{ "id": 4259439, "name": "DANIEL J. FOLEY, Indiv., et al., Plaintiffs-Appellees, v. PEGGY FLETCHER et al., Defendants-Appellants (Ingalls Health Ventures, Defendant)", "name_abbreviation": "Foley v. Fletcher", "decision_date": "2005-09-19", "docket_number": "No. 1\u201404\u20140506", "first_page": "39", "last_page": "51", "citations": [ { "type": "official", "cite": "361 Ill. App. 3d 39" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "513 N.E.2d 1198", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "parenthetical": "where the plaintiffs have not established evidence sufficient to support damages, we will vacate the circuit court's award of damages" } ], "opinion_index": 0 }, { "cite": "160 Ill. App. 3d 699", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3649651 ], "year": 1987, "pin_cites": [ { "page": "706", "parenthetical": "where the plaintiffs have not established evidence sufficient to support damages, we will vacate the circuit court's award of damages" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0699-01" ] }, { "cite": "774 N.E.2d 865", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "evidence is speculative unless \"the increased risk of future injury is proven within a reasonable degree of certainty and is proximately caused by the defendant's negligence\"" } ], "opinion_index": 0 }, { "cite": "332 Ill. App. 3d 1115", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1034176 ], "year": 2002, "pin_cites": [ { "page": "1121", "parenthetical": "evidence is speculative unless \"the increased risk of future injury is proven within a reasonable degree of certainty and is proximately caused by the defendant's negligence\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/332/1115-01" ] }, { "cite": "645 N.E.2d 319", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "269 Ill. App. 3d 37", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 365864 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "49" }, { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/269/0037-01" ] }, { "cite": "556 N.E.2d 662", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "198 Ill. App. 3d 891", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2476516 ], "year": 1990, "pin_cites": [ { "page": "900" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/198/0891-01" ] }, { "cite": "379 N.E.2d 306", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "62 Ill. App. 3d 299", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5619827 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "310" }, { "page": "310-11" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/0299-01" ] }, { "cite": "412 N.E.2d 447", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "pin_cites": [ { "parenthetical": "it is not automatically presumed that the jury was misled by the judge's erroneous instruction" } ], "opinion_index": 0 }, { "cite": "82 Ill. 2d 415", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5475820 ], "year": 1980, "pin_cites": [ { "page": "432", "parenthetical": "it is not automatically presumed that the jury was misled by the judge's erroneous instruction" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0415-01" ] }, { "cite": "515 N.E.2d 68", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "118 Ill. 2d 321", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3188627 ], "year": 1987, "pin_cites": [ { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/118/0321-01" ] }, { "cite": "771 N.E.2d 357", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "199 Ill. 2d 483", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58949 ], "weight": 4, "year": 2002, "pin_cites": [ { "page": "494" }, { "page": "492" }, { "page": "504" }, { "page": "506" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0483-01" ] }, { "cite": "714 N.E.2d 116", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "306 Ill. App. 3d 525", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1336044 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "536-37" }, { "page": "536-37" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/306/0525-01" ] }, { "cite": "724 N.E.2d 115", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "311 Ill. App. 3d 7", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 415306 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "23" }, { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/311/0007-01" ] }, { "cite": "805 N.E.2d 222", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "346 Ill. App. 3d 367", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3833806 ], "weight": 4, "year": 2003, "pin_cites": [ { "page": "373" }, { "page": "374" }, { "page": "382" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/346/0367-01" ] }, { "cite": "755 N.E.2d 1021", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "324 Ill. App. 3d 568", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 256271 ], "year": 2001, "pin_cites": [ { "page": "576" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/324/0568-01" ] }, { "cite": "757 N.E.2d 533", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "325 Ill. App. 3d 1005", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 570669 ], "year": 2001, "pin_cites": [ { "page": "1039" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/325/1005-01" ] }, { "cite": "801 N.E.2d 90", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "344 Ill. App. 3d 1026", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3777050 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "1032" }, { "page": "1031" }, { "page": "1032" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/344/1026-01" ] }, { "cite": "797 N.E.2d 687", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "207 Ill. 2d 167", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 974994 ], "year": 2003, "pin_cites": [ { "page": "177" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/207/0167-01" ] }, { "cite": "787 N.E.2d 796", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "204 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 609707 ], "year": 2003, "pin_cites": [ { "page": "33" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/204/0001-01" ] }, { "cite": "806 N.E.2d 645", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "209 Ill. 2d 100", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5462131 ], "weight": 5, "year": 2004, "pin_cites": [ { "page": "109" }, { "page": "109" }, { "page": "109" }, { "page": "106" }, { "page": "110-11" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0100-01" ] }, { "cite": "653 N.E.2d 771", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "a person is presumed competent to testify unless the party opposing her testimony proves her incompetent" } ], "opinion_index": 0 }, { "cite": "274 Ill. App. 3d 253", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 291610 ], "year": 1995, "pin_cites": [ { "page": "257", "parenthetical": "a person is presumed competent to testify unless the party opposing her testimony proves her incompetent" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/274/0253-01" ] } ], "analysis": { "cardinality": 1121, "char_count": 29153, "ocr_confidence": 0.794, "pagerank": { "raw": 1.3699468809853979e-07, "percentile": 0.638076389781798 }, "sha256": "1e894ad54f30e16a047b9c9fe984001268b38f84a5eedc2f222769aad3162457", "simhash": "1:93ed82ea3e4e9de0", "word_count": 4801 }, "last_updated": "2023-07-14T19:43:20.596028+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DANIEL J. FOLEY, Indiv., et al., Plaintiffs-Appellees, v. PEGGY FLETCHER et al., Defendants-Appellants (Ingalls Health Ventures, Defendant)." ], "opinions": [ { "text": "PRESIDING JUSTICE CAHILL\ndelivered the opinion of the court: This is an appeal from a jury\u2019s general verdict in a medical malpractice action in favor of plaintiffs, Daniel and Kathryn Foley (Mr. and Mrs. Foley) and their seven-year-old daughter Hannah, and against defendants, Peggy Fletcher, M.D. (Dr. Fletcher), and Primary Healthcare Associates, S.C. The jury\u2019s verdict in favor of defendant In-galls Health Ventures is not at issue.\n\u25a0 Defendants allege that the trial court erred in: (1) allowing plaintiffs to present undisclosed expert testimony in violation of Supreme Court Rule 213 (210 Ill. 2d R. 213); (2) failing to inform the jury that Dr. Fletcher had multiple sclerosis (MS) and related cognitive deficits; (3) barring a videotape from being shown during voir dire, depicting a \u201cday-in-the-life\u201d of Hannah, who has cerebral palsy; and (4) enabling the jury to reach a $1 million verdict for an \u201cincreased risk of future injury.\u201d We affirm the general verdict but vacate the award of $1 million for Hannah\u2019s increased risk of future injury.\nHannah was born on March 17, 1998. Plaintiffs filed their complaint in 1999, alleging defendants were negligent in attempting a vaginal birth after caesarian section (VBAC). Plaintiffs claimed defendants knew that Mrs. Foley had two earlier caesarian deliveries, had been advised against future VBAC attempts, and that a VBAC attempt would create substantially increased and avoidable risks to Mrs. Foley and her fetus. Plaintiffs alleged defendants were negligent in allowing induced labor to continue without significant progression despite Mrs. Foley\u2019s medical history. Plaintiffs alleged Dr. Fletcher, who was Mrs. Foley\u2019s physician, knew or should have known that extended labor was likely to injure Mrs. Foley or her fetus or both.\nAt a pretrial hearing, defense counsel asked the trial court to find Dr. Fletcher incompetent to testify due to physical and cognitive complications from MS. At an evidentiary hearing, Dr. Fletcher\u2019s physician said Dr. Fletcher was diagnosed with a progressive form of MS in February 2001. Other physicians and Dr. Fletcher\u2019s sister also testified to Dr. Fletcher\u2019s condition. The trial court declined to find Dr. Fletcher incompetent to testify, citing Clark v. Otis Elevator Co., 274 Ill. App. 3d 253, 257, 653 N.E.2d 771 (1995) (a person is presumed competent to testify unless the party opposing her testimony proves her incompetent). Defense counsel objected, but the parties later agreed that Dr. Fletcher\u2019s testimony would be read to the jury from a written evidence deposition. Defendants moved to show during voir dire a videotape of Hannah to ascertain whether prospective jurors had bias, prejudice or partiality in favor of a child with cerebral palsy. The trial court denied the motion.\nPlaintiffs filed pretrial disclosures on their lay and expert witnesses in compliance with Supreme Court Rule 213 (210 Ill. 2d R. 213). Plaintiffs named Jeffrey L. Wener, M.D., as a \u201ccontrolled expert witness.\u201d See 210 Ill. 2d R. 213(f)(3) (the party presenting the controlled expert witness must identify, among other things, the conclusions and opinions to which the expert will testify). The disclosures listed nine specific opinions of Dr. Wener, the second of which was:\n\u201c2. It was a deviation from accepted standards of care for Dr. *** Fletcher to fail to document in prenatal records warnings she allegedly gave of the risk of VBAC delivery to Kathryn Foley. The absence of warnings in the prenatal office records or pre-birth hospital records require[s] the conclusion that the warnings referred to in Dr. Fletcher\u2019s operative report, including alleged warnings regarding uterine rupture, were, in fact, not given prior to the uterine rupture experienced by Mrs. Foley, which is likewise a deviation from accepted standards of care.\u201d\nIn Dr. Wener\u2019s discovery deposition, he testified in part:\n\u201cQ. *** One of the opinions that you have offered in this case *** is that it is a deviation from accepted standards of care for Dr. Fletcher to fail to document in the prenatal record warnings that she gave Mrs. Foley about the risk of VBAC; is that correct?\nA. Yes.\nQ. You reviewed Dr. Fletcher\u2019s testimony that she did in fact discuss the potential risks and complications of a VBAC with Mrs. Foley during the prenatal period, correct?\nA. Yes.\nQ. If she in fact did so, her action in that regard would comply with the standard of care, correct?\nA. Yes.\nQ. *** Did you help draft the opinions that are articulated in [the Rule 213 disclosure]?\nA. I did not write them but I probably helped draft them, yes.\nQ. [The second sentence of No. 2 of the disclosure] says, [t]he absence of warnings in the prenatal office records or prebirth hospital records require[s] the conclusion that the warnings referred to in Dr. Fletcher\u2019s operative report[,] including alleged warnings regarding uterine rupture[,] were in fact not given prior to the uterine rupture experienced by Mrs. Foley which is likewise[,l you believe[,] a deviation from the standard of care.\nWhat causes you to reach the conclusion that the lack of documentation means it didn\u2019t happen?\nA. *** [W]e are as physicians taught to document what we tell our patients and certainly in evaluating a record for quality purposes or for evaluating a record to determine a breach of the standard of care, you have to rely on what\u2019s written in the record.\nQ. Okay. Well, Dr. Fletcher does have written in her operative report that her informed consent discussion with Mrs. Foley did take place during the prenatal period, correct?\nA. Right.\u201d\nAt trial, plaintiffs called Dr. Wener, who testified, in relevant part:\n\u201c[MR. MOTHERWAY (Plaintiffs\u2019 attorney)]: And would you explain to the Jury what [informed consent of the patient] means?\n[DR. WENER]: Basically, it\u2019s the obligation of the physician to sit down face-to-face with his or her patient and explain to them what the risks are in what they\u2019re undertaking, whether it\u2019s a vaginal delivery, whether it\u2019s a surgical procedure. If there are risks, they need to be explained to the patient. The patient needs to know why she\u2019s at risk, what in her history or examination puts her at risk, and if the situation changes with time, any additional risks need to be explained to the patient.\nMS. CLAUSING [(Defendants\u2019 attorney)]: Objection, your Honor. Supreme Court Rule 213. Motion to strike.\nTHE COURT: We\u2019ll have a sidebar.\n(Whereupon a sidebar discussion was had out of the presence and hearing of the Jury as follows:)\nMS. CLAUSING: Why the patient is at risk, what puts her at risk, and if the situation changes over time, she should be advised; none of this was disclosed. In the 213s\u2014\nTHE COURT: Well, it was disclosed. How can this witness give an opinion under 213 and in his discovery [deposition] and not talk vis-a-vis informed consent and not talk about what he just said?\nTHE COURT: What did the witness say in his discovery deposition vis-a-vis informed consent?\nMR. MOTHERWAY: Among other things, that this witness would say Dr. Fletcher was required to give specific risk warnings and failed to do so.\n\u00edjt\u00ed-\u00cdS-C\nThat\u2019s what he\u2019s saying now.\nMS. CLAUSING: *** We discussed this at the deposition *** and Dr. Wener had reviewed Dr. Fletcher\u2019s deposition testimony. In her deposition testimony, she made it clear that she had discussed the risk of rupture, the damage that it could potentially cause to the baby neurologically and death, the problems that [it] could cause to the mother in terms of death, bleeding as a possibility, and I think infection \u2014 \u25a0.\nTHE COURT: You may bring this out by way of Cross-Examination.\nMS. CLAUSING: But now he is adding a new and heightened standard of care with regard to these kinds of items never before disclosed by this gentleman as opinions that these items needed to be included in it.\nMR. MOTHERWAY: His Rule 213 answer is what I read. *** Dr. Fletcher was required to give specific risk warnings and failed to do so.\u201d\nThe trial judge ruled that Dr. Wener\u2019s testimony about Dr. Fletcher\u2019s obligation to explain specific risks to Mrs. Foley as the situation changed over time was a necessary corollary to Dr. Werner\u2019s earlier statements in his deposition and disclosures. The trial court denied defense counsel\u2019s motion to strike.\nDr. Wener also testified that meconium, a sign of fetal distress, was present during the attempted delivery and that the principles of informed consent would require a physician to convey that information to the patient. He said Mrs. Foley\u2019s 42 weeks\u2019 gestation was a contraindication for a VBAC, a fact which should have been conveyed to her under informed-consent standards. He also testified that when Dr. Fletcher noticed blood in Mrs. Foley\u2019s urine, a factor that would raise a concern about uterine rupture, Dr. Fletcher was obligated under informed-consent standards to inform Mrs. Foley.\nPlaintiffs also presented the testimony of Dr. Lisa Thornton and Dr. David Townsend, over defendants\u2019 objections, to show that Hannah had an increased future risk of scoliosis and hip dislocation. Dr. Townsend said he could not quantify the risk as slight, moderate or significant or predict whether the risk would materialize in Hannah\u2019s case.\nAt the beginning of the trial and again at the conclusion of the evidence, the trial court admonished the jury to give the read testimony of Dr. Fletcher and the videotaped testimony of Dr. Townsend \u201cthe same consideration you would give it had the witnesses personally appeared in court.\u201d The trial court did not mention that Dr. Fletcher had MS or cognitive deficits.\nThe trial court instructed the jury, over defendants\u2019 objection, on damages for risk of future injury:\n\u201cThe plaintiff Hannah Foley claims that she has suffered an increased risk of scoliosis and hip dislocation as a result of the defendant\u2019s negligence. Hannah Foley is entitled to recover damages for physical harm resulting from a failure to exercise reasonable care. If the failure to exercise reasonable care increases the risk that such harm will occur in the future, Hannah Foley is entitled to compensation for that increased risk. In order to award this element of damage, you must find a breach of duty that was a substantial factor in causing a present injury which has resulted in an increased risk of future harm. The increased risk must have a basis in the evidence. Your verdict must not be based on speculation. The plaintiff is entitled to compensation to the extent that the future harm is likely to occur as measured by multiplying the total compensation to which the plaintiff would be entitled if the harm in question were certain to occur by the proven probability that the harm in question will in fact occur.\u201d\nThe trial court also instructed the jury, over defendants\u2019 objection, on four possible theories of negligence:\n\u201cThe plaintiffs *** claim that they were injured and sustained damage, and that defendants were negligent in one or more of the following respects:\na. Failed to properly manage Kathryn Foley\u2019s labor and delivery;\nb. Offered Kathryn Foley the option of a VBAC delivery;\nc. Failed to fully inform Kathryn Foley of the risks of a uterine rupture with a VBAC delivery; or\nd. Failed to inform Kathryn Foley, while she was in labor, of the potential warning signs of uterine rupture and/or fetal distress.\u201d\nDefense counsel objected to theory \u201cd,\u201d arguing that the instruction presented a new theory of liability based on Dr. Wener\u2019s undisclosed testimony that additional risks must be explained to a patient as the situation changes over time. The trial court overruled the objection and instructed the jury on theory \u201cd.\u201d\nNeither side requested a special interrogatory from the general verdict under section 2 \u2014 1108 of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 1108 (West 2002)) (\u201c[t]he jury may be required by the court, and must be required on request of any party, to find specially upon any material question or questions of fact submitted to the jury in writing\u201d).\nThe jury returned a $16 million verdict in favor of the Foleys: $2.5 million for disfigurement, $5 million for loss of normal life, $2.5 million for pain and suffering, $5 million for present cash value of earnings, medical care and caretaking, and $1 million for increased risk of future injury.\nDefendants appeal. We have taken with the case defendants\u2019 motion to cite additional authority. Defendants submitted a verdict form recently drafted by the Supreme Court Committee on Jury Instructions in Civil Cases. The form includes formulae for calculating increased-risk-of-future-injury awards. Because we vacate the award of damages for increased risk of future injury, we find the authority without relevance to our present review and deny defendants\u2019 motion.\nDefendants\u2019 first claim of error is that the trial court improperly admitted testimony of Dr. Wener that had not been disclosed under Rule 213. Defendants argue that the trial court erred in admitting Dr. Wener\u2019s statements as \u201cnecessary corollaries\u201d of previously disclosed opinions. They contend that his Rule 213 disclosures referred to the standard of care for informed consent on the general risks of VBAC that all patients face, but his statements at trial exceeded the disclosures when he said, \u201cif the situation changes with time, any additional risks need to be explained to the patient.\u201d Defendants also object to the admission of Dr. Wener\u2019s testimony that Dr. Fletcher should have disclosed to Mrs. Foley that her 42-week gestation was a contraindication for VBAC, and that the presence of blood in the urine and meconium were reasons for concern. Defendants argue those newly disclosed opinions were used to present the principle of informed consent as a \u201ccentral theme\u201d of plaintiffs\u2019 case and violated Rule 213, which requires strict compliance under Sullivan v. Edward Hospital, 209 Ill. 2d 100, 109, 806 N.E.2d 645 (2004). Defendants contend that the trial court should not have permitted plaintiffs to \u201cignore the plain language of Rule 213 and supplement Dr. Wener\u2019s opinions in the midst of the trial with opinions positing an on-going duty to repeatedly update the consent during the course of treatment.\u201d\nThe decision to admit evidence rests solely within the discretion of the trial court and will not be disturbed absent an abuse of discretion. Snelson v. Kamm, 204 Ill. 2d 1, 33, 787 N.E.2d 796 (2003). A trial court abuses its discretion when \u201cno reasonable person would take the view adopted by the trial court.\u201d Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 177, 797 N.E.2d 687 (2003).\nThe purpose of discovery rules, governing the \u201ctimely disclosure of expert witnesses, their opinions, and the bases for those opinions[,] is to avoid surprise and to discourage strategic gamesmanship.\u201d Thomas v. Johnson Controls, Inc., 344 Ill. App. 3d 1026, 1032, 801 N.E.2d 90 (2003). Supreme Court Rule 213 disclosures are mandatory and strict compliance is required. Sullivan, 209 Ill. 2d at 109. Rule 213(f)(3) requires parties to furnish, among other things, the subject matter, conclusions and opinions of controlled expert witnesses who will testify at trial. 210 Ill. 2d R. 213(f)(3). Rule 213(g) limits expert opinions at trial to \u201c[t]he information disclosed in answer to a Rule 213(f) interrogatory, or at deposition.\u201d 210 Ill. 2d R. 213(g). A witness may elaborate on a disclosed opinion as long as the testimony states logical corollaries to the opinion, rather than new reasons for it. Barton v. Chicago & North Western Transportation Co., 325 Ill. App. 3d 1005, 1039, 757 N.E.2d 533 (2001). The testimony at trial must be encompassed by the original opinion. Prairie v. Snow Valley Health Resources, Inc., 324 Ill. App. 3d 568, 576, 755 N.E.2d 1021 (2001). A party\u2019s Rule 213 disclosures must \u201cdrop down to specifics.\u201d Sullivan, 209 Ill. 2d at 109. While it is improper for a trial court to allow previously undisclosed opinions that advance a new negligence theory (Clayton v. County of Cook, 346 Ill. App. 3d 367, 805 N.E.2d 222 (2003)), testimony is not a new opinion merely because it refers to a more precise time than appeared in the expert\u2019s Rule 213 disclosure (Seef v. Ingalls Memorial Hospital, 311 Ill. App. 3d 7, 23, 724 N.E.2d 115 (1999)).\nHere, the trial court did not abuse its discretion in admitting Dr. Wener\u2019s testimony that a standard of care to give specific risk warnings was owed to Mrs. Foley as the \u201csituation\u201d in her attempted VBAC was changing \u201cwith time.\u201d Plaintiffs in their Rule 213 answers disclosed Dr. Wener\u2019s opinion that \u201calleged warnings regarding uterine rupture, were, in fact, not given prior to the uterine rupture experienced by Mrs. Foley.\u201d In both his Rule 213 answers and deposition, Dr. Wener said Dr. Fletcher had not noted in \u201cpre-birth hospital records\u201d or \u201coperative records\u201d that she gave warnings. These disclosures show that Dr. Wener could have been expected to testify to the need for warnings during the course of the attempted VBAC. There is nothing in Dr. Wener\u2019s discovery deposition or Rule 213 disclosures to suggest that his opinion about warnings applied only before and not during Mrs. Foley\u2019s attempt to deliver vaginally.\nDefendants rely on Sullivan, Clayton and Thomas to argue that strict compliance with Rule 213 is required and, because Dr. Wener\u2019s opinions were not in strict compliance, they should have been barred. In Sullivan, a medical malpractice case, the plaintiffs expert testified to his undisclosed opinion that a nurse failed to communicate the patient\u2019s condition to the primary care physician. The trial court struck the expert\u2019s testimony as a discovery sanction under Rule 213. Sullivan, 209 Ill. 2d at 106. The supreme court determined the trial court did not abuse its discretion in striking the testimony because Rule 213 requires strict compliance. Sullivan, 209 Ill. 2d at 110-11.\nIn Clayton, the plaintiffs medical malpractice case depended on the explanation of why the defendant\u2019s doctors at Cook County Hospital improperly intubated the plaintiffs daughter, who later died. In testimony at trial, the plaintiffs expert said that an endotracheal tube was inserted \u201cwithout supervision, in the wrong place, by people who were inexperienced.\u201d Clayton, 346 Ill. App. 3d at 373. The expert\u2019s opinion about inadequate supervision had not been disclosed under Rule 213(g). Clayton, 346 Ill. App. 3d at 374. The expert conceded that his opinion about lack of supervision was both a factor in the case and a new opinion but claimed inadequate supervision did not play a large role in the patient\u2019s death. The appellate court found that the trial court erred in admitting the undisclosed opinions and the error warranted reversal. Clayton, 346 Ill. App. 3d at 382.\nIn Thomas, a slip-and-fall case, the defendant elicited expert testimony that X rays of the plaintiffs injured knee showed a preexisting degenerative condition. The X rays initially were barred by the order of the motion judge and were not disclosed under Rule 213. Thomas, 344 Ill. App. 3d at 1031. Twelve days before the trial, the X rays were disclosed and the judge allowed the defendant\u2019s expert to testify about them. This court reversed and remanded, finding that the trial court erred in admitting the undisclosed X-ray evidence, which was relevant to causation and damages. Thomas, 344 Ill. App. 3d at 1032.\nIn Sullivan and Clayton, a new theory of negligence was added through undisclosed testimony. In Clayton, the new theory was negligent supervision; in Sullivan, the new theory was a nurse\u2019s negligent failure to communicate. In Thomas, the defendants\u2019 undisclosed X-ray evidence presented new reasons for the expert\u2019s opinion. Here, Dr. Wener\u2019s testimony that the standard of care required warnings as conditions changed over time did not advance a new theory of negligence or new reasons for his opinion. Plaintiffs disclosed that Dr. Wener would testify to the standard of care for prenatal warnings. The disclosures did not specify that he would limit his opinions to particular phases of the prenatal cycle. His testimony that warnings were warranted in the period before the uterine rupture comports with his disclosures and did not advance a new theory of liability. Testimony is not a new opinion merely because it offers a more precise time. Seef, 311 Ill. App. 3d at 23.\nA case that helps distinguish proper from improper references to time frames is Firstar Bank of Illinois v. Peirce, 306 Ill. App. 3d 525, 536-37, 714 N.E.2d 116 (1999). There, we found that the trial court erred in admitting trial testimony about the standard of care required after a medication was administered when the disclosures addressed only the standard of care required before the medication was administered. Firstar, 306 Ill. App. 3d at 536-37. That was not the situation here. Dr. Wener\u2019s disclosures about prenatal warnings referred to the prenatal period in general and did not distinguish between warnings to be given before and after the onset of labor. The prenatal period lasted until Hannah was born. The trial court here did not err in admitting Dr. Wener\u2019s testimony.\nEven if we decided that Dr. Wener\u2019s testimony was improperly admitted, we cannot say that the error would have warranted reversal. Plaintiffs claim there was enough evidence to support the jury\u2019s verdict under theories \u201ca,\u201d \u201cb\u201d and \u201cc,\u201d so even if theory \u201cd\u201d was tainted by a Rule 213 violation, reversal would not be necessary. Plaintiffs contend that one defective theory of liability will not disturb a general verdict where there was sufficient evidence to sustain the other theories, citing Dillon v. Evanston Hospital, 199 Ill. 2d 483, 494, 771 N.E.2d 357 (2002); 735 ILCS 5/2 \u20141201(d) (West 2002). Section 2 \u2014 1201(d) of the Code provides:\n\u201c(d) If several grounds of recovery are pleaded in support of the same claim, whether in the same or different counts, an entire verdict rendered for that claim shall not be set aside or reversed for the reason that any ground is defective, if one or more of the grounds is sufficient to sustain the verdict; nor shall the verdict be set aside or reversed for the reason that the evidence in support of any ground is insufficient to sustain a recovery thereon, unless before the case was submitted to the jury a motion was made to withdraw that ground from the jury on account of insufficient evidence and it appears that the denial of the motion was prejudicial.\u201d 735 ILCS 5/2 \u2014 1201(d) (West 2002).\nDefendants contend section 2 \u2014 1201(d) notwithstanding, the entire verdict must be set aside here because the facts conform to an exception to the general rule that one defective ground is not enough to defeat a verdict. Defendants focus on the clause, \u201cunless before the case was submitted to the jury a motion was made to withdraw that ground from the jury on account of insufficient evidence and it appears that the denial of the motion was prejudicial.\u201d 735 ILCS 5/2\u2014 1201(d) (West 2002). Defendants allege that the criteria in the exception were met because: (1) defendants moved to withdraw theory \u201cd\u201d before the case was submitted to the jury; (2) their basis for the motion was Dr. Wener\u2019s improperly admitted and therefore insufficient evidence; (3) the trial court then denied their motion; and (4) the denial resulted in prejudice to defendants.\nBut defendants are unable to show prejudice because they cannot show that the jury based its verdict on the instruction at issue. Neither side requested special interrogatories under section 2\u20141108 of the Code. 735 ILCS 5/2\u20141108 (West 2002). A defendant cannot expect recourse where a plaintiff presents more than one theory of her case, the defendant does not request special interrogatories and the jury returns a general verdict. Dillon, 199 Ill. 2d at 492; Witherell v. Weimer, 118 Ill. 2d 321, 329, 515 N.E.2d 68 (1987). Nor can it be presumed that reversal is warranted because the jury was misled by the court\u2019s instruction unless there is some indication that the jury was improperly influenced. See Lynch v. Board of Education of Collinsville Community Unit District No. 10, 82 Ill. 2d 415, 432, 412 N.E.2d 447 (1980) (it is not automatically presumed that the jury was misled by the judge\u2019s erroneous instruction). Without the jury\u2019s answer to a special interrogatory on theory \u201cd,\u201d we could not conclude that defendants were prejudiced even if Dr. Wener\u2019s testimony was admitted in error.\nDefendants next argue that the trial court erred in failing to inform the jury of Dr. Fletcher\u2019s cognitive deficits and the nature of her illness, citing Eckley v. St. Therese Hospital, 62 Ill. App. 3d 299, 310, 379 N.E.2d 306 (1978). There, this court recommended that when a witness was unable to appear because of bereavement, the jurors should be told the witness was \u201ctemporarily absent from the courtroom for personal reasons.\u201d Eckley, 62 Ill. App. 3d at 310-11.\nHere, the trial court\u2019s reference to Dr. Fletcher\u2019s absence was even more neutral than the explanation endorsed in Eckley. The trial court here twice called the jury\u2019s attention to the fact that Dr. Fletcher\u2019s testimony would be read and admonished it to give it the same consideration as if she had appeared. We do not believe it would have been less prejudicial to have informed the jury of the nature of Dr. Fletcher\u2019s illness and deficits or attributed her absence to \u201cpersonal reasons.\u201d\nDefendants next argue that the trial court abused its discretion in denying their request to show a video during voir dire, depicting a day in the life of Hannah. They rely on Roberts v. Sisters of Saint Francis Health Services, Inc., 198 Ill. App. 3d 891, 900, 556 N.E.2d 662 (1990), where this court found it was proper for a trial court to allow prospective jurors to see a disabled plaintiff during voir dire because it allowed the parties to test for prejudice and dismiss biased persons for cause.\nA trial court is vested with broad discretion in allowing, or refusing to allow, a day-in-the-life film to be shown to a jury. Golden v. Kishwaukee Community Health Services Center, Inc., 269 Ill. App. 3d 37, 49, 645 N.E.2d 319 (1994). It is not error for a trial court to refuse to show such a film if the defendants are not otherwise prevented from effectively testing the potential jurors\u2019 views on the plaintiff s disabilities for bias or prejudice. Golden, 269 Ill. App. 3d at 49. Defendants here do not claim, and the record does not show, that they were unable to question potential jurors thoroughly on the question of Hannah\u2019s disability. We conclude that the trial court did not abuse its discretion in barring the film.\nFinally, we address the jury\u2019s $1 million award for Hannah\u2019s increased risk of future injury. We agree with defendants\u2019 argument on appeal that because the plaintiffs\u2019 experts could not quantify the risks of future injury due to scoliosis or hip dislocation, the jury award of $1 million cannot be upheld under Dillon. There, the supreme court ruled that damages for increased risk of future injury are compensible, but \u201c[t]he burden is on the plaintiff to prove that the defendant\u2019s negligence increased the plaintiffs risk of future injuries. A plaintiff can obtain compensation for a future injury that is not reasonably certain to occur, but the compensation would reflect the low probability of occurrence.\u201d Dillon, 199 Ill. 2d at 504. But \u201cthe increased risk must be based on evidence!,] not speculation, and, more importantly, the size of the award must reflect the probability of occurrence.\u201d Dillon, 199 Ill. 2d at 506. See also Kamp v. Preis, 332 Ill. App. 3d 1115, 1121, 774 N.E.2d 865 (2002) (evidence is speculative unless \u201cthe increased risk of future injury is proven within a reasonable degree of certainty and is proximately caused by the defendant\u2019s negligence\u201d).\nHere, the testimony of Drs. Thornton and Townsend did not specify the level of increased risk Hannah faces or the probability of injuries. The degree of risk was not proven within a reasonable degree of certainty. The jury\u2019s award of $1 million could have been based only on speculation because no tangible evidence was before it. For those reasons, we vacate this portion of the award. See Mueller v. Soffer, 160 Ill. App. 3d 699, 706, 513 N.E.2d 1198 (1987) (where the plaintiffs have not established evidence sufficient to support damages, we will vacate the circuit court\u2019s award of damages).\nWe affirm the general verdict and vacate the award of $1 million for increased risk of future injury. Defendants\u2019 motion to cite additional authority is denied.\nAffirmed in part and vacated in part.\nGORDON and McBRIDE, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE CAHILL" } ], "attorneys": [ "Anderson, Bennett & Partners, L.L.P, of Chicago (Marilee Clausing, Anne Scrivner Kuban, and Diane I. Jennings, of counsel), for appellants.", "Nicholas J. Motherway and John M. Saletta, both of Motherway & Napleton, of Chicago, and Lynn D. Dowd, of Naperville, for appellees." ], "corrections": "", "head_matter": "DANIEL J. FOLEY, Indiv., et al., Plaintiffs-Appellees, v. PEGGY FLETCHER et al., Defendants-Appellants (Ingalls Health Ventures, Defendant).\nFirst District (1st Division)\nNo. 1\u201404\u20140506\nOpinion filed September 19, 2005.\nAnderson, Bennett & Partners, L.L.P, of Chicago (Marilee Clausing, Anne Scrivner Kuban, and Diane I. Jennings, of counsel), for appellants.\nNicholas J. Motherway and John M. Saletta, both of Motherway & Napleton, of Chicago, and Lynn D. Dowd, of Naperville, for appellees." }, "file_name": "0039-01", "first_page_order": 57, "last_page_order": 69 }