{ "id": 7328714, "name": "CONNIE MIKOLAJCZYK, Indiv. and as Special Adm'r of the Estate of James Mikolajczyk, Deceased, Plaintiff-Appellee, v. FORD MOTOR COMPANY et al., Defendants-Appellants (William D. Timberlake, Defendant)", "name_abbreviation": "Mikolajczyk v. Ford Motor Co.", "decision_date": "2007-06-13", "docket_number": "No. 1\u201405\u20143133", "first_page": "646", "last_page": "679", "citations": [ { "type": "official", "cite": "374 Ill. App. 3d 646" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "165 Ill. 2d 150", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483571 ], "year": 1995, "pin_cites": [ { "parenthetical": "upholding a $6.2 million wrongful death award" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/165/0150-01" ] }, { "cite": "282 Ill. 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App. 3d", "case_ids": [ 5456032 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "660-61" }, { "page": "671", "parenthetical": "summary judgment on the plaintiffs strict liability claim was improper when genuine issue of material fact existed under the risk-utility test or under the consumer expectations test" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/352/0648-01" ] }, { "cite": "223 Ill. 2d 638", "category": "reporters:state", "reporter": "Ill. 2d", "year": 2007, "opinion_index": 0 }, { "cite": "224 Ill. 2d 247", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3606843 ], "weight": 4, "year": 2007, "pin_cites": [ { "page": "263" }, { "page": "255" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/224/0247-01" ] }, { "cite": "369 Ill. App. 3d 78", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4267661 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/ill-app-3d/369/0078-01" ] }, { "cite": "34 Ill. 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App. 3d", "case_ids": [ 3219170 ], "year": 2004, "pin_cites": [ { "page": "543" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/354/0523-01" ] } ], "analysis": { "cardinality": 2269, "char_count": 85540, "ocr_confidence": 0.804, "pagerank": { "raw": 9.221668918916659e-08, "percentile": 0.5102208661586062 }, "sha256": "6e5a881d13da84dce72184e95de486c689c1a59535fdd96d72b669cce710790c", "simhash": "1:deaf92bf170b35c9", "word_count": 13833 }, "last_updated": "2023-07-14T18:10:59.295026+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CONNIE MIKOLAJCZYK, Indiv. and as Special Adm\u2019r of the Estate of James Mikolajczyk, Deceased, Plaintiff-Appellee, v. FORD MOTOR COMPANY et al., Defendants-Appellants (William D. Timberlake, Defendant)." ], "opinions": [ { "text": "JUSTICE GREIMAN\ndelivered the opinion of the court:\nPlaintiff Connie Mikolajczyk, individually and as special administrator of the estate of her deceased husband James Mikolajczyk (hereinafter referred to as James), brought suit alleging strict products liability for a defective design against defendants Ford Motor Company and Mazda Motor Corporation (hereinafter referred to as defendants) and negligence against defendant William D. Timberlake (hereinafter referred to as Timberlake). James died when his Ford Escort was hit from behind by Timberlake\u2019s car. Summary judgment was entered against Timberlake and the case proceeded to a jury trial on the strict products liability claim. The jury found Timberlake 60% responsible for causing James\u2019s death and defendants 40% responsible. The jury awarded plaintiff $2 million for loss of money, goods and services and $25 million for loss of society and sexual relations. On appeal, defendants contended: (1) that the trial court erred in instructing the jury on the law of strict liability for design defects; (2) that the trial court erred in declining to instruct the jury about damage apportionment, the effect of Timberlake\u2019s intoxication and the concept of sole proximate cause; (3) that the trial court erred in admitting emotional, prejudicial hearsay evidence about other accidents; (4) that the jury\u2019s verdict was arbitrary and excessive; (5) that the cumulative effect of the trial court\u2019s errors requires a new trial; and (6) that section 2 \u2014 1303 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 1303 (West 2004)) is unconstitutional. In Mikolajczyk v. Ford Motor Co., 369 Ill. App. 3d 78 (2006), we affirmed the judgment of the trial court in part and reversed in part, finding that the loss of society award of $25 million was excessive. Thereafter, the supreme court denied defendants\u2019 petition for leave to appeal, but pursuant to its supervisory authority, directed us to vacate our judgment and reconsider this case in light of its recent decision in Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247 (2007). Mikolajczyk v. Ford Motor Co., 223 Ill. 2d 638 (2007). After vacating our original opinion and reconsidering our judgment in light of Calles, we again affirm in part, reverse the judgment regarding the $25 million loss of society award and remand to the trial court so that it may set a remittitur of the loss of society award.\nThe trial in this case took place over a period of 21k weeks. Numerous lay and expert witnesses testified. The parties do not dispute the facts concerning the accident or the extent of James\u2019s injuries. Instead, as stated above, they dispute the propriety of the given instructions, the court\u2019s admission of certain evidence, the amount of the award and the constitutionality of a statutory provision. Therefore, we set out only those facts necessary for our discussion of the issues raised.\nAt 8 p.m. on February 4, 2000, James was stopped at a stoplight, sitting in the driver\u2019s seat of his 1996 Ford Escort. His daughter Elizabeth was seated behind him in the back driver\u2019s-side seat asleep. James and Elizabeth were both wearing their safety belts. Timber-lake, traveling at speeds upwards of 60 miles per hour, crashed into the right rear of the Escort, causing it to spin into the intersection and collide with a van. Timberlake was intoxicated at the time of the accident.\nUpon impact, James\u2019s seat flattened backwards, or \u201cramped\u201d backwards, and he was ejected toward the rear of the car. James\u2019s head struck the backseat of the car and Elizabeth\u2019s legs were injured by the flattened front seat. James suffered brain damage from the impact. Because his prognosis was hopeless, James\u2019s life support was terminated and he passed away on February 7, 2000.\nPlaintiff filed suit against defendants for strict products liability, alleging that James\u2019s car seat was defectively designed with inadequate strength making it unreasonably dangerous, and against Timberlake for negligence. Summary judgment was entered in plaintiff\u2019s favor against Timberlake and the case proceeded to trial on plaintiffs products liability claim, for a determination of whether the seat was defectively designed, whether the design proximately caused James\u2019s injuries, the relative responsibility of defendants and Timberlake and for an assessment of damages.\nAt trial, the following facts were adduced. The driver\u2019s seat of James\u2019s Escort was codesigned by defendants and was known as a CT20 seat. The CT20 seat was a \u201cyielding seat,\u201d meaning that when force was applied to it, it yielded in the direction of the force, in effect, absorbing some of the shock from an impact. The CT20 exceeded federal safety requirements. However, plaintiffs expert testified that compliance with the standard does not make a seat safe while defendants\u2019 expert testified that Ford does not look to the standard for advice concerning how to design a seat. In the alternative, what is known as a \u201crigid seat\u201d was also available. In a rear impact accident, a rigid seat transfers the energy of the collision in the opposite direction of the collision, so that, upon impact, the passenger is thrown forward. When James\u2019s yielding seat ramped backwards during his accident with Timberlake, it performed according to its design.\nPlaintiffs experts, including engineer L. Morrie Shaw, biomechan-ics expert Joseph Burton and seat design expert Kenneth Saczalski, testified that the yielding seat design proximately caused James\u2019s death and that the use of a rigid seat design was entirely feasible, would have protected James from his fatal injuries, would have better protected a backseat passenger and should have been utilized. Burton and Saczalski explained that the forces involved in James\u2019s accident were reasonably foreseeable by defendants, noting that automakers conduct crash tests under circumstances similar to James\u2019s accident. Saczalski testified that rigid seat technology was developed in the 1960s, rigid seats were built in the 1970s and became commercially available in the 1980s. Burton further explained that when a yielding seat ramps back, the use of a seatbelt offers the passenger no protection. The ramping of a yielding seat permits a passenger to slide up the seat and leaves the passenger vulnerable to striking structures in the rear of his car. Burton further testified that he had investigated accidents involving half of the speed involved in this accident in which the yielding seat had performed the same way James\u2019s had and had caused injury and death.\nSaczalski cited several examples of automobiles that were contemporaneous with the 1996 Escort that used rigid, rather than yielding, seat designs, including the 1996 Chrysler Sebring. Saczalski conducted a series of tests on the 1996 Escort, leaving the standard, yielding seat on the front driver\u2019s side and replacing the front passenger seat with a 1996 Sebring rigid seat and impacting the car from the rear at various speeds with various-sized dummies in the seats. From these tests, Saczalski concluded that rigid seats protect their occupants in high-speed, rear-impact accidents while yielding seats do not. More specifically, Saczalski found that the risk of severe to fatal head injury was 10 to 25 times greater with the yielding seat.\nPlaintiffs experts admitted that a serious injury does not result every time a seat yields in a high-speed, rear-impact accident. They conceded that, if a passenger is not perfectly aligned in his seat at the time of an impact, a rigid seat can cause serious neck injuries and that, in a low-speed collision, an out-of-alignment passenger is actually safer in a yielding seat than in a rigid seat. They further agreed that very few cars that were on the market in 1996 met their specifications for a nondefective design.\nPlaintiffs experts were permitted to testify, over defendants\u2019 objections, to three accidents that also occurred in Escorts and resulted in injuries and death to the passengers therein when the front seats of the Escorts ramped back on impact.\nDefendants\u2019 experts, including Ford design engineer Roger Burnett, accident reconstruction expert Gregory Smith, research engineer Andrew Levitt, biomechanics experts Catherine Corrigan and Pri-yaranjan Prasad and Mazda engineer Shuji Kumano, testified that very few cars that were on the market at the time of James\u2019s car were equipped with rigid seats. In designing the 1996 Escort seat, defendants considered all types of accidents, not just severe collisions as occurred to James. Defendants rejected the rigid seat design for safety reasons. The rigid design presents a serious risk of head and neck injuries even in a low-speed collision. On the other hand, a yielding seat presents little to no risk of neck injuries in a low-speed collision and a lower risk of neck injuries in all accidents. Moreover, a yielding seat better protects an out-of-position passenger from neck and spine injuries because it absorbs the impact of the accident and keeps the passenger\u2019s head and spine aligned and has a risk of causing severe injuries only in very high impact accidents, which are rare. Yielding seats also better protect backseat passengers who may be thrown into them during an accident. In fact, defendants\u2019 experts opined that Elizabeth would have been more severely injured had James\u2019s been a rigid seat. Defendants\u2019 experts testified that very few cars on the market at the time of James\u2019s Escort utilized rigid seat designs and that, because the Escort was a \u201chigh-volume vehicle,\u201d unlike the cars cited by plaintiffs experts as utilizing rigid seats, it was not possible for defendants to use a strong seat, like that used in a Se-bring, in an Escort.\nThe surviving members of the Mikolajczyk family and friends of the family also testified. At the time of his death, James was 46 years old and was expected to live for 31.9 additional years. In 1999, James had earned $63,450 as a physician\u2019s assistant, a job he had held for 22 years. At the time of her husband\u2019s death and of trial, plaintiff worked as a secretary at a Catholic grade school. Plaintiff and James were married in 1980. In addition to Elizabeth, who was born in 1985, they had a son, Adam, who was born in 1980. Adam was 14 at the time of his father\u2019s death while Elizabeth was 10. Plaintiff and James\u2019s children testified that they frequently saw them holding hands, dancing in the kitchen and singing to each other. The Mikolajczyk family cooked, cleaned, shopped and watched movies together.\nAdam and his father were close. James coached and played baseball and basketball with Adam and inspired Adam\u2019s love of science. After James\u2019s death, Adam was very angry for months, breaking doors, punching his fist through the wall and crying daily. Adam was placed in counseling. Adam went on to graduate as the valedictorian of his high school class and to earn a scholarship from the University of Notre Dame.\nElizabeth and her father were \u201cbest friends.\u201d James sang Elizabeth to sleep every night. Since her father\u2019s death, Elizabeth is constantly afraid that something will happen to the surviving members of her family, often sleeping with her mother. Elizabeth\u2019s room is filled with pictures of her father.\nIn closing, plaintiffs attorney asked that the juiy award plaintiff $2 million for loss of support and $25 million for loss of society. Defendants\u2019 attorney did not suggest a damages amount. Timberlake\u2019s attorney asked that the responsibility for the accident be divided 50% to his client and 50% to defendants.\nThe jury returned a verdict for $2 million in loss of support and $25 million in loss of society. By a special interrogatory, the jury found that the driver\u2019s seat of James\u2019s Escort was unreasonably dangerous and proximately caused James\u2019s death. Defendants\u2019 posttrial motions were denied and they appealed.\nOn appeal, defendants first take issue with the trial court\u2019s instructions regarding the law of design defect strict liability. The trial court read the jury the following modified Illinois Pattern Jury Instructions, Civil, Nos. 400.01, 400.02 and 400.06 (2005) (hereinafter IPI Civil (2005) Nos. 400.01, 400.02 and 400.06):\n\u201cThe plaintiff claims that James Mikolajczyk died as a result of the use of his car and that there existed in the car at the time it left the control of Mazda Motor Corporation and Ford Motor Company a condition which made the car unreasonably dangerous in the following respects: The driver\u2019s seat was designed with inadequate strength.\nThe plaintiff further claims that the foregoing was a proximate cause of James Mikolajczyk\u2019s death.\nMazda Motor Corporation and Ford Motor Company deny that the claimed condition of the car made the car unreasonably dangerous and deny that any claimed condition of the car was a proximate cause of James Mikolajczyk\u2019s death.\nMazda Motor Corporation and Ford Motor Company deny that the plaintiff sustained damages to the extent claimed.\nThe plaintiff has the burden of proving each of the following propositions as to the condition claimed by the plaintiff.\nFirst: That the condition claimed by the plaintiff as stated to you in these instructions existed in the car.\nSecond: That the condition made the car unreasonably dangerous.\nThird: That the condition existed at the time the car left the control of the defendant.\nFourth: That the plaintiff decedent was killed.\nFifth: That the condition of the car was a proximate cause of James Mikolajczyk\u2019s death.\nWhen I use the expression, \u2018unreasonably dangerous,\u2019 in these instructions, I mean unsafe when put to a use that is reasonably foreseeable, considering the nature and function of the car.\u201d\nThe trial court refused to tender defendants\u2019 modified IPI Civil (2005) No. 400.01 and No. 400.02, which provided, in relevant part:\n\u201cFord/Mazda further assert that on balance!,] the benefits of the 1996 Escort\u2019s front seat design outweigh the risks of danger inherent in the design.\u201d\nAnd:\n\u201cIf you find from your consideration of all the evidence that [sic] each [of the propositions enumerated above], then the burden shifts to Ford/Mazda to prove that on balance the benefits of the 1996 Escort\u2019s front seat design outweigh the risks of danger inherent in the design.\u201d\nThe trial court refused to tender defendants\u2019 requested non-IPI instructions:\n\u201cA product is defective in its design when the foreseeable risks of harm posed by the product outweigh the benefits of the design and the risks can be reduced or avoided by the adoption of an alternative feasible design. Feasible alternative designs must be available at the time that the product left the control of the defendant.\nFeasibility includes not only elements of economy, effectiveness and practicality, but also technological possibilities under the state of the manufacturing art at the time the product was produced.\u201d\nThe court also refused to tender defendants\u2019 requested non-IPI instructions:\n\u201cWhen evaluating the reasonableness of a design alternative, the overall safety of the product must be considered. It is not sufficient that the alternative design would have reduced or prevented the harm suffered by the plaintiff if it would also have introduced into the product other dangers of equal or greater magnitude. A product\u2019s design may be reasonably safe even if the product is not accident proof.\u201d\nDefendants note that the effect of the court\u2019s instructions was that the jury was instructed on the \u201cconsumer expectations\u201d test but was not instructed on the \u201crisk-utility\u201d test. Defendants acknowledge that, since 1990, a plaintiff has been required to prove a design defect either by the consumer expectations test or the risk-utility test. See Miller v. Rinker Boat Co., 352 Ill. App. 3d 648, 660-61 (2004). However, according to defendants, the Illinois Supreme Court adopted the risk-utility test as the exclusive test for design defects of complex products in Blue v, Environmental Engineering, Inc., 215 Ill. 2d 78 (2005), and held that the consumer expectations test is applicable only to simple products posing open and obvious dangers. Defendants contend that, because the jury was instructed on the inapplicable consumer expectations test, rather than the risk-utility test, as requested by defendants, the jury was not apprised of the relevant legal principles. Furthermore, they argue that, should we determine that the court erred in instructing the jury on the consumer expectations test rather than the risk-utility test, a finding for the plaintiff under the risk-utility test would be against the manifest weight of the evidence and we should therefore reverse the jury\u2019s verdict outright. Alternatively, defendants ask that we reverse and remand this case for a new trial and proper instructions concerning the risk-utility test.\nIn response, plaintiff argues that any insinuation in Blue that the risk-utility test is the exclusive test to be used in strict liability cases involving complex products is dicta. Accordingly, plaintiff concludes, Blue does not affect the rule that a plaintiff may prove a strict liability design defect claim by either the consumer expectation test or the risk-utility test and the instructions correctly apprised the jury of the relevant legal principles. Plaintiff further notes that before Blue was decided, in a strict liability design defect case, this court found that a trial court that gave the jury instructions that are almost identical to those given in this case properly instructed the jury. See Carrillo v. Ford Motor Co., 325 Ill. App. 3d 955 (2001).\n\u201cA trial court is required to use an Illinois Pattern Jury Instruction when it is applicable in a civil case after giving due consideration to the facts and the prevailing law, unless the court determines that the instruction does not accurately state the law. [Citations.] If the pattern instruction does not accurately state the law, the court may instruct the jury pursuant to a nonpattern instruction. [Citation.] The trial court has discretion to determine which instructions to give the jury and that determination will not be disturbed absent an abuse of that discretion. [Citations.] The standard for deciding whether a trial court abused its discretion is whether, taken as a whole, the instructions fairly, fully, and comprehensively apprised the jury of the relevant legal principles. [Citation.] A reviewing court ordinarily will not reverse a trial court for giving faulty instructions unless they clearly misled the jury and resulted in prejudice to the appellant.\u201d Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 273-74 (2002).\nWe begin our analysis of this issue with an overview of strict liability design defect law in Illinois.\nA manufacturer bears a nondelegable duty to produce a product that is reasonably safe for all uses intended. Hansen v. Baxter Healthcare Corp., 198 Ill. 2d 420, 433 (2002). The principle of holding a manufacturer strictly liable for defective products was set forth in section 402A of the Second Restatement of Torts, which provides:\n\u201c(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if\n(a) the seller is engaged in the business of selling such a product, and\n(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although\n(a) the seller has exercised all possible care in the preparation and sale of his product, and\n(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.\u201d Restatement (Second) of Torts \u00a7402A, at 347-48 (1965).\nIllinois courts have adopted the test articulated in section 402A of the Second Restatement of Torts and have applied it both to manufacturing defects and design defects. See Suvada v. White Motor Co., 32 Ill. 2d 612 (1965); Rios v. Niagara Machine & Tool Works, 59 Ill. 2d 79 (1974); Hunt v. Blasius, 74 Ill. 2d 203 (1978). The test set out in section 402A has come to be known as the consumer expectation test and has been articulated by the supreme court as follows:\n\u201cA product is \u2018unreasonably dangerous\u2019 when it is \u2018dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.\u2019 \u201d Lamkin v. Towner, 138 Ill. 2d 510, 528 (1990), quoting Palmer v. Avco Distributing Corp., 82 Ill. 2d 211, 216 (1980).\nIllinois courts have also accepted what is known as the risk-utility or the risk-benefit test to prove that a product is unreasonably dangerous. See Hansen, 198 Ill. 2d at 433. Under the risk-utility test, a plaintiff \u201cmay demonstrate that a product is unreasonably dangerous because of a design defect by presenting evidence of an alternative design that would have prevented the injury and was feasible in terms of cost, practicality and technological possibility.\u201d Hansen, 198 Ill. 2d at 436. Concerning the two tests, the supreme court has said:\n\u201cA plaintiff may demonstrate that a product is defective in design, so as to subject a retailer and a manufacturer to strict liability for resulting injuries, in one of two ways: (1) by introducing evidence that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner or (2) by introducing evidence that the product\u2019s design proximately caused his injury and the defendant fails to prove that on balance the benefits of the challenged design outweigh the risk of danger inherent in such designs.\u201d (Emphasis added.) Lamkin, 138 Ill. 2d at 529.\nHansen, 198 Ill. 2d at 433. Accordingly, at least pr e-Blue, a plaintiff could choose to prove its claim under only the consumer expectations test, only the risk-utility test, or under both. See Mele v. Howmedica, Inc., 348 Ill. App. 3d 1, 17 (2004) (\u201cplaintiff sought to prove only that defendant\u2019s product failed to meet the ordinary consumer\u2019s expectations for the safety of the product. Although plaintiff, under the pleading, might also have sought to prove the design of the [product] unreasonably dangerous by showing its risks outweighed its benefits, he decided not to do so\u201d); Miller, 352 Ill. App. 3d at 671 (summary judgment on the plaintiffs strict liability claim was improper when genuine issue of material fact existed under the risk-utility test or under the consumer expectations test). Moreover, pr e-Blue, \u201cIllinois courts have not limited the use of the consumer expectation test to cases in which everyday experience alone led to the conclusion the design was unsafe.\u201d Mele, 348 Ill. App. 3d at 19.\nConcerning the evidence necessary to prove a strict liability design defect claim, Illinois courts have held that the consumer expectations and risk-utility tests are not mutually exclusive and should be applied together. Calles v. Scripto-Tokai Corp., 358 Ill. App. 3d 975, 979 (2005), aff\u2019d on other grounds, 224 Ill. 2d 247; Besse v. Deere & Co., 237 Ill. App. 3d 497, 501 (1992). We have endorsed the practice of states which \u201cconsider the benefits and risks of a product\u2019s design as evidence of what a reasonable consumer should expect\u201d and other states which use risk-benefit analysis but \u201callow evidence of consumer expectations \u2014 especially consumer anticipation of danger \u2014 for its relevance to the risks and benefits of the product\u2019s design.\u201d Calles, 358 Ill. App. 3d at 979. Indeed, Illinois courts have taken \u201ca position that accorded with courts that have viewed evidence of a product\u2019s risks and benefits as admissible evidence of what a reasonable consumer should expect from a product.\u201d Mele, 348 Ill. App. 3d at 19.\nMoreover:\n\u201cThe consumer expectation test usually does not require any evidence of ordinary consumer expectations, because the finder of fact may rely on its own experiences to determine what an ordinary consumer would expect. *** \u2018Whether a product is unreasonably dangerous is a question of fact to be determined by the jury. *** \u201c[T]he jury can draw their own reasonable conclusions as to the expectations of the ordinary consumer and the knowledge common in the community at large.\u201d \u2019 \u201d Mele, 348 Ill. App. 3d at 14-15, quoting Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 235, 429 A.2d 486, 489 (1980), quoting Slepski v. Williams Ford, Inc., 170 Conn. 18, 23, 364 A.2d 175, 178 (1975).\nHaving set out the state of strict liability design defect law in Illinois, pre-Blue, we now turn to a discussion of the Third Restatement of Torts and Justice Thomas\u2019s comments thereon in Blue.\nIn the Third Restatement of Torts, the American Law Institute (ALI) distinguished between manufacturing defects and design defects, recognizing that \u201c[c]onsumer expectations as to proper product design or warning are typically more difficult to discern than in the case of a manufacturing defect.\u201d Restatement (Third) of Torts: Products Liability \u00a72, Comment a, at 16 (1998). Accordingly, \u201c[s]ome sort of independent assessment of the advantages and disadvantages, to which some attach the label \u2018risk-utility balancing,\u2019 is necessary.\u201d Restatement (Third) of Torts \u00a72, Comment a, at 15-16 (1998). The ALI adopted section 2 of the Third Restatement of Torts, which distinguishes between manufacturing defects, design defects and failures to warn. Section 2 provides:\n\u201cA product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product:\n(a) contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product;\n(b) is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe;\n(c) is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe.\u201d Restatement (Third) of Torts: Products Liability \u00a72, at 14 (1998).\nThe ALI commented that, put another way, in order to prove a design defect, a plaintiff must prove that \u201ca reasonable alternative design would, at reasonable cost, have reduced the foreseeable risks of harm posed by the product and [that] the omission of the alternative design by the seller or a predecessor in the distributive chain rendered the product not reasonably safe\u201d (Restatement (Third) of Torts: Products Liability \u00a72, Comment d, at 19 (1998)), and that \u201c[t]he relative advantages and disadvantages of the product as designed and as it alternatively could have been designed may also be considered\u201d (Restatement (Third) of Torts: Products Liabilty \u00a72, Comment f, at 23 (1998)). However, the ALI noted, \u201c[t]his Restatement takes no position regarding the specifics of how a jury should be instructed. So long as jury instructions are generally consistent with the rule of law set forth in Subsection (b), their specific form and content are matters of local law.\u201d Restatement (Third) of Torts: Products Liability \u00a72, Comment f, at 25 (1998).\nThe ALI specifically rejected the consumer expectation test for design defects, commenting that \u201c[u]nder Subsection (b), consumer expectations do not constitute an independent standard for judging the defectiveness of product designs\u201d; however, the ALI noted that consumer expectations \u201cmay substantially influence or even be ultimately determinative on risk-utility balancing in judging whether the omission of a proposed alternative design renders the product not reasonably safe.\u201d Restatement (Third) of Torts: Products Liability \u00a72, Comment g, at 27-28 (1998).\nSection 2 of the Third Restatement of Torts was discussed at length in Blue. In Blue, the plaintiff was injured when he stuck his foot into a trash compactor designed and manufactured by the defendants. The plaintiff filed a complaint against the defendants under the theories of strict liability and negligent defective design. The strict liability claim was dismissed and the case proceeded to a jury trial on the issue of negligent design defect. The jury returned a general verdict against the defendants and found the plaintiff to be 32% contributorily negligent. The jury answered in the affirmative a special interrogatory asking whether the risk of injury in sticking a foot into a compactor was open and obvious. The trial court found that the verdict was inconsistent with the jury\u2019s answer to the special interrogatory, vacated the jury\u2019s verdict and entered judgment on the interrogatory for the defendants.\nOn appeal, the plaintiff argued that the interrogatory was improperly given and, alternatively, that the jury\u2019s response to the interrogatory was not inconsistent with the verdict. The appellate court found that the interrogatory was incorrectly given because it did not resolve an ultimate issue of fact. According to the appellate court, the risk-utility test applied to the plaintiffs case so that the plaintiff, having demonstrated that the design of the product proximately caused his injury, the burden shifted to the defendants to demonstrate that the benefits of the design outweigh its risks. The open and obvious nature of the risk, the appellate court held, was just one factor to consider in balancing the risks and benefits of the defendants\u2019 design. The appellate court reversed the judgment, reinstated the jury\u2019s verdict and remanded the cause for consideration of the parties\u2019 post-trial motions.\nThe defendant appealed to the supreme court, alleging that the trial court properly entered judgment on the special interrogatory. Justice Thomas penned the opinion of the court, joined by Justice Garman.\nThe court first turned its attention to the appellate court\u2019s reasoning, couching the issue before it as whether \u201cthe risk-utility analysis normally used in strict products liability cases is applicable to defective product design cases involving only a negligence theory of recovery.\u201d Blue, 215 Ill. 2d at 81. Though the case before the court was one concerning negligence, Justice Thomas noted that \u201cIllinois cases considering a cause of action for defective products liability sounding in negligence rather than strict liability are rare, probably because it appears to plaintiffs that it is easier to prove the strict liability count.\u201d Blue, 215 Ill. 2d at 95. Accordingly, the court turned to the law of strict liability for design defects. The court acknowledged that Illinois had adopted two alternative tests, the consumer expectations test and the risk-utility test, for proving a strict liability design defect case but noted that the ALI had recently recognized the inadequacy of the consumer expectations test to address defective product designs and had, accordingly, exclusively adopted the risk-utility test.\nIn assessing whether the risk-utility test applied to negligent design defect cases, as well as cases sounding in strict liability, the court noted that the difference between strict liability and negligence claims lies in the concept of fault. The court noted:\n\u201c[S]trict liability focuses on the product and only requires proof that the benefits of the challenged design do not outweigh the risk of danger inherent in such designs, that the alternative design would have prevented the injury, and that the alternative design was feasible in terms of cost, practicality and technology.\u201d Blue, 215 Ill. 2d at 97.\nOn the contrary, negligence focuses on the defendant\u2019s conduct. Consequently, the court held, in a negligence defective design case, a plaintiff is obliged to demonstrate that either:\n\u201c(1) the defendant deviated from the standard of care that other manufacturers in the industry followed at the time the product was designed, or (2) that the defendant knew or should have known, in the exercise of ordinary care, that the product was unreasonably dangerous and defendant failed to warn of its dangerous propensity.\u201d Blue, 215 Ill. 2d at 96.\nMoreover, in a negligence action, the court held, a plaintiff bears the burden of proving all elements of negligence and that burden does not shift to the defendant. The court held that, because a negligence action, unlike a strict liability action, focuses on the conduct of the manufacturer, rather than the product itself, contrary to the appellate court\u2019s finding, the risk-utility test utilized in strict liability defective design cases was not applicable to negligence design defect cases.\nTurning to the facts of the case before it, the court observed that the plaintiff had not actually presented any evidence of the industry standard and therefore did not prove his negligence case. Nonetheless, the court noted that any claim by the defendants that the plaintiff had not presented evidence of the standard of care or had not proven a duty or that there was insufficient evidence to sustain the plaintiffs cause of action was \u201cforeclosed at this point\u201d because the defendants had not raised such allegations in their posttrial motion and did not argue such allegations on appeal. Blue, 215 Ill. 2d at 100.\nNext the court turned to the defendants\u2019 contention on appeal: that the trial court properly ordered judgment on the special interrogatory concerning the open and obvious nature of the danger. The court stated that, while under the Second Restatement of Torts, the fact that a danger presented by the design of a product is open and obvious is a defense to a strict liability design defect cause of action, \u201c[a] strong majority of courts,\u201d including Illinois courts, and the Third Restatement of Torts \u201chave now rejected the open and obvious doctrine as an absolute defense to a claim of design defect in strict liability cases not premised on the failure to warn.\u201d Blue, 215 Ill. 2d 103. Nonetheless, in Illinois, \u201ceven in strict liability cases where the risk-utility test is applied, the obvious danger of the product may still bar liability as a matter of law in some cases.\u201d (Emphases in original.) Blue, 215 Ill. 2d at 109. The court cited Scoby v. Vulcan-Hart Corp., 211 Ill. App. 3d 106 (1991), as such a case and noted that where the danger created by a product is obvious and the product itself is simple, a court is to apply only the consumer expectation test. Blue, 215 Ill. 2d at 109.\nHowever, the court stated, in the context of negligent design defect cases, such as the case before the court, the open and obvious nature of a danger does not bar recovery but may be considered as part of the duty analysis. Accordingly, because the open and obvious nature of the danger created by sticking a foot in a compactor is not an absolute bar to the plaintiffs recovery, \u201cthe interrogatory was improper, as it did not resolve an ultimate issue in the case and was not necessarily inconsistent.\u201d Blue, 215 Ill. 2d at 113.\nSpecial concurrences were filed by Justice Freeman and Justice Fitzgerald, joined by Justice McMorrow. Justice Kilbride also wrote separately, concurring in part and dissenting in part, while Justice Karmeier did not take part in the decision.\nConcerning the court\u2019s holding that the risk-utility test is not applicable to negligent design defect cases, Justice Fitzgerald wrote:\n\u201cBecause the majority determines that defendant has not properly challenged the duty determination, I believe it is unnecessary to decide whether the risk-utility test is applicable in determining a duty in a negligence design defect case. It is therefore dicta.\u201d Blue, 215 Ill. 2d at 116 (Fitzgerald, J., specially concurring, joined by Mc-Morrow, C.J.).\nJustice Fitzgerald further opined that the risk-utility test does, in fact, play a role in assessing whether a duty exists in a negligent design defect case.\nJustice Kilbride agreed with the court\u2019s conclusion that the special interrogatory given to the jury was inappropriate because the jury\u2019s answer to the interrogatory could not have resolved the ultimate issue in the case. He further agreed that the risk-utility test does not apply in negligent design defect cases. However, Justice Kilbride dissented to the court\u2019s discussion of the Scoby exception to the risk-utility test because, since the compactor was not a simple machine, such analysis was unnecessary.\nJustice Freeman also specially concurred. Though he wished to concur with Justice Thomas\u2019s final judgment in the case, Justice Freeman sought to distance himself from Justice Thomas\u2019s reasoning and dicta. The present case, he explained, was one concerning a negligent product design defect. However, \u201c[t]he majority opinion contains sweeping pronouncements effecting changes not only with respect to products liability cases based on a negligence theory but also products liability cases based upon strict liability.\u201d Blue, 215 Ill. 2d at 114 (Freeman, J., specially concurring). Justice Freeman agreed with Justice Fitzgerald that the case before the court was not an appropriate one in which to decide whether the risk-utility test applied to negligent design defect cases and with Justice Kilbride that the court\u2019s simple machines discussion was dicta. Justice Freeman noted that \u201conly three members of this court support the conclusion, expressed in the majority opinion, that the risk-utility test does not apply in a negligence design defect case.\u201d Blue, 215 Ill. 2d at 114 (Freeman, J., specially concurring).\nDefendants argue that the Blue opinion marks a change in Illinois law regarding strict liability design defect cases. Specifically, defendants note that Justice Thomas repeatedly cited the Third Restatement favorably and stated that to prove a strict liability design defect claim, a plaintiff must show the existence of a feasible alternative design and that the benefits of the allegedly defective design do not outweigh its risks. Defendants suggest that Justice Thomas\u2019s discussion of the Scoby exception implicitly limited the consumer expectations test to cases concerning the defective design of simple products posing open and obvious dangers. Defendants further assert that, \u201c[a]lthough several justices concurred based on the view that the discussion of whether the risk-utility analysis applies to negligent design defect cases was dicta, none of the justices questioned the Court\u2019s conclusion that section 2b of the Restatement (Third) correctly set forth the law in Illinois for strict liability design defect cases.\u201d\nWe disagree with defendants\u2019 construction of Blue. Blue concerned a negligent design defect case in which the ultimate determinative issue was whether the fact that a danger presented by the allegedly defective design was an open and obvious danger was an absolute bar to the plaintiff\u2019s recovery so that a special interrogatory on the subject was appropriate. Though, under the standard created by the court, the plaintiff failed to prove his negligence case, because the defendants did not raise this issue, any objection to that error was foreclosed. Accordingly, the discussion of the issue was dicta. Moreover, Justice Thomas, in his discussion of the risk-utility test and the Third Restatement of Torts, never explicitly endorsed the Third Restatement or renounced the consumer expectations tests for anything other than simple products whose dangers are obvious, as defendants allege.\nWe further disagree with defendants\u2019 assertion that the discussion of the law of strict liability was binding and was not dicta because the concurring justices did not explicitly categorize it as such. On the contrary, Justices Freeman and Fitzgerald, joined by Justice McMor-row, clearly stated that the entire discussion regarding the applicability of the risk-utility test to negligent design defect cases was dicta. An integral part of that discussion was the court\u2019s analysis of the risk-utility rule as applied to strict liability cases and section 2(b) of the Third Restatement of Torts, which clearly concerns strict liability cases. As Justice Freeman noted, only three members of the court supported the discussion regarding the risk-utility test. See also Calles, 358 Ill. App. 3d at 982 (\u201cJustice Thomas expounded at length on tort law concerning strict products liability, in a portion of his opinion the majority of the court considered dicta\u201d). Furthermore, even if the concurring justices did not specifically denounce the court\u2019s strict liability discussion as dicta, we find that such discussion was clearly dicta because the case before the court did not concern the standards applicable to a strict liability design defect case and instead concerned a negligent design defect case and because the discussion of the risk-utility test, even in the context of negligent design defect cases, did not determine the outcome of the case. See Rodriguez v. Sheriffs Merit Comm\u2019n of Kane County, 218 Ill. 2d 342, 356 (2006) (finding a statement by the appellate court that was unnecessary to its holding to be dicta). Accordingly, we find that the law of Illinois remains that a plaintiff may prove a strict liability design defect by either the consumer expectations test or the risk-utility test.\nOur conclusion is bolstered by the supreme court\u2019s recent decision in Calles. There, the court was called upon to consider the so-called Scoby exception. The court found that \u201cthe open and obvious danger of a product does not create a per se bar to a manufacturer\u2019s liability, nor does it preclude application of the risk-utility test. *** We reject Scoby\u2019s adoption of a per se rule excepting simple products with open and obvious dangers from analysis under the risk-utility test.\u201d Calles, 224 Ill. 2d at 263. Of particular importance to this case was the supreme court\u2019s favorable citation to Lamkin and pronouncement that since Lamkin, the court had continued to adhere to the holding that \u201ca plaintiff may demonstrate a product has been defectively designed \u2018in one of two ways,\u2019 \u201d with the risk-utility test or with the consumer expectations test. Calles, 224 Ill. 2d at 255, quoting Lamkin, 138 Ill. 2d at 529.\nHere, plaintiff chose to proceed under the consumer expectations test. The jury was fully instructed on consumer expectations law and was, in our view, fully instructed on the applicable law.\nThough we have found that Blue does not change the law with regard to the standard required to prove a strict liability design defect claim, we believe that it is important to note that even if, as defendants suggest, Blue marked a change in Illinois law, it is doubtful that that change would be applied to this case. This point was conspicuously not raised by either party in its briefs.\nThe jury in this case returned its verdict on March 15, 2005. Blue was decided on April 7, 2005. A decision of our supreme court is generally applied retroactively to causes pending at the time the decision was announced. Lannom v. Kosco, 158 Ill. 2d 535, 538 (1994); People v. Melka, 319 Ill. App. 3d 431, 437 (2000). However, a supreme court decision will be applied prospectively only if the court expressly states that the decision is to be applied prospectively only or a later court declines to give the opinion retroactive effect with respect to the parties appearing before it. Aleckson v. Village of Round Lake Park, 176 Ill. 2d 82, 86 (1997). A later court may decide to apply a decision prospectively only if the decision overrules past precedent or decides an issue of first impression that was not clearly foreshadowed. Bogseth v. Emanuel, 166 Ill. 2d 507, 515 (1995). If either of those propositions is true, in determining whether to apply the decision retroactively or prospectively, the later court will also consider whether the purpose of the new rule will be retarded or promoted by retroactive or prospective application and whether retroactive or prospective application is mandated by a balance of the equities. Bogseth, 166 Ill. 2d at 515.\nThough, having determined that Blue does not change the law, we need not undergo the above analysis, we note that if Blue had adopted section 2 of the Third Restatement of Torts and had limited the consumer expectations test to cases involving simple products posing obvious dangers, it would have arguably overruled Lamkin and Hansen. Moreover, if Blue were found to overrule those precedential cases, considering that the trial, at which plaintiff proceeded under a consumer expectations theory, had already been completed at the time that Blue was decided and that the jury had already been instructed and had already returned a verdict for plaintiff, it is not unlikely that a balance of the equities would result in a finding that the new rule announced in Blue should be applied prospectively only, at least with regards to these parties.\nWe further reject defendants\u2019 argument that the trial court erred in denying their suggested instructions regarding the risk-utility test when it allowed testimony about the risks and benefits of the Escort\u2019s seat. As noted above, Illinois courts allow evidence of the risks and benefits of an allegedly defective product as evidence that it did not conform with consumer expectations. See, e.g., Besse, 237 Ill. App. 3d at 501.\nWe also reject defendants\u2019 argument that the trial court erred in declining to instruct the jury on risk-utility rather than consumer expectations because no specific evidence of what a consumer would expect of his car seat was presented. As stated above, the consumer expectation test does not require specific evidence of consumer expectations when the jury can rely on its own experiences to draw its own reasonable conclusions regarding the expectations of an ordinary consumer. Mele, 348 Ill. App. 3d at 14-15.\nFinally, we observe that in their reply brief, defendants generally argue that the jury\u2019s verdict was against the manifest weight of the evidence. However, this issue was not raised in defendants\u2019 opening brief. On the contrary, in their opening brief, defendants\u2019 only well-developed argument in this regard was that, if the consumer expectations instructions were wrongly given and the court should have instead instructed the jury regarding the risk-utility test, the verdict was against the manifest weight of the evidence because the evidence did not show that the benefits of a yielding seat design were outweighed by its risks. We refuse to address any argument, raised for the first time in defendants\u2019 reply brief, that, even if the jury were correctly instructed on the consumer expectations test, under that test, the verdict was against the manifest weight of the evidence. See People v. Brown, 169 Ill. 2d 94, 108 (1995) (issue raised for first time in reply brief is waived).\nDefendants next claim that the trial court committed prejudicial error in failing to tender the jury the apportionment instructions drafted by defendants.\nAgain, we note that we will not reverse on the grounds alleged by defendants unless we find that the trial court abused its discretion and\n\u201c[t]he standard for deciding whether a trial court abused its discretion is whether, taken as a whole, the instructions fairly, fully, and comprehensively apprised the jury of the relevant legal principles. [Citation.] A reviewing court ordinarily will not reverse a trial court for giving faulty instructions unless they clearly misled the jury and resulted in prejudice to the appellant.\u201d Schultz, 201 Ill. 2d at 273-74.\nHere, the court instructed the jury that Timberlake had been found responsible for James\u2019s death. It further instructed the jury, pursuant to a modified version of Illinois Pattern Jury Instructions, Civil, No. 600.02 (2005), that if it found that defendants were also legally responsible for proximately causing James\u2019s death, then it must apportion the damages \u201cby determining the relative degree of responsibility of\u201d defendants and Timberlake. The court further instructed the jury:\n\u201cOn your verdict form you will state the percentage of responsibility of each of these defendants, treating Mazda Motor Corporation and Ford Motor Company as a single defendant.\nThe total of these percentages must add up to 100 percent.\u201d\nHowever, the court refused to instruct the jury, as requested by defendants, that if it attributed to either defendants or Timberlake \u201cless than 25% of the responsibility for proximately causing the death, that defendant will be required to pay only the percentage attributed that defendant of the total damage award\u201d and that if it attributed to either defendants or Timberlake \u201c25% or more of the total responsibility proximately causing the death,\u201d that defendant would be held jointly and severally liable, meaning that that defendant \u201ccould be required to pay 100% of the damages awarded, even if the percentage you attribute to that defendant is less than 100%.\u201d\nAfter the jury rendered its verdict, three jurors signed affidavits swearing that they thought defendants would only be required to pay 40% of the total damages and that they would not have signed the verdict form had they known that defendants could be held jointly and severally liable for the entire amount of the verdict. The trial court disregarded the affidavits.\nWe first note that the trial court properly disregarded the jurors\u2019 affidavits, which, defendants argue, demonstrate that the jury entered a \u201ccompromise verdict\u201d with the intention that defendants pay only $10.8 million. Generally, a jury verdict cannot be impeached by a juror\u2019s testimony. People v. Hobley, 182 Ill. 2d 404, 457 (1998). \u201cThis rule prevents the admission of a juror\u2019s affidavit to show the \u2018motive, method or process by which the jury reached its verdict.\u2019 \u201d Hobley, 182 Ill. 2d 457, quoting People v. Holmes, 69 Ill. 2d 507, 511 (1978). However, the general rule does not preclude the admission of jurors\u2019 affidavits \u201cwhich are offered as proof of improper extraneous influences on the jury.\u201d Hobley, 182 Ill. 2d at 458. Here, the jurors\u2019 affidavits were offered to prove their motive in setting the amount of the verdict and in apportioning responsibility between defendants and Timberlake. Accordingly, the court was correct not to consider them.\nDefendants do not cite any cases that stand for the proposition that their requested instruction on the effect of the law of joint and several liability was required. In fact, as Chief Justice McMorrow observed in her concurrence in Unzicker v. Kraft Food Ingredients Corp., 203 Ill. 2d 64, 104 (2002) (McMorrow, C.J., specially concurring), in cases such as this, \u201cthe jury is typically not instructed on the effect of joint and several liability.\u201d Furthermore, in response to the Unzicker defendant\u2019s allegation that the statute establishing the law of joint and several liability was unconstitutional, Justice McMorrow wrote that, while instructing a jury on the effect of joint and several liability would help avoid \u201ccompromise verdicts,\u201d \u201c[wjhether compromise verdicts are a pervasive problem in the civil justice system has been seriously questioned.\u201d Unzicker, 203 Ill. 2d at 105 (McMorrow, C.J., specially concurring). Accordingly, we find that the given instructions adequately outlined the procedure for apportioning fault between defendants and Timberlake and the court did not err in denying defendants\u2019 requested instruction.\nDefendants next contend that the trial court committed prejudicial error in denying defendants\u2019 request that it instruct the jury pursuant to Illinois Pattern Jury Instructions, Civil, No. 12.01 (2005) (hereinafter IPI Civil (2005) No. 12.01) that it could consider Timberlake\u2019s intoxication in \u201cdetermining his percentage of fault\u201d and that \u201c[a]n intoxicated person is held to the same standard of care as a sober person.\u201d\nPlaintiff responds that the instruction was improper because summary judgment had already been entered against Timberlake. Therefore, whether he breached the standard of care or was at fault in bringing about James\u2019s death was a forgone conclusion. Instead of determining that issue, the jury was obliged only to assess the degree to which Timberlake was responsible for James\u2019s death. We agree with plaintiffs construction of the instruction.\nWe further agree with plaintiff that French v. City of Springfield, 5 Ill. App. 3d 368 (1972), the case cited by defendants in support of their contention that the court\u2019s failure to give the requested instruction on intoxication requires reversal, is distinguishable from the case at bar.\nIn French, the defendant argued at trial that the negligence of a nonparty intoxicated driver was the sole proximate cause of the plaintiffs injury. Evidence was presented at trial that the driver may have been drinking. Because the trial court did not instruct the jury pursuant to IPI Civil (2005) No. 12.01, the jury was not apprised of the effect of the driver\u2019s intoxication or his standard of care. Failure to instruct the jury on the standard of care to which the driver was held was reversible error. On the contrary, here, the court had already concluded that Timberlake was negligent. Accordingly, the standard of care to which he was held was unimportant for the jury\u2019s purposes.\nDefendants finally allege that the trial court erred in denying their request that it instruct the jury pursuant to Illinois Pattern Jury Instructions, Civil, No. 12.04 (2005) (hereinafter IPI Civil (2005) No. 12.04), that if it decided \u201cthat the sole proximate cause of the death of James Mikolajczyk was the conduct of William Timberlake and not that of Ford/Mazda, then your verdict should be for Ford/Mazda.\u201d\nThe Notes on Use of IPI Civil (2005) No. 12.04 specifically state, \u201cThis instruction should be used only where negligence of a person who is not a party to the suit may have concurred or contributed to cause the occurrence.\u201d (Emphasis added.) IPI Civil (2005) No. 12.04, Notes on Use, at 58. Here, the court correctly denied the requested instruction because, though the issue of Timberlake\u2019s negligence had already been decided at the time of trial, Timberlake remained a party to the suit.\nDefendants next contend that the trial court erred in permitting plaintiffs experts to testify to other accidents. Defendants argue that the other accidents were not substantially similar to James\u2019s accident and that the experts\u2019 testimony was hearsay, irrelevant, and prejudicial.\n\u201c \u2018The admission of evidence in a trial is within the sound discretion of the trial court and will not be reversed absent an abuse of discretion.\u2019 [Citation.] An abuse of discretion exists where no reasonable person would agree with the position of the trial court.\u201d Brax v. Kennedy, 363 Ill. App. 3d 343, 355 (2005), quoting Skubak v. Lutheran General Health Care Systems, 339 Ill. App. 3d 30, 36 (2003). Evidence of prior accidents is generally admissible to show that the product causing the accidents is dangerous and defective. Bass v. Cincinnati, Inc., 180 Ill. App. 3d 1076, 1080 (1989). However, in order to be admissible, the prior accident must have involved equipment that was in substantially the same condition as that involved in the accident in question and the accidents themselves must be substantially similar. Bass, 180 Ill. App. 3d at 1079; Gowler v. Ferrell-Ross Co., 206 Ill. App. 3d 194, 202 (1990). It need not be shown that the prior accidents occurred in an identical manner to the accident in question, just that the accidents were substantially similar. Bass, 180 Ill. App. 3d at 1080; Gowler, 206 Ill. App. 3d at 202.\nIn this case, plaintiff presented evidence of three other accidents. In the first, the driver of a 1998 Escort, Yolanda Teters, was hit from behind while pulling out of a driveway. Her yielding seat ramped and her head struck the backseat of her car causing injuries that resulted in her death. In the second, the driver of a 1997 Escort, Betty Potter, lost control and hit a tree with the back of her car. Her yielding seat ramped and her head struck the backseat of her car causing injuries that resulted in her paralysis. In the third, the driver of a mid-1980s Escort, Cathy Bitters, was involved in a rear collision that caused her car to roll. Her yielding seat ramped and her head struck the backseat of her car causing injuries that resulted in her paralysis.\nDefendants contend that these accidents are not substantially similar to the case at bar because the seats in the other accidents were not CT20 seats, as James\u2019s was, because the seats did not utilize the same seat belt system as James\u2019s did, because two of the other Escorts were four-door sedans while James\u2019s was a two door and because the other accidents were not rear-end collisions occurring while the Escorts were stopped.\nWhile clearly James\u2019s accident was not identical to Teters\u2019s, Potter\u2019s or Bitters\u2019s accident, all involved the same alleged defect, a seat that was built with inadequate strength, and in each, that allegedly defective seat caused the accident victim\u2019s brain and spinal injuries. See Gowler, 206 Ill. App. 3d at 203 (\u201cthe cracking mill involved in each accident had the same design defect as did the cracking mill on which plaintiff was injured and the resulting injuries from the other cracking mills were similar to the injury incurred by plaintiff. Therefore, the trial court properly admitted evidence of subsequent accidents\u201d)- Moreover, all accidents involved an impact to the rear of the cars driven by the accident victims. Accordingly, we cannot say that the other accidents were so dissimilar that the trial court abused its discretion in admitting evidence concerning them.\nWe further find, contrary to defendants\u2019 contention, that the evidence was relevant and was not hearsay and that the admission of the evidence was not overly prejudicial. Curiously, plaintiff has failed to respond to these contentions.\nFirst, defendants\u2019 contention that the experts\u2019 testimony was hearsay is waived. Though defendants objected to the admission of the evidence on the grounds that the accidents were not substantially similar, they did not raise hearsay as a basis for their objection. See Land & Lakes Co. v. Industrial Comm\u2019n, 359 Ill. App. 3d 582, 596 (2005) (Donovan, J., specially concurring) (\u201c[a] party is required to make specific objections to evidence, based on particular grounds, and the failure to do so results in a waiver of objections as to all other grounds not specified or relied on\u201d); Barreto v. City of Waukegan, 133 Ill. App. 3d 119, 130 (1985).\nWaiver aside, defendants\u2019 contention regarding hearsay fails. Hearsay is an out-of-court statement presented for the truth of the matter it asserts that is dependent for its value on the credibility of an out-of-court declarant. Chapman v. Hubbard Woods Motors, Inc., 351 Ill. App. 3d 99, 106 (2004).\nFirst, the experts testified to the results of their investigations of the other accidents. Though they were not at the scenes of the accidents, they had personal knowledge of what took place pursuant to their investigations of those accidents; their testimony reflected their investigations, rather than the statement of an out-of-court declarant. Moreover, even if the experts\u2019 statements were not based on their personal observations, they are not inadmissible hearsay because they were not presented for the truth of the matter they asserted. The experts\u2019 testimony asserted that Teters, Potter and Bitters were injured when their cars were struck from the rear and their seats ramped. However, the testimony was presented to rebut defendants\u2019 assertion that accidents such as James\u2019s were very rare, to show that the design of James\u2019s seat was dangerous and to show that the seat\u2019s performance in James\u2019s accident was reasonably foreseeable to defendants.\nWe further find that the testimony was relevant and was not overly prejudicial. As stated above, the testimony regarding other similar accidents was relevant to show that James\u2019s seat was unreasonably dangerous and that the seat would ramp and cause his fatal injuries was reasonably foreseeable to defendants. Furthermore, we cannot say that the probative value of the evidence was outweighed by its prejudicial impact, particularly in light of the fact that the experts\u2019 testimony on the subject of other accidents was brief.\nNotably, in a footnote, defendants observe that plaintiff\u2019s experts were also permitted, over defendants\u2019 objection, to testify regarding the performance of rigid seats in police vehicles. However, defendants do not develop an argument that the court erred in admitting that evidence, only suggesting that its admission, coupled with the admission of testimony regarding Teters\u2019s, Potter\u2019s and Bitters\u2019s accidents, was prejudicial and denied defendants a fair trial, and do not cite authority in support thereof. Accordingly, we refuse to address this contention. See 210 Ill. 2d R. 341(a) (noting that footnotes are discouraged); 210 Ill. 2d R. 341(h)(7) (requiring that an appellant\u2019s brief include citations to the authorities and pages of the record relied upon); People ex rel. Department of Labor v. General Electric Co., 347 Ill. App. 3d 72, 87 (2004) (\u201c[s]ubstantive arguments may not be made in footnotes and responses made thereto are likewise improper\u201d); In re Marriage of Suriano, 324 Ill. App. 3d 839, 851 (2001) (lack of citation to legal authority results in waiver of an appellant\u2019s contention).\nDefendants next contend that the jury\u2019s $25 million verdict for loss of society is arbitrary and excessive. They ask that we, therefore, vacate the judgment of the trial court and remand for a new trial, or, in the alternative, that we order remittitur to reduce the amount of the loss of society award.\n\u201cThe determination of damages is a question reserved to the trier of fact, and a reviewing court will not lightly substitute its opinion for the judgment rendered in the trial court. [Citations.] An award of damages will be deemed excessive if it falls outside the range of fair and reasonable compensation or results from passion or prejudice, or if it is so large that it shocks the judicial conscience.\u201d Richardson v. Chapman, 175 Ill. 2d 98, 113 (1997).\nDefendants argue that the loss of society verdict was excessive because \u201c[n]o Illinois court has ever upheld an eight-figure loss of society award. Nor is there some unusual evidentiary basis that could justify an eight-figure award in this case.\u201d Defendants cite several Illinois cases in which the juries awarded lesser loss of society awards than was awarded here in support of their argument. See, e.g., Jones v. Chicago Osteopathic Hospital, 316 Ill. App. 3d 1121 (2000) (upholding a $2.2 million loss of society award).\nPlaintiff urges us not to compare the verdict amount in this case to other cases, arguing that such a comparison is not authorized under Illinois case law. Plaintiff points out that, should we determine that comparison is appropriate, several courts have upheld noneconomic awards to accident survivors in the tens of millions. See, e.g., Richardson, 175 Ill. 2d 98 (upholding an award of $3.5 million for disability, $2.1 million for disfigurement and $4.6 million for pain and suffering, for a total noneconomic award of $10.2 million); Barton v. Chicago & North Western Transportation Co., 325 Ill. App. 3d 1005 (2001) (upholding an award of $9 million for disability, $8 million for disfigurement, $8 million for pain and suffering and $3 million for future pain and suffering, for a total noneconomic award of $28 million).\nThis issue was recently addressed in Velarde v. Illinois Central R.R. Co., 354 Ill. App. 3d 523 (2004). The Velarde court cited Richardson, in which the supreme court refused to engage in comparison of verdicts and noted that Illinois courts have traditionally declined to make comparisons when determining whether an award is excessive, and Tierney v. Community Memorial General Hospital, 268 Ill. App. 3d 1050 (1994), in which the court stated that it is simply not the law in Illinois to compare a jury\u2019s verdict to other similar awards. The Velarde court examined Johnson v. May, 223 Ill. App. 3d 477 (1992), a case cited by the Velarde defendants and the defendants in this case in support of a comparison of awards. The court noted that the Johnson court only made passing reference to the jury award in another case in support of its conclusion that a judgment for the defendants was contrary to the weight of the evidence. Specifically, the Johnson court stated:\n\u201cThe reported case law shows that persons afflicted with posttrau-matic 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 was in this case.\u201d (Emphasis added.) Johnson, 223 Ill. App. 3d at 488.\nThe Velarde court refused to read \u201cJohnson to mean that a bare comparison of dollar figures is an appropriate basis for deeming an award excessive\u201d and declined \u201cto depart from \u2018the clear weight of Illinois authority [which] reject[s] the \u201ccomparison\u201d concept.\u2019 \u201d Velarde, 354 Ill. App. 3d at 542, 543, quoting Tierney, 268 Ill. App. 3d at 1065.\nWe agree with Velarde\u2019s assessment of Illinois law and refuse to compare the amount awarded in this case to the amounts awarded in other cases in determining whether the verdict was excessive.\nDefendants further argue that the jury\u2019s $25 million loss of society award was \u201cpunitive, not compensatory.\u201d They note that the loss of society award, which they categorize as \u201cpunitive,\u201d is 12V2 times the amount of the award for loss of money, goods and services. Defendants cite State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 425, 155 L. Ed. 2d 585, 605-06, 123 S. Ct. 1513, 1524 (2003), in which the Court noted that \u201cin practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process,\u201d and Heldenbrand v. Roadmaster Corp., 277 Ill. App. 3d 664, 674 (1996), in which this court noted that a punitive damage award of three times the compensatory damage amount is appropriate.\nWe agree with plaintiffs assessment of this argument that \u2018 \u2018 [editing punitive damages decisions makes no sense.\u201d Although defendants contend that a loss of society award of $25 million must be punitive rather than compensatory, they do not develop this argument. Moreover, as plaintiff notes, punitive damages were not requested or authorized in this case. The $25 million loss of society award was pecuniary, not punitive. See Drews v. Gobel Freight Lines, Inc., 144 Ill. 2d 84, 92 (1991) (loss of society, companionship and conjugal relations are compensable pecuniary damages in a wrongful death suit). Accordingly, the three to one ratio applicable in assessing whether punitive damage amounts are excessive is inapplicable to this case.\nNonetheless, though we refuse to deem the loss of society award excessive merely because it was larger than loss of society awards in other cases, and though we refuse to regard the loss of society award as punitive, we cannot allow the $25 million loss of society award to stand because it exceeds fair and reasonable compensation and shocks the judicial conscience.\nThe testimony presented at trial showed that the Mikolajczyk family was very close. They spent a great deal of time together. James was very affectionate with plaintiff. James was best friends with his daughter, coached his son\u2019s sports teams and engendered in his son a love of science. When James died, plaintiff was left to raise the children, who were 10 and 14 years old, alone. Since their father\u2019s death, both children have dealt with emotional problems. However, each has also gone on to be a successful student. In fact, Adam has gone on to earn a scholarship to Notre Dame.\nIn plaintiff\u2019s closing statement, plaintiff\u2019s attorney reiterated the testimony concerning the family\u2019s close relationship. Plaintiffs attorney then stated:\n\u201cWhen it comes down to it, I\u2019m almost without the ability to give you a dollar value that makes sense for the loss of society. It\u2019s something that I have struggled with because I know it\u2019s your chore and it\u2019s uniquely your chore and it\u2019s one that the lawyers are free on both side[s] to make suggestions and I will.\nI can\u2019t believe that a fair appraisal of the loss of society that these people have suffered would be less than $25 million. I can\u2019t believe it.\u201d\nThough defendants\u2019 attorney did not suggest a damages amount, he reminded the jury:\n\u201cUnder the law, under the law, you\u2019re required to find just and fair compensation and you have to be reasonable and fair.\nStanding up here as [plaintiffs attorney] has done, he can ask for anything. It doesn\u2019t mean it\u2019s fair. It doesn\u2019t mean it\u2019s just. It doesn\u2019t mean it\u2019s reasonable. But that\u2019s for you to decide.\u201d\nIn their posttrial motion, defendants argued that the $25 million loss of society award was excessive. In refusing to grant a new trial on that basis or to remit the amount of the award, the trial court stated:\n\u201cMany plaintiffs\u2019 attorneys say that their plaintiffs are great plaintiffs and very sympathetic and good families and a good person. The jury\u2019s going to love the plaintiff. I hear that in basically every case.\nIn this case it was true. Mr. Mikolajczyk was a unique individual, a very wonderful person, and the family was very, very close, much closer than most of the families we have in court on a daily basis. The jury heard that.\u201d\nWe agree that the evidence presented at trial certainly revealed the close nature of the Mikolajczyk family\u2019s relationship and demonstrated that the loss suffered by the family when James died was enormous. The loss of a parent in any family relationship is catastrophic. Gone is the guidance one expects of a parent. Gone is the love and affection in such relationships. Gone is the intimacy so ever-present in a close family. Unfortunately, however, our system of justice does not have a formula to determine the fair amount of loss of society. Often the finder of fact relies more on the heart than the mind.\nWhile we understand the jury\u2019s sympathy, we must disagree with the verdict and the trial court\u2019s assessment of that verdict and find that the $25 million loss of society award exceeds all fair and reasonable compensation and is so large as to shock the judicial conscience.\nTurning now to the remedy for the excessive loss of society award, we note that defendants ask that we remand for an entirely new trial on damages or, in the alternative, order a remittitur of the award to $6 million, an amount equal to three times the loss of money, goods and services award. Plaintiff responds that remittitur is not proper in this case.\n\u201c \u2018The ordering of remittitur in lieu of wholly setting aside an excessive jury verdict, affirmance of which would be erroneous, has consistently been acknowledged to be promotive of the ends of justice and the termination of litigation.\u2019 [Citation.] \u2018The practice of ordering a remittitur of excessive damages has long been recognized and accepted as part of Illinois law.\u2019 [Citation.] Supreme Court Rule 366(a)(5) (155 Ill. 2d R. 366(a)(5)) *** specifically provides that a reviewing court has the power to grant any relief, including the entry of a remittitur. \u2018A remittitur is an agreement by the plaintiff to relinquish, or remit, to the defendant that portion of the jury\u2019s verdict which constitutes excessive damages [citations] and to accept the sum which has been judicially determined to be properly recoverable damages [citation]. The only alternative to a remittitur in a case where the verdict exceeds the damages properly proven [citations], and/or where the verdict can be accounted on the sole basis that the jury acted from some improper motive [citation], such as passion or prejudice [citation], is for the trial judge to order a new trial [citations].\u2019 [Citation.] A court does not have the authority to reduce the damages by entry of a remit-titur if plaintiff objects or does not consent. [Citation.] \u2018The trial court must afford the plaintiff the choice of agreeing or refusing to the entry of a remittitur, with the proviso that the plaintiffs refusal to agree to the entry of a remittitur will result in the ordering of a new trial.\u2019 \u201d Peter J. Hartmann Co. v. Capitol Bank & Trust Co., 353 Ill. App. 3d 700, 711 (2004).\nHaid v. Tingle, 219 Ill. App. 3d 406, 411-12 (1991); Best v. Taylor Machine Works, 179 Ill. 2d 367, 412-13 (1997); Tri-G, Inc. v. Burke, Bosselman & Weaver, 222 Ill. 2d 218, 253-54 (2006).\nWe believe that, contrary to both parties\u2019 assertions, a remittitur rather than a new trial is proper in this case. Unlike in Bart v. Union Oil Co. of California, 185 Ill. App. 3d 64 (1989), in which a loss of consortium damage award was vacated and the case was remanded for a new damages trial because the evidence did not show that a loss of consortium award was warranted, here, there was sufficient evidence presented at trial to support a loss of society award. Moreover, unlike in Brown v. Arco Petroleum Products Co., 195 Ill. App. 3d 563 (1989), in which a new trial was mandated not only by an excessive damages award but also by multiple trial errors that deprived the defendants of a fair trial, in this case, as discussed above, all of defendants\u2019 contentions of trial error were without merit.\nAs stated above, we find that the jury\u2019s loss of society award of $25 million to be excessive. See Richardson, 175 Ill. 2d at 115 (finding that a $100,000 award for pain and suffering, when the plaintiff suffered a laceration on her forehead, which healed with minimal scarring, and nightmares about her accident, was excessive and concluding that \u201ca more appropriate figure for pain and suffering would be $50,000\u201d); Johanek v. Ringsby Truck Lines, Inc., 157 Ill. App. 3d 140, 156-57 (1987) (finding, \u201c[a]fter considering all of the evidence most favorably to [the plaintiff],\u201d that an $880,000 award for loss of consortium, when the plaintiff\u2019s spouse was often \u201cdepressed and ornery\u201d after his accident and when the plaintiff was often deprived of her spouse\u2019s companionship during his hospital stays, was excessive and that the plaintiff was \u201centitled to recover a sum not exceeding $500,000\u201d). We, therefore, remand this case to the trial court for a hearing to determine the appropriate amount of remittitur. By way of guidance to the trial court, we would find it difficult to deem reasonable a loss of society award of more than seven figures in this case and would certainly find unreasonable an award of any more than one-half of the loss of society award settled upon by the jury. After the remit-titur amount is set by the trial court, if plaintiff does not consent to the reduced award within a reasonable time period as set by the trial court, then the trial court shall order a new trial between the parties on the issue of the amount of loss of society damages.\nNext, defendants contend that they were deprived of a fair trial by the cumulative effect of the trial court\u2019s errors. Accordingly, they ask that we reverse the judgment of the trial court and remand for a new trial. However, having determined, as discussed above, that the trial court did not commit the errors alleged by defendants, we find this contention to be without merit.\nFinally, defendants contend that section 2 \u2014 1303 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 1303 (West 2004)), which provides that \u201c[\u00a1judgments recovered in any court shall draw interest at the rate of 9% per annum from the date of judgment until satisfied,\u201d is unconstitutional. The entirety of defendants\u2019 argument is as follows:\n\u201cFor the same reasons argued by Lakewood Electric Corporation in its appeal before this Court in [Schultz v. Lakewood Electric Corp., 362 Ill. App. 3d 716 (2005), defendants] contend that [section 2 \u2014 1303] is an unconstitutional violation of the due process and equal protection clauses of the federal and Illinois state constitutions.\u201d\nRule 341(h)(7) requires that an appellate brief contain an \u201c[argument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on.\u201d 210 Ill. 2d R. 341(h)(7). Failure to comply with Rule 341(h)(7) generally results in a waiver of the issue. People v. Lantz, 186 Ill. 2d 243, 261-62 (1999).\nIn this case, defendants do not offer any argument or meaningful citation to authority in their brief. In fact, in support of their contention that section 2 \u2014 1303 is unconstitutional they cite only a case which specifically held that section 2 \u2014 1303 is constitutional. See Schultz, 362 Ill. App. 3d 716 (finding that section 2 \u2014 1303 does not violate due process or equal protection). Accordingly, we find that they have waived this issue.\nWaiver aside, though we are tempted to simply state, in response to defendants\u2019 argument, that for the reasons set forth in Schultz, we find that section 2 \u2014 1303 does not violate the due process clause or the equal protection clause of the federal or Illinois constitution, we will indulge in a brief discussion of the constitutional arguments raised in Schultz, a case to which we adhere.\nIn Schultz, on remand from the defendant\u2019s unsuccessful appeal, the defendant was ordered to pay interest on the jury\u2019s verdict for the plaintiff. Defendant appealed, contending that section 2 \u2014 1303 of the Code of Civil Procedure was \u201cviolative of due process and equal protection under article I, sections 2 (due process and equal protection clauses) and 12 (access to courts clause) of the Illinois Constitution and the fourteenth amendment (due process and equal protection clauses) to the United States Constitution.\u201d Schultz, 362 Ill. App. 3d at 719. Concerning its due process contention, the defendant argued that section 2 \u2014 1303 contravened its access to the courts because the interest rate the statute set amounted to an arbitrary taking of property without a hearing and because the statute penalized a party for appealing. We declined to address the defendant\u2019s argument that the interest charge was an arbitrary taking because the defendant had offered no meaningful argument or citation in support of that contention. We found that the access to courts provision of the Illinois Constitution and the notion of access to courts embodied in the fourteenth, amendment of the United States Constitution focused on fees required to file or maintain a suit to vindicate one\u2019s rights. Section 2 \u2014 1303 did not concern such a fee. However, even if those provisions applied, because access to courts does not concern a fundamental due process right, and the award of interest serves the legislature\u2019s purpose of compensating a party whose money has been wrongfully withheld, the defendant\u2019s due process claim would fail.\nConcerning its equal protection contention, the defendant argued that the statute treated it, a judgment debtor, disparately from judgment creditors because, for example, if the defendant had paid the plaintiff the amount of the judgment but the judgment had been reversed on appeal, the plaintiff would not have been obliged to pay the defendant interest. The defendant additionally argued that the statute treated it differently from all other parties to civil litigations where money judgments were not involved because those parties would not be required to pay interest. We held that the rational basis test applied and that, therefore, the question was \u201cwhether section 2 \u2014 1303 places similarly situated persons into different classifications for reasons wholly unrelated to the purpose of the legislation.\u201d Schultz, 362 Ill. App. 3d at 728. We found that the defendant\u2019s argument regarding judgment creditors failed because, in its hypothetical, the plaintiff would become the judgment debtor under the statute and would therefore be obliged to pay interest. We declined to address the defendant\u2019s argument regarding other parties to civil litigations because the defendant had not argued that those parties were similarly situated to judgment debtors. Accordingly, we found that section 2 \u2014 1303 did not violate the Illinois or the United States Constitutions as alleged by the defendant.\nWe find the reasoning of Schultz persuasive and therefore find no merit to defendants\u2019 contention that section 2 \u2014 1303 of the Code of Civil Procedure violates constitutional notions of due process or equal protection.\nFor the above-stated reasons, we affirm the judgment of the trial court in part, reverse the judgment of the trial court regarding the loss of society award and remand this case so that the trial court may set a remittitur of the loss of society award.\nAffirmed in part and reversed in part; cause remanded.\nIn requesting a remittitur to $6 million, or three times the loss of money, goods and services award, defendants rely on the ratio commonly accepted in figuring punitive damages. See Heldenbrand, 211 Ill. App. 3d at 674. They also note that a $6 million loss of society award, coupled with the $2 million award for loss of money, goods and services, would put this case\u2019s award in line with awards arrived upon in other Illinois cases. See, e.g., Barry v. Owens-Corning Fiberglas Corp., 282 Ill. App. 3d 199 (1996) (upholding a $6.85 million wrongful death award); Holston v. Sisters of the Third Order of St. Francis, 165 Ill. 2d 150 (1995) (upholding a $6.2 million wrongful death award); Drews, 144 Ill. 2d 84 (upholding an $8.3 million wrongful death award).", "type": "majority", "author": "JUSTICE GREIMAN" }, { "text": "JUSTICE CAMPBELL,\nspecially concurring:\nI agree with the majority\u2019s disposition of the case, but write separately to clarify two minor points. Our supreme court has held that an award of damages is excessive \u201cif it falls outside the range of fair and reasonable compensation or results from passion or prejudice, or if it is so large that it shocks the judicial conscience.\u201d (Emphases added.) Richardson v. Chapman, 175 Ill. 2d 98, 113 (1997). Richardson states a disjunctive standard, any part of which may, if met, warrant the rejection of a verdict. Moreover, as the majority opinion notes, the clear weight of authority in Illinois declines to compare verdicts in this context. Velarde v. Illinois Central R.R. Co., 354 Ill. App. 3d 523, 542-43. But see House v. Stocker, 34 Ill. App. 3d 740, 751 (1975) (a comparative examination of verdicts in many cases involving similar injuries may be used for purpose of confirming the reliability of our own judicial conscience). The determination of the issue requires a case-by-case approach. For example, having authored the opinion in Barton v. Chicago & North Western Transportation Co., 325 Ill. App. 3d 1005 (2001), cited in the majority opinion, I note that the award was upheld because the defendants failed to provide an adequate record for review. Barton, 325 Ill. App. 3d at 1042-43.\nIn this case, even taking into account the evidence noted by the trial court in upholding the verdict, I conclude that the verdict falls outside the permissible range. The award does not shock my judicial conscience, but Illinois law does not require such to join the majority opinion.", "type": "concurrence", "author": "JUSTICE CAMPBELL," }, { "text": "JUSTICE MURPHY,\nspecially concurring:\nI agree with Justice Greiman\u2019s disposition of this case. However, I write separately concerning the remand of this case to the trial court for a hearing to determine the appropriate amount of remittitur. As the majority and separate concurring opinion both note, Illinois courts have consistently declined to compare damages awarded in different cases to determine if an award is excessive. Velarde v. Illinois Central R.R. Co., 354 Ill. App. 3d 523, 543 (2004). As noted in Justice Campbell\u2019s concurrence, this issue is best determined on a case-by-case approach.\nI agree that the award in this case is slightly excessive and that a hearing to set a remittitur amount better serves the interests of justice than a new trial or our setting an award. While I respect the guidance given by the majority, I would defer to the sound judgment of the trial court after the hearing rather than establishing an acceptable range. Great deference should be given to the findings and decision of the trial court in determining a proper award.", "type": "concurrence", "author": "JUSTICE MURPHY," } ], "attorneys": [ "Winston & Strawn LLP (James R. Thompson, Bruce R. Braun, and Pei Y. Chung, of counsel), and Donohue, Brown, Mathewson & Smyth (Karen Kies DeGrand and Mark H. Boyle, of counsel), both of Chicago, for appellants.", "Pfaff & Gill, Ltd., of Chicago (Bruce R. Pfaff and Michael T. Gill, of counsel), for appellee." ], "corrections": "", "head_matter": "CONNIE MIKOLAJCZYK, Indiv. and as Special Adm\u2019r of the Estate of James Mikolajczyk, Deceased, Plaintiff-Appellee, v. FORD MOTOR COMPANY et al., Defendants-Appellants (William D. Timberlake, Defendant).\nFirst District (3rd Division)\nNo. 1\u201405\u20143133\nOpinion filed June 13, 2007.\nWinston & Strawn LLP (James R. Thompson, Bruce R. Braun, and Pei Y. Chung, of counsel), and Donohue, Brown, Mathewson & Smyth (Karen Kies DeGrand and Mark H. Boyle, of counsel), both of Chicago, for appellants.\nPfaff & Gill, Ltd., of Chicago (Bruce R. Pfaff and Michael T. Gill, of counsel), for appellee." }, "file_name": "0646-01", "first_page_order": 664, "last_page_order": 697 }