pretrial discovery promotes fair, efficient, and expeditious proceedings leading to the truth, rather than \u201ctrial as a battle of wits\u201d (Cisarik, 144 Ill. 2d at 345-46, 579 N.E.2d at 876 (Miller, J., dissenting, joined by Freeman, J.)), and defendants here remark that the objectives of pretrial discovery include \u201cenhanc[ing] the truth-seeking process,\u201d and \u201cstop[ping] last minute trickery.\u201d The dissent stated that comparing a day-in-the-life film to other types of demonstrative evidence, such as a chart or graph, \u201coverlooks the special nature\u201d and \u201cpowerful and distinctive nature\u201d of a day-in-the-life film (Cisarik, 144 Ill. 2d at 346, 579 N.E.2d at 876 (Miller, J., dissenting, joined by Freeman, J.)), and defendants echo that a day-in-the-life video \u201cis virtually unique in its probative impact,\u201d and \u201cable to inform and promote a better understanding *** as no other evidence can do\u201d (emphasis in original). Based on these principles about discovery and the power of film, the dissent expressed concern that the opinion was \u201celiminating [the] defendants\u2019 discovery rights on the ground that the proposed film must ultimately satisfy tests for admissibility at trial\u201d (Cisarik, 144 Ill. 2d at 345, 579 N.E.2d at 876 (Miller, J., dissenting, joined by Freeman, J.)) and \u201crevert[ing] to the kind of trial by ambush that can result when discovery rights are ignored\u201d (Cisarik, 144 Ill. 2d at 346, 579 N.E.2d at 876 (Miller, J., dissenting, joined by Freeman, J.)). Similarly, defendants now contend they were \u201cambushed\u201d by the video and \u201cin the age of full disclosure, the proceedings below are hard to fathom.\u201d Defendants\u2019 arguments do not persuade us to contravene Cisarik and conclude that the Apulellos\u2019 video should have been treated as additional testimony or substantive evidence, because it is not within our authority to overrule the supreme court or modify its decisions. Walton v. Norphlett, 56 Ill. App. 3d 4, 5, 371 N.E.2d 978, 979 (1977); Belden Manufacturing Co. v. Chicago Threaded Fastners, Inc., 84 Ill. App. 2d 336, 340, 228 N.E.2d 532, 534 (1967).\nAs for Wiker, it concerned a surveillance video that was never used at trial; therefore, it was only dictum when the court indicated a surveillance video must be disclosed before it can be used at a trial even for cross-examination. Wiker, 314 Ill. App. 3d at 430, 732 N.E.2d at 99. We also point out that the court gave no indication when such disclosure must occur. Wiker, 314 Ill. App. 3d at 430, 732 N.E.2d at 99. Therefore, Wiker\u2019s value here is nominal, at best. In defendants\u2019 other case, Warrender, the court found that a discovery violation occurred when the defendant kept a surveillance video of the plaintiff for two months before turning it over. Warrender, 304 Ill. App. 3d at 270, 710 N.E.2d at 519. However, nothing comparable occurred here. The Apulellos\u2019 video was disclosed and tendered at the first opportunity. Filming began about three weeks before trial and took about one week to complete. The raw footage was then reviewed and edited by the Apulellos\u2019 attorney during the week preceding trial, and was finalized on a Friday. The Apulellos\u2019 attorney disclosed and tendered the video on the following Monday, supplementing the prior interrogatory answer that there was no video of the accident victims. Defendants\u2019 additional contention that the video should have been barred outright because the Apulellos delayed in creating it and did not disclose it at least 60 days before trial pursuant to Supreme Court Rule 218(c)) (166 Ill. 2d R. 218(c)) is unpersuasive, given that the record suggests the court modified the discovery deadline. Defendants do not deny the Apulellos\u2019 assertion that depositions were being taken by both sides until a week before trial. Moreover, since the purpose of the video was to illustrate the evidence regarding Lilia\u2019s life at the time of trial, it would make little sense to record her activities months in advance.\nThus, we are not persuaded by defendants\u2019 arguments that a retrial is warranted because the day-in-the-life video was disclosed and tendered too late in the proceedings.\nDefendants\u2019 second main contention about the video is that they were entitled to discover the plaintiffs\u2019 outtakes but the trial judge erroneously read Cisarik as an indication that outtakes are protected by the attorney work product privilege and plaintiffs\u2019 counsel reneged on an agreement to surrender them. Defendants argue Cisarik's \u201ctrue holding\u201d does not support the judge\u2019s ruling and urge this court to consider that the Cisarik briefs filed in the supreme court and now appended to defendants\u2019 reply brief did not ask the court to conclude that outtakes are privileged. Defendants also argue the trial judge should have stricken the affidavit of the Apulellos\u2019 attorney in which he described his interaction with defense counsel, because the affidavit contradicted an on-the-record statement that there was an agreement to tender all the outtakes. Defendants contend that the prejudice which resulted from their inability to use the outtakes entitles them to a new trial without the film.\nThe Apulellos respond that defendants already conceded on the record that Cisarik shielded the Apulellos\u2019 outtakes from discovery, and, therefore, the argument is waived on appeal. Further, the concession was correct; the trial judge\u2019s application of the case was also correct; and this intermediate court of appeal has no authority to contradict a higher court\u2019s opinion. In a motion ordered taken with the case, the Apulellos contend the Cisarik briefs are not properly before this court and should be stricken from defendants\u2019 reply brief. As for the accuracy of their attorney\u2019s affidavit regarding the extent of his agreement with defense counsel, according to the Apulellos, the record discloses they consistently refused to produce their own outtakes based on Cisarik and its indications about outtakes and the attorney work product doctrine. The Velardes add the record shows they were not involved in the dispute about the outtakes.\nWe find defendants waived any contention they were prejudiced by their lack of access to the Apulellos\u2019 outtakes, because defendants failed to object when the edited video was first shown to the jury during the Apulellos\u2019 opening statements and when it was used to illustrate witness testimony. Chubb/Home Insurance Cos. v. Outboard Marine Corp., 238 Ill. App. 3d 558, 573, 606 N.E.2d 423, 573 (1992) (failure to timely object waives question for purposes of review).\nAn additional reason for finding waiver is that defendants conceded on the record on February 1, 2002, that they were not entitled to the Apulellos\u2019 outtakes, based on Cisarik and the attorney work product doctrine. The transcript quoted earlier indicates defense counsel \u00a3<disagree[d] with Cisarik\u201d and thought the supreme court\u2019s determination was \u201cwrong,\u201d but that he conceded the decision supported the Apulellos\u2019 position.\nFurthermore, the concession about access to the outtakes was correct, because Cisarik plainly states that \u201copposing counsel has no right to intrude into the production of [a day-in-the-life film].\u201d Cisarik, 144 Ill. 2d at 342, 579 N.E.2d at 875. We disagree with defendants\u2019 new assertion that this means only that opposing counsel has no right to attend filming. If this were the case, the supreme court would have left intact some portion of the protective order it contemplated, instead of \u201creversing] both the trial court and the appellate court as to the appropriateness of the protective order.\u201d Cisarik, 144 Ill. 2d at 343, 579 N.E.2d at 875. As already summarized above, the protective order entered by the trial court in Cisarik provided for the defense to be present when plaintiff filmed the infant and for the defense to receive a copy of every single frame recorded (Cisarik, 144 Ill. 2d at 341, 579 N.E.2d at 874), and the appellate court reversed the requirement that defense counsel be present during filming but reiterated that the defendants were \u201centitled to view all of the film taken\u201d and \u201cmay use any film taken and not used by the plaintiff.\u201d Cisarik, 193 Ill. App. 3d at 45, 549 N.E.2d at 842. However, none of these provisions survived the supreme court\u2019s reversal. Cisarik, 144 Ill. 2d at 343, 144 Ill. 2d at 875. We also point out that the dissent \u2014 in a paragraph which defendants have chosen not to echo here \u2014 expressed concern that Cisarik\u2019s plaintiff was challenging only whether the defense had a right to be present during filming, yet the court was reversing all the lower courts\u2019 discovery guidelines (including the requirement that the defense receive footage edited-out and unused by the plaintiff\u2019s counsel). Cisarik, 144 Ill. 2d at 345, 579 N.E.2d at 875 (Miller, J., dissenting, joined by Freeman, J.). Because of the dissent, there is no question that Cisarik intentionally excluded the plaintiffs outtakes from discovery by the defense. Accordingly, we have no reason to contemplate the Cisarik briefs attached to defendants\u2019 reply brief and will not consider the Apulellos\u2019 motion to strike the attachment as improper.\nWe are also unpersuaded that the trial judge erred by denying, without comment, defendants\u2019 motion to strike the sworn statement of the Apulellos\u2019 attorney regarding his meeting with defense counsel about use of the video at trial. See Hartgraves v. Don Cartage Co., 63 Ill. 2d 425, 428, 348 N.E.2d 457, 459 (1976) (an affidavit is insufficient to amend or correct the record). The transcripts, including irrelevant portions not summarized above, do not support defendants\u2019 assertion that the Apulellos\u2019 attorney expressly acknowledged in open court that he had agreed to relinquish his own outtakes or implicitly acknowledged an agreement to that effect by failing to contradict defense counsel\u2019s on-the-record statements. The transcript of February 1, 2002, in particular indicates that the Apulellos\u2019 counsel (a) immediately countered the assertion that defendants were entitled to the original, unedited footage, and (b) even referenced specific legal authority, Cisarik, 144 Ill. 2d 339, 579 N.E.2d 873, in support of his position that plaintiffs\u2019 outtakes were privileged under the attorney work product doctrine. Furthermore, the proceedings suggest that defense counsel initially believed he was legally entitled to plaintiffs\u2019 outtakes and, thus, no agreement to that effect was necessary. At first he characterized the film as a \u201ctestimonial presentation,\u201d contradicting Cisarik\u2019s clear indication that a day-in-the-life film is merely \u201cdemonstrative evidence.\u201d Cisarik, 144 Ill. 2d at 341, 579 N.E.2d at 874. He also stated that he was entitled by law to be present during filming, demonstrating his lack of familiarity with Cisarik\u2019s facts. Then he admitted, after he supposedly negotiated release of plaintiffs\u2019 outtakes, that he was unfamiliar with Cisarik, which is a case directly on point. Accordingly, after reviewing Cisarik during a break in the proceedings, he conceded that he was mistaken about a defendant\u2019s right to a plaintiffs unused footage. The fact that only the Apulellos\u2019. counsel was familiar with pertinent case law when the attorneys met about the contents of the video makes it improbable that the supposed agreement to relinquish the Apulellos\u2019 outtakes ever occurred. In addition, it is arguable that the February 1, 2002, transcript includes a concession that the defense merely asked for the outtakes. The defense attorney \u201cclarif[iedj\u201d two things during the proceedings. First, that he had withdrawn his objection to the Apulellos\u2019 use of the video because the Apulellos\u2019 counsel agreed to \u201ctake out\u201d the audio and certain scenes. Second, that he had stated, \u201cI want the outtakes.\u201d For all these reasons, we reject defendants\u2019 assertion that the trial judge should have stricken the affidavit as an improper amendment or correction of the transcripts.\nDefendants\u2019 next major contention about the video is that any probative value of the video was outweighed by the danger of prejudice to defendants. The Apulellos respond that the video cannot be characterized as unfairly prejudicial when it was approved by defense counsel, raised no objection, and is actually bland and innocuous. The Velardes suggest that any further response from them would be superfluous.\nWe have watched the exhibit at issue. It shows Lilia engaging in ordinary activities, including waking up, eating meals with her family, taking oral medication, dressing, brushing her hair, stripping linens from her bed, loading the clothes washer and dryer, putting on an overcoat, getting into the passenger\u2019s seat of a sport utility vehicle, and visiting her mother\u2019s house and a grocery market. We note that in many scenes, a family member prompts Lilia or helps Lilia in some other way to complete the activity, such as when she is encouraged to take the oral medication or do the laundry. Noteworthy exceptions to this pattern are at her mother\u2019s house, where Lilia rearranges the pillows on the living room sofa so that she can nap, and at the market where she strays away while her sister fills the shopping cart. Throughout the film, Lilia appears anxious and easily confused and she is frequently tearful. In our opinion, however, the film does not dwell on her discomfort. Additionally, the film seems to illustrate the impact of head trauma and possibly resulting medication on Lilia\u2019s life, consistent with witness testimony indicating, as examples, that Lilia took medication prescribed by her neurologist, had difficulty sustaining attention, needed someone to \u201ccue her in\u201d and give reminders, could not think flexibly or find solutions to problems, could not manage utensils, and was frustrated, fearful, anxious and extremely depressed. Testimony to that effect would have been given even if the illustrating video was never presented to the jury. Furthermore, the testimony regarding Lilia\u2019s life after the collision was not closely balanced and we cannot conclude that the video tipped the verdict in plaintiffs\u2019 favor. In addition, although defendants contend that some of the scenes were irrelevant and that the probative value of other scenes was destroyed because they were cut short, these, contentions are unpersuasive, given that the video was edited to the satisfaction of defense counsel before it was used during opening statements. We also reject defendants\u2019 unsubstantiated suggestion that the video may have included exaggerated and self-serving behaviors. Defendants do not cite any portion of the record indicating they objected to use of the video on this basis at trial; thus, they cannot now complain of error. Thomas v. Industrial Comm\u2019n, 78 Ill. 2d 327, 336, 399 N.E.2d 1322, 1326 (1980). Furthermore, defendants chose not to have their own medical expert examine Lilia and never called upon Lilia to testify, giving up opportunities to discredit the staged evidence, if in fact, it was staged. Defendants now protest that calling Lilia herself would have made defendants \u201clook cruel and heartless,\u201d actually lending credibility to a video in which Lilia appears to this court to be confused and easily upset. In addition, the silenced video was narrated by trial witnesses whose testimony was subject to additional objection, cross-examination, and curative instruction, if warranted, and defendants are not arguing that the trial judge improperly rejected defendants\u2019 attempts to limit the impact of the video through these means. We conclude it is most improbable that the jury was unduly influenced by a film which shows Lilia engaging in commonplace activities in a manner that conformed with trial testimony about her injuries and disabilities. It was not an abuse of discretion to allow the jury to see the video.\nIn summary, we are not persuaded by any of defendants\u2019 arguments regarding the Apulellos\u2019 use of the day-in-the-life video at trial.\nDefendants\u2019 fourth main contention on appeal concerns the jury\u2019s allocation of negligence, 60%, 35%, and 5% to CNIC, CC&P and Lilia, respectively. Defendants argue none of the responsibility should have been assigned to CC&fl since it operated the train with \u201cdue care,\u201d and that at least half of the responsibility should have been attributed to Lilia. In a negligence action, the plaintiff must establish that the defendant owed a duty of care, that the defendant breached that duty, and that the plaintiff incurred injuries proximately caused by the breach. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 114, 649 N.E.2d 1323, 1326 (1995). The existence of a duty is a question of law for the court to decide, while the issues of breach and proximate cause are factual matters for the jury to decide, provided there is a genuine issue of material fact regarding those issues. Espinoza, 165 Ill. 2d at 114, 649 N.E.2d at 1326. Defendants assert that if fault is properly reallocated, Lilia will be statutorily barred from recovering damages from either defendant because her own contributory fault was more than 50% of the proximate cause of her injuries (see 735 ILCS 5/2\u2014 Ill. (West 1994)), or at least CC&P will be apportioned less than 25% of the liability and therefore rendered only severally liable for Lilia\u2019s nonmedical damages (see 735 ILCS 5/2\u2014Ill. (West 1994)). The Apulellos and the Velardes respond that the evidence supported the jury\u2019s verdict and allocation of fault.\nThe defendants unsuccessfully presented their allocation-of-negligence arguments to the trial judge in a single motion seeking judgment notwithstanding the verdict for CC&P or a new trial for defendants. CC&P\u2019s motion for judgment notwithstanding the verdict (judgment n.o.v.) should have been granted if all the evidence, viewed mostly favorably to Lilia, so overwhelmingly favored CC&P that no contrary verdict based on that evidence could ever stand. Maple v. Gustafson, 151 Ill. 2d 445, 453, 603 N.E.2d 508, 512 (1992). \u201cThis is clearly a very difficult standard to meet, limiting the power of the circuit court to reverse a jury verdict to extreme situations only.\u201d People ex rel. Department of Transportation v. Smith, 258 Ill. App. 3d 710, 714, 631 N.E.2d 266, 269 (1994) (Smith). \u201cUnquestionably, it is the province of the jury to resolve conflicts in the evidence, to pass upon the credibility of the witnesses, and to decide what weight should be given to the witnesses\u2019 testimony.\u201d Maple, 151 Ill. 2d at 452, 603 N.E.2d at 511-12. \u201cA trial court cannot reweigh the evidence and set aside a verdict merely because the jury could have drawn different inferences or conclusions, or because the court feels that other results are more reasonable.\u201d Maple, 151 Ill. 2d at 452, 603 N.E.2d at 512. \u201cThe court has no right to enter a judgment n.o.v. if there is any evidence, together with reasonable inferences to be drawn therefrom, demonstrating a substantial factual dispute, or where the assessment of credibility of the witnesses or the determination regarding conflicting evidence is decisive to the outcome.\u201d Maple, 151 Ill. 2d at 454, 603 N.E.2d at 512. This court reviews de novo a trial judge\u2019s decision to grant or deny a motion for judgment n.o.v., but like the trial judge, must be careful not to usurp the function of the jury and substitute its own assessment. Jones v. Chicago Osteopathic Hospital, 316 Ill. App. 3d 1121, 1125, 738 N.E.2d 542, 547 (2000).\nOn the other hand, when presented with CC&P and CNIC\u2019s motion for a new trial, the trial judge was expected to weigh the evidence. Maple, 151 Ill. 2d at 454, 603 N.E.2d at 512. However, a new trial should not be granted merely because some evidence is conflicting. Villa v. Crown Cork & Seal Co., 202 Ill. App. 3d 1082, 1089, 560 N.E.2d 969, 973 (1990). Rather, the trial judge should set aside the jury\u2019s verdict if it was contrary to the manifest weight of the evidence, which occurs \u201c \u2018where the opposite conclusion is clearly evident or where the findings of the jury are unreasonable, arbitrary and not based upon any of the evidence.\u2019 \u201d Maple, 151 Ill. 2d at 454, 603 N.E.2d at 512-13, quoting Villa, 202 Ill. App. 3d at 1089, 560 N.E.2d at 973. This type of motion is reviewed for an abuse of discretion (Maple, 151 Ill. 2d at 455, 603 N.E.2d at 513), as is a motion seeking reallocation of fault (Usselmann v. Jansen, 257 Ill. App. 3d 978, 982, 629 N.E.2d 193, 196 (1994)). A reviewing court should be mindful that when ruling on a motion for a new trial, the trial judge \u201c \u2018 \u201chas the benefit of [previously observing] the appearance of the witnesses, their manner in testifying, and the circumstances aiding in the determination of credibility.\u201d \u2019 \u201d Maple, 151 Ill. 2d at 456, 603 N.E.2d at 513, quoting Buer v. Hamilton, 48 Ill. App. 2d 171, 173-74, 199 N.E.2d 256, 257 (1964), quoting Hulke v. International Manufacturing Co., 14 Ill. App. 2d 5, 47 (1957).\nDefendants now summarize only certain evidence and related legal principles. This is not an effective means of establishing that all the evidence, viewed most favorably to Lilia, overwhelmingly favored CC&P or that the manifest weight of the evidence favored CC&P and CNIC. For example, CC&P contends the evidence shows CC&P acted reasonably and that Lilia did not prove that CC&P negligently failed to keep an adequate lookout and negligently failed to decrease speed when the train crew saw vehicles continue to go over the track crossing. CC&P asserts the evidence showed the train\u2019s engineer, Dallas Harken, and conductor, John Snapp, were looking ahead for vehicles, while traveling at a lawful rate of speed. Further, engineer Harken saw vehicles continuing to cross when the train was still \u201ca pretty far distance away,\u201d and conductor Snapp saw them when the train was about 600 feet from the crossing and stated it was not uncommon for cars to cross when a train was approaching. CC&P cites Robertson v. New York Central R.R. Co., 388 Ill. 580, 585, 58 N.E.2d 527, 529 (1944), and Brennan v. Wisconsin Central, Ltd., 227 Ill. App. 3d 1070, 1084, 591 N.E.2d 494, 504 (1992), for the proposition that under these circumstances Lilia was under a duty to stop and that CC&P was under no duty to stop. Further, Harken saw another vehicle cross when the train was within 100 feet of the crossing, and then another, which was \u201cnot unusual\u201d to see. A witness placed Lilia in the next lane and immediately behind this car. Snapp did not have sufficient time prior to the collision with Lilia to order Harken to stop, and Harken applied the emergency brake on impact. We conclude, however, that although this evidence indicates the train crew was looking for vehicles and decreased speed at impact, it does not indicate that it was necessarily reasonable for the train to continue at full speed to this particular intersection. Furthermore, the Robertson case that defendants rely upon indicates that a train stop is required when it is apparent that a motorist has not heard or will not heed a train\u2019s signal (Robertson, 388 Ill. at 584, 58 N.E.2d at 529; see also Espinoza, 165 Ill. 2d at 115, 649 N.E.2d at 1327), yet defendants fail to address Snapp\u2019s admission that when he observed cars going over the crossing when the train was still 600 feet away, even he thought there might be something wrong ahead and that either he or Harken questioned, \u201cAre those cars going to stop or not[?]\u201d Defendants contend Liba was under a duty to stop, but they fail to address the admitted fact that the intersection\u2019s warning gates and lights were not functioning properly. There was also evidence suggesting that the approaching train was all but invisible to Lilia because the tracks bisected Army Trail Road at such an angle that she could not have seen the rapidly approaching train unless she severely turned her head to the left, and that even if she had turned, her view would have been obstructed by bordering trees and bushes. Although defendants contend Lilia was under a heightened duty to proceed cautiously because her view was obstructed (see Duffy v. Cortesi, 2 Ill. 2d 511, 518, 119 N.E.2d 241 (1954)), evidence of negligence can be rebutted by proof that the person acted reasonably under the circumstances. Lindquist v. Chicago & Northwestern Transportation Co., 309 Ill. App. 3d 275, 283, 772 N.E.2d 270, 276 (1999). In addition, whether a person acted reasonably under the circumstances is a question of fact, unless the facts are undisputed and reasonable minds could not disagree. Lindquist, 309 Ill. App. 3d at 283, 722 N.E.2d at 276.\nDefendants engage in a similarly incomplete and ineffective analysis of some of the evidence presented to the jury in support of plaintiffs\u2019 allegations that CC&P failed to obey an applicable operating rule and failed to sufficiently sound the train\u2019s horn.\nWhen considering all the evidence in a light most favorable to Lilia, we cannot say that it so overwhelmingly favored judgment for CC&P on plaintiffs\u2019 claims that the verdict against the train operator cannot stand. Nor can we say that the negligence verdict or the 60%, 35%, and 5% apportionment of fault amongst the various parties involved in the collision was against the manifest weight of the evidence. The record does not indicate that the opposite conclusions were clearly evident or that the jury\u2019s findings were unreasonable, arbitrary, or not based on any of the evidence. The jury\u2019s verdict was supported by the evidence and there was no apparent basis for the trial court to disturb it. Accordingly, the trial court\u2019s ruling as to CC&P\u2019s motion for judgment n.o.v. and defendants\u2019 motion for a new trial is affirmed.\nWe next address defendants\u2019 fifth main contention on appeal: the jury\u2019s noneconomic damage awards were excessive as a matter of law and should be subjected to a new trial or remitted. According to defendants, Fidel\u2019s $15.5 million award for pain and suffering and disability should be reduced by $11.5 million, and his wife Francisca\u2019s $5.5 million award for pain and suffering and disability should be reduced by $4 million. Also, Lilia\u2019s $28 million award for pain and suffering and disability should be reduced by $21 million, and her husband Rafael\u2019s $3.5 million award for loss of consortium should be reduced by $1.5 million. The Apulellos and Velardes respond that the damage awards were fair and reasonable in light of the permanent and catastrophic injuries that occurred.\nThe amount of a verdict is generally at the discretion of the jury. Dahan v. UHS of Bethesda, Inc., 295 Ill. App. 3d 770, 692 N.E.2d 1303 (1998). A damage award is not subject to scientific computation. Schaffner v. Chicago & North Western Transportation Co., 161 Ill. App. 3d 742, 759, 515 N.E.2d 298, 308 (1987). A question of damages is to be determined by the trier of fact, and \u201ca reviewing court will not lightly substitute its opinion for the judgment rendered in the trial court.\u201d Richardson v. Chapman, 175 Ill. 2d 98, 113, 676 N.E.2d 621, 628 (1997); Epping v. Commonwealth Edison Co., 315 Ill. App. 3d 1069, 734 N.E.2d 916 (2000). However, a court will order a remittitur, or, if the plaintiff does not consent, a new trial, if a verdict is excessive. Best v. Taylor Machine Works, 179 Ill. 2d 367, 412-13, 689 N.E.2d 1057, 1079-80 (1997). In Richardson, the supreme court indicated that an award may be viewed as excessive if it (1) exceeds the range of fair and reasonable compensation, (2) is the result of passion or prejudice, or (3) is so large that it shocks the judicial conscience. Richardson, 175 Ill. 2d at 113, 676 N.E.2d at 628. But remittitur will not be ordered when an award \u201c \u2018falls within the flexible range of conclusions which can reasonably be supported by the facts.\u2019 \u201d Best, 179 Ill. 2d at 412, 689 N.E.2d at 1079, quoting Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 470, 605 N.E.2d 493, 510 (1992). The opinion also indicates that when reviewing an award of compensatory damages for nonfatal injuries, a court may consider, among other things, \u201cthe permanency of the plaintiffs condition, the possibility of future deterioration, the extent of the plaintiffs medical expenses, and the restrictions imposed on the plaintiff by the injuries.\u201d Richardson, 175 Ill. 2d at 114, 676 N.E.2d at 628.\nDefendants assert that the verdicts meet not just one but all three of the standards for construing the verdicts as \u201cway out of line.\u201d\nDefendants cite Richardson, 175 Ill. 2d at 113, 676 N.E.2d at 628, in particular, for the proposition that the jury\u2019s awards \u201cfall[ ] outside the range of fair and reasonable\u201d compensation. They argue an appropriate range may be determined by reviewing (a) reports of approximately 65 jury verdicts rendered in Cook County, and (b) published opinions from Illinois and other states, such as Louisiana, New York, and Texas, which supposedly involve injuries \u201csimilar to those suffered here.\u201d Defendants\u2019 reliance on Richardson, however, is not well placed. Although Richardson stated that an award may be deemed excessive if it falls outside a fair and reasonable range (Richardson, 175 Ill. 2d at 113, 676 N.E.2d at 628), the court actually refused to engage in a comparison for a plaintiff who \u201csuffered devastating, disabling injuries\u201d in a two-car collision and indicated that Illinois courts have traditionally declined to make comparisons when determining whether a particular award is excessive. Richardson, 175 Ill. 2d at 114, 676 N.E.2d at 628, citing Tierney v. Community Memorial General Hospital, 268 Ill. App. 3d 1050, 1065, 645 N.E.2d 284 (1994); Northern Trust Co. v. County of Cook, 135 Ill. App. 3d 329, 481 N.E.2d 957 (1985). See also Carlson v. Dorsey Trailers, Inc., 50 Ill. App. 3d 748, 365 N.E.2d 1065 (1977) (indicating that reference to other awards is of doubtful relevance); Lawson v. Belt Ry. Co. of Chicago, 34 Ill. App. 3d 7, 27-28, 339 N.E.2d 381, 398 (1975) (\u201cOne wrongfully injured by another should be permitted to secure a recovery based upon the evidence of his own particular loss, rather than by consultation of a schedule of previous awards\u201d).\nOne of the cases Richardson relied upon, Tierney, was a medical malpractice case in which the plaintiff suffered \u201csubstantial\u201d injuries and \u201cunique\u201d suffering after having a stroke and was expected to have a \u201cparticularly difficult time adjusting to his new disabilities.\u201d Tierney, 268 Ill. App. 3d at 1064, 645 N.E.2d at 294. The court refused to consider other jury verdicts, stating:\n\u201cWith regard to defendants\u2019 arguments that the jury\u2019s verdict should be compared to other similar awards and thereby found to be excessive, this is simply not the law in Illinois. [Citations.] It is not within our purview to establish a new standard of review for such cases when the clear weight of Illinois authority has been to reject the 'comparison\u2019 concept.\u201d Tierney, 268 Ill. App. 3d at 1065, 645 N.E.2d at 294.\nDefendants cite two other cases for the proposition that we should examine prior verdicts to establish a comparative range. However, the court\u2019s \u201ccomparison\u201d in Johnson v. May, 223 Ill. App. 3d 477, 488, 585 N.E.2d 224, 231-32 (1992), was only a passing reference in support of the court\u2019s conclusion that judgment for the defendants was \u201ccontrary to the weight of the evidence.\u201d The court summarized extensive medical and psychiatric testimony which \u201coverwhelmingly\u201d supported plaintiffs acute-posttraumatic-stress-disorder claim (Johnson, 223 Ill. App. 3d at 485, 585 N.E.2d at 230) and discredited the defendant\u2019s only medical expert (Johnson, 223 Ill. App. 3d at 486, 585 N.E.2d at 230). The court also pointed out various problems with other evidence which purportedly showed the plaintiff was only faking injury. Johnson, 223 Ill. App. 3d at 487, 585 N.E.2d at 231. After engaging in this extensive factual analysis, the court also commented:\n\u201cThe reported case law shows that persons afflicted with posttraumatic stress disorder arising from accidents comparable in severity to [the plaintiffs] have received as much as a half a million dollars in noneconomic damages from the negligent party. While the magnitude of that award is scarcely controlling in other cases, we think that it is at least some indicia of just how far off the mark the jury\u2019s verdict [of $20,609.60 for noneconomic damages] was in this case.\u201d Johnson, 223 Ill. App. 3d at 488, 585 N.E.2d at 231.\nWe do not read Johnson to mean that a bare comparison of dollar figures is an appropriate basis for deeming an award excessive.\nDefendants\u2019 other case, House v. Stocker, 34 Ill. App. 3d 740, 340 N.E.2d 563 (1975), is also only somewhat helpful. In that case, the plaintiff sustained relatively limited injuries to ligaments in his lower back and left knee which could be easily compared with the lower-back and related injuries sustained by other plaintiffs. In fact, the court rejected certain cases cited by the appellee, as too factually dissimilar, because none of them \u201csolely involve[d] soft tissue contusions, spasms, sprains and abrasion with possible cartilage tear in a knee.\u201d House, 34 Ill. App. 3d at 746, 340 N.E.2d at 568. Based in part on its comparison with the injuries and verdicts disclosed in other cases, the court reduced the jury\u2019s award by about a third. In contrast to the limited injuries described in House, however, the Velardes and Apulellos sustained what are aptly characterized as \u201csubstantial\u201d and \u201cdevastating\u201d physical and psychological injuries and consequences that will be long term, if not permanent, even with medical intervention. The evidence established, for example, that Lilia suffers from organic brain damage, postconcussion syndrome, posttraumatic stress disorder, severe and permanent depression, and \u201cahedonia,\u201d which is the inability to experience pleasure. In her early 40s, she has been declared incompetent and is no longer capable of undertaking her former responsibilities, such as managing the family finances and working as an assembly line supervisor. Her long-term prospects are poor. Her husband Rafael, who is about the same age, used to have \u201ca wife, [a] best friend and [a] lover,\u201d but no longer has \u201cany of that\u201d and interacts with Lilia as if she is a young child. Her father Fidel, who was found in the rear cargo area of the wrecked Ford Explorer, also suffers from permanent brain injury, resulting in depression and permanent memory problems, diminished attention span, decreased right side coordination, and an abnormal gait. Before the accident he was a retired landscaper who maintained a well-manicured yard, but he now needs ongoing physical, occupational, and speech therapy, and requires supervision because he poses a risk to his own safety. Francisca\u2019s permanent brain injury is more severe than her husband\u2019s, and she also suffers from severe depression and posttraumatic stress disorder. Although in her early 70s, she worked about 50 hours a week on an assembly line and was considered an exceptional and dependable employee. She was unable to return to work after the accident. Accordingly, we decline to depart from \u201cthe clear weight of Illinois authority [which] reject[s] the \u2018comparison\u2019 concept.\u201d Tierney, 268 Ill. App. 3d at 1065, 645 N.E.2d at 294.\nDefendants\u2019 additional contentions that the awards are so large they must have been the result of passion or prejudice on the part of the jury and they shock the judicial conscience are adequately supported with citation to Richardson. Richardson, 175 Ill. 2d at 112-14, 676 N.E.2d at 627-29. Nevertheless, defendants\u2019 contentions are not persuasive. Although the awards are substantial, we cannot say they are unsupported by the record on appeal. Furthermore, the figures were returned by a jury that heard all of defendants\u2019 evidence and arguments before adjourning for deliberations. The trial judge, who also heard all of defendants\u2019 evidence and arguments, was not persuaded by defendants\u2019 posttrial arguments that the awards were excessive. We also point out that there is no explanation as to why defendants chose the specific figures they suggest would be appropriately awarded to these plaintiffs. For instance, they contend Cook County juries generally return \u201cawards in the mid-six figure range\u201d on loss of consortium claims, yet they recommend that Rafael receive $2 million after remitittur. We decline to second-guess the jury and reduce the awards to figures that appear to have been randomly chosen by defendants.\nDefendants\u2019 final contention is that despite defendants\u2019 failure to object, even in a sidebar, portions of the Apulellos\u2019 and Velardes\u2019 separate closing arguments were prejudicial to such an extent that a new trial is necessary. Defendants also remark upon some of the Apulellos\u2019 opening statements but have waived this contention by failing to support it with citation to any authority. Avery v. State Farm Mutual Automobile Insurance Co., 321 Ill. App. 3d 269, 277, 746 N.E.2d 1242, 1250 (2001). The Apulellos and Velardes respond that there is no merit to this final argument.\nThe scope of closing arguments is within the trial judge\u2019s sound discretion, and an argument must be prejudicial before a reviewing court will reverse on this basis. Lewis v. Cotton Belt Route-St. Louis Southwestern Ry. Co., 217 Ill. App. 3d 94, 110-11, 576 N.E.2d 918, 932 (1991). Further, attorneys are allowed broad latitude in drawing reasonable inferences and conclusions from the evidence (Lewis, 217 Ill. App. 3d at Ill. 576 N.E.2d at 932), and an opponent\u2019s failure to object to allegedly prejudicial remarks during closing arguments generally waives the issue for review (Simmons v. University of Chicago Hospitals & Clinics, 162 Ill. 2d 1, 13, 642 N.E.2d 107, 113 (1994)).\nA court of review should \u201cstrictly apply the waiver doctrine unless the prejudicial error involves flagrant misconduct or behavior so inflammatory that the jury verdict is a product of biased passion, rather than an impartial consideration of the evidence.\u201d Gillespie v. Chrysler Motors Corp., 135 Ill. 2d 363, 375-76, 553 N.E.2d 291, 297 (1990). If arguments were so egregious that they deprived a litigant of a fair trial and substantially impaired the integrity of the judicial process itself, they may be reviewed even though no objection was made. Gillespie, 135 Ill. 2d at 375-77, 553 N.E.2d at 297-98. This standard has been applied in cases involving \u201cblatant mischaracterizations of fact, character assassination, or base appeals to emotion and prejudice.\u201d Gillespie, 135 Ill. 2d at 377, 553 N.E.2d at 298. A leading opinion on the standard is Belfield v. Coop, 8 Ill. 2d 293, 134 N.E.2d 249 (1956).\nBelfield was a will contest involving allegations and evidence that only one of the various defendants exerted undue influence over the testator, yet the plaintiffs\u2019 attorneys referred to all of the defendants as \u201cthieves,\u201d \u201cusurpers,\u201d and \u201cdefrauders.\u201d Belfield, 8 Ill. 2d at 312, 134 N.E.2d at 259. The plaintiffs\u2019 attorneys also belittled one of the defense attorneys, Samuel Saxon, by repeatedly referring to him as \u201cSammy,\u201d and implied that he was a disreputable lawyer. Belfield, 8 Ill. 2d at 312, 134 N.E.2d at 259. At the same time, the plaintiffs\u2019 attorneys praised their own high ethics and conduct and injected the fact that one of them was a county judge from a neighboring county who had extensive experience with wills and was duty-bound to uphold wills, suggesting there was something wrong with the will at issue, otherwise the judge would not be in the circuit court representing the plaintiffs. Belfield, 8 Ill. 2d at 312, 134 N.E.2d at 259. On review, the court concluded that so much of this closing argument was prejudicial and unwarranted that the trial judge should have halted the proceedings, despite the lack of objection, to insure that the litigants received a fair trial. Belfield, 8 Ill. 2d at 312-13, 134 N.E.2d at 259.\nThe Belfield standard was also discussed in an appeal from a medical malpractice judgment, Simmons, 162 Ill. 2d at 12-13, 642 N.E.2d at 112, after the plaintiffs\u2019 attorney drew attention to the defendants\u2019 failure to call as witnesses other physicians and hospital employees who were on duty at the time of the alleged medical error. The plaintiffs\u2019 attorney remarked at length about the hospital staffs failure to rally to the accused physician\u2019s defense, referred to their absence as the \u201c \u2018most glaring evidence of [the physician\u2019s] negligence,\u2019 \u201d and concluded, \u201c \u2018When your own people won\u2019t stand behind you and testify in your behalf, then you know you\u2019re wrong.\u2019 \u201d Simmons, 162 Ill. 2d at 11-12, 642 N.E.2d at 112. The court determined that the plaintiffs\u2019 closing arguments did not deny the defendants a fair trial or result in a deterioration of the judicial process, and it remarked upon the defendants\u2019 failure to raise an objection or seek a curative instruction, even through a sidebar. Simmons, 162 Ill. 2d at 12-13, 642 N.E.2d at 113. It stated, \u201cBecause defendants failed to do these things, the issue has been waived. Defendants should not benefit by their failure to object or request a sidebar and wait for a jury verdict, only to raise this issue in a post-trial motion and on appeal in hopes of a new trial.\u201d Simmons, 162 Ill. 2d at 13, 642 N.E.2d at 113.\nWe reach the same conclusions about the closing arguments which defendants now object to for the first time on appeal. The issue has been waived.\nFor instance, the jury was told that Lilia needed the supervision and guidance given to an eight- or nine-year-old, that her sister helped her use the washroom, bathe, and perform other hygiene, that Lilia could not return to her former occupation and was incapable of independently completing ordinary tasks such as doing the household laundry, that she preferred to use her hands instead of a fork at meal time, and that she no longer engaged in meaningful conversations with her sister. Defendants now object, however, that the following statement to the jury was a miseharacterization of the facts:\n\u201c[THE APULELLOS\u2019 COUNSEL]: Disability. Is she disabled? Can she do anything? Go to the bathroom? Eat food? She can\u2019t talk to anybody. She doesn\u2019t have any kind of life. Can\u2019t work anymore. She can\u2019t enjoy life. *** She\u2019s not able to do anything without the assistance of others and she is a danger to herself. She needs somebody to watch her all the time. That\u2019s how disabled she is.\u201d\nContrary to defendants\u2019 assertion, we find these remarks were merely permissible inferences or conclusions based on the evidence about Lilia\u2019s disabilities.\nThe jury was also told that Lilia\u2019s ability to report earlier memories began deteriorating, that she was no longer fluent in two languages, her intellectual functioning was blunted, and she had difficulty writing and remembering words and made mistakes copying from one sheet of paper to another. The jury was also told that Lilia\u2019s long-term prospects are poor. Nevertheless, defendants now object that the Apulellos\u2019 counsel mischaracterized the facts by making statements such as Lilia \u201cwill not get her brain back,\u201d she has a \u201cbroken brain, missing memories, [is] the shadow of a human being, a woman who, according to Dr. Fajardo is basically now heading for a vegetative state.\u201d We reject defendants\u2019 assessment of these remarks.\nWe are similarly unpersuaded that it was prejudicial for the Apulellos\u2019 counsel to say that because defendants \u201cblame[ed] the driver\u201d by eliciting testimony from accident witnesses who were not struck by the train, defendants\u2019 admission of responsibility was actually a \u201chalf truth.\u201d The \u201chalf truth\u201d remark is an even milder characterization than the one made during the Simmons trial which did not warrant retrial: \u201c \u2018When your own people won\u2019t stand behind you and testify in your behalf, then you know you\u2019re wrong.\u2019 \u201d Simmons, 162 Ill. 2d at 12, 642 N.E.2d at 112. Defendants highlight other, even less significant characterizations, which do not warrant discussion.\nDefendants also contend the Apulellos improperly appealed to the jury\u2019s emotions by referring to other family members during closing arguments. Defendants cite LeMaster v. Chicago Rock Island & Pacific R.R. Co., 35 Ill. App. 3d 1001, 1014, 343 N.E.2d 65, 76 (1976), for the proposition that referring to nonparty family members during closing arguments is prejudicial. The jury in LeMaster was told the plaintiff had a wife and two young children, even though his action was limited to damages for work-related injuries and did not include a claim for family support or loss of consortium. LeMaster, 35 Ill. App. 3d at 1013-14, 343 N.E.2d at 76. The plaintiff testified that he was no longer able to go ice skating with his wife and young children, or go dancing with his wife, and that he needed her assistance to bathe, and then some of this testimony was emphasized during counsel\u2019s closing arguments. LeMaster, 35 Ill. App. 3d at 1013-14, 343 N.E.2d at 76. The trial judge overruled the defendant\u2019s objections to both the testimony and closing arguments, and was affirmed on appeal, because no undue emphasis was placed on the plaintiffs family circumstances and the facts were relevant to the issue of the extent of his injuries. LeMaster, 35 Ill. App. 3d at 1014, 343 N.E.2d at 77. Although the present defendants did not make an objection before the trial judge, they now take issue with a remark by the Apulellos\u2019 counsel that Lilia\u2019s sister, a nonparty, \u201cwould not get her sister back.\u201d We were unable to find this remark in the portion of the record cited by defendants, but did locate a similar reference, 64 pages earlier in the transcript of closing arguments. The Apulellos\u2019 counsel began closing arguments by stating, \u201cLil[ia] Apulello will not get her life back. Lil[ia] Apulello will not get her brain back. Her husband will not get his wife back. Her sister won\u2019t get her sister back.\u201d We point out that Lilia\u2019s sister was a prominent trial witness; thus, the jury was already well aware of her existence and was not abruptly burdened with an irrelevant or prejudicial fact. Further, in context, the reference is clearly a permissible description of the extent and permanent nature of Lilia\u2019s injuries and disabilities, rather than a prejudicial plea for damages on her sister\u2019s behalf. Defendants contend that the following final words to the jury were impermissible references to non-party family members:\n\u201c[THE APULELLOS\u2019 COUNSEL]: You know, they\u2019re supposed to stop and protect this crossing. If they had stopped and protected it, of course, none of this would have happened, so what [Lilia] did or didn\u2019t do has nothing to do with what caused the accident. They set it all in motion. They did, the railroads.\nThe stop and protect that really is at issue today is that you have to stop; you have to protect; you have to protect this family.\u201d\nIn light of the fact that all of the plaintiffs were indisputably \u201cfamily\u201d\u2014husband Fidel, wife Francisca, daughter Lilia, and son-in-law Rafael\u2014 we construe this concluding remark as a permissible, nonprejudicial reference to parties before the jury, rather than to nonparty family members.\nFinally, defendants address two aspects of the Velardes\u2019 closing arguments. Although defendants did not object in the trial court, they now argue \u201cThe Velarde[s\u2019] counsel compared plaintiffs\u2019 losses to property damage \u2014 a $50 million Monet \u2014 effectively forcing the jury to award more out of sheer guilt [citation]. The guilt trip was compounded by an incorrect statement that the law required a large award [citation].\u201d The following portion of the proceedings is pertinent:\n\u201c[THE VELARDES\u2019 COUNSEL]: Now, if this were an easier case and we weren\u2019t dealing with these types of injuries and this was a case of property damage, and if that train had come barreling through that crossing at 50 miles per hour and had hit a truck and that truck was carrying a painting, a Monet painting, an impressionistic painting, and it destroyed it, and there was a lawsuit that was ensued and every expert in the world testified this was one of the great paintings in the world, this Mr. Monet, who\u2019s been deceased for a lot of years, who was truly one of the great painters, and every expert testified that that painting had a value of $50 million and one of the jurors went back and said, you know, I don\u2019t like impressionistic paintings, I just don\u2019t appreciate it, I can\u2019t award $50 million, I could maybe award $25 million. Well, that wouldn\u2019t be full justice. It wouldn\u2019t be fair justice. It would be half justice.\nAnd wouldn\u2019t it be a shame in this case if this case were decided for any reason other than the law and the facts.\nLet\u2019s not confuse the two cases, a property damage case and a case like this, a case applicable to catastrophic, devastating injuries to Fidel and Francisca, which by necessity under the law have to be large.\nI want to talk a little bit about the elements of damages the Judge is going to instruct you on ***.\u201d\nWe fail to comprehend defendants\u2019 argument regarding the analogy to a Monet painting. We do not see how referring to a skillful painter or expensive artwork could in any way cause jurors to feel \u201cguilt\u201d over injuries they had no hand in causing. Further, because none of the cited cases discuss a \u201cguilt trip\u201d standard, we construe defendants\u2019 argument as an assertion that the Monet analogy was, in some way, an appeal to emotion or prejudice. See Gillespie, 135 Ill. 2d at 377, 553 N.E.2d at 298. Nevertheless, we read the quoted remarks as indications that the jurors should rely on the \u201cexpert [witness] testimony]\u201d regarding the \u201cvalue\u201d of plaintiffs\u2019 losses and award the \u201cfull\u201d and \u201cfair\u201d amount justified by \u201cthe law and facts\u201d of the case, regardless of whether the jurors \u201clike[d]\u201d or \u201cappreciate[d]\u201d the plaintiffs personally. Accordingly, we do not consider the Monet analogy to be inappropriate or prejudicial. Additionally, it is less than clear what the Velardes\u2019 counsel intended to convey by the sentence regarding \u201ca case applicable to catastrophic damages to Fidel and Francisca, which by necessity under the law have to be large.\u201d The jumbled statement did not elicit an objection and is potentially only a mistranscription of what was actually said. Even if we construe it as an inaccurate suggestion that the jurors were required by law to return large verdicts for the Velardes, we do not consider it prejudicial. It was only a vague, passing remark, which was not clarified or emphasized by subsequent argument. Furthermore, defendants participated in a jury instruction conference and are not contending that the trial judge followed the closing arguments with erroneous instructions about the applicable law. In addition, before the Velardes\u2019 counsel began closing arguments, the trial judge cautioned the jurors, twice, to remember that the attorneys\u2019 final arguments were \u201cmerely what they think the evidence has shown.\u201d In light of all these facts, we reject defendants\u2019 assertion that the Velardes\u2019 remark about damages warrants a new trial.\nWe conclude that the Apulellos\u2019 and Velardes\u2019 closing arguments did not deny defendants a fair trial or result in a deterioration of the judicial process. We also note that trial counsel, who heard the remarks firsthand and was able to observe their impact on the jurors, did not consider them worthy of contemporaneous objection, even through a sidebar, or necessitating a curative instruction.\nAffirmed; plaintiffs\u2019 motion taken with the case not considered.\nGORDON and McNULTY, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE McBRIDE"
      }
    ],
    "attorneys": [
      "Weston W Marsh and To\u00f1ita M. Helton, both of Freeborn & Peters, and Clausen Miller EC. (James T. Ferrini, Edward M. Kay, Paula M. Carstensen, and Paul Y Esposito, of counsel), for appellants.",
      "Timothy J. Cavanaugh, of Lloyd & Cavanaugh, and Michael W Rathsack, both of Chicago, for appellees Fidel Velarde and Francisca Velarde.",
      "Terrence J. Lavin, of Lavin & Nisivaco, EC., and David A. Novoselsky and Leslie J. Rosen, both of Novoselsky Law Offices, both of Chicago, for appellees Rafael Apulello and Northern Trust Company."
    ],
    "corrections": "",
    "head_matter": "FIDEL VELARDE et al., Plaintiffs-Appellees, v. ILLINOIS CENTRAL RAILROAD COMPANY, d/b/a Canadian National/Illinois Central R.R. Company, et al., Defendants-Appellants.\nFirst District (1st Division)\nNo. 1\u201402\u20141859\nOpinion filed November 8, 2004.\nWeston W Marsh and To\u00f1ita M. Helton, both of Freeborn & Peters, and Clausen Miller EC. (James T. Ferrini, Edward M. Kay, Paula M. Carstensen, and Paul Y Esposito, of counsel), for appellants.\nTimothy J. Cavanaugh, of Lloyd & Cavanaugh, and Michael W Rathsack, both of Chicago, for appellees Fidel Velarde and Francisca Velarde.\nTerrence J. Lavin, of Lavin & Nisivaco, EC., and David A. Novoselsky and Leslie J. Rosen, both of Novoselsky Law Offices, both of Chicago, for appellees Rafael Apulello and Northern Trust Company."
  },
  "file_name": "0523-01",
  "first_page_order": 541,
  "last_page_order": 567
}