We submit that there is no justification for the conclusion that the impact of defendant Siddiqui's ownership of a doughnut shop denied plaintiff a fair trial. ( Delany v. Badame (1971), 49 Ill.2d 168, 274 N.E.2d 353; Pagel v. Yates (1984), 128 Ill. App.3d 897, 902, 471 N.E.2d 946.) Moreover, even if objected to, the elicitation of this evidence would not be sufficient to support the grant of a new trial.
Evidence of a person's conduct on one occasion is irrelevant to proving that the same person likely engaged in the same conduct on a subsequent occasion. ( Pagel v. Yates (1984), 128 Ill. App.3d 897, 901-02, 471 N.E.2d 946, 950; see Stephens v. Collison (1928), 330 Ill. 48, 59-60, 161 N.E. 68, 73.) Given our holding that plaintiff's first and third statements concerning Swoboda's manner of operating motor vehicles were improperly admitted, it follows that the second statement also should not have been admitted. The single incident of possible careless or reckless driving on the part of Swoboda described in this statement is not probative as to his manner of driving on subsequent occasions.
Id. (quoting Oriental Health Spa v. City of Fort Wayne, 864 F.2d 486, 491 (7th Cir. 1988)). Bunge claims that this was harmful error, and it cites two Illinois cases for the proposition that reversal is required if undue emphasis is placed on irrelevant evidence of a party's financial condition, or if the jury's verdict is affected by it. Leggett v. Kumar, 212 Ill. App.3d 255, 156 Ill.Dec. 527, 541, 570 N.E.2d 1249, 1263 (1991); Pagel v. Yates, 128 Ill. App.3d 897, 84 Ill.Dec. 180, 185, 471 N.E.2d 946, 951 (1984). Aside from the fact that federal, not state, evidence law governs in a diversity case, Bachenski v. Malnati, 11 F.3d 1371, 1376 n. 6 (7th Cir. 1993); see also Fed.R.Evid. 1101, Bunge's primary obstacle is the fact that the parties had previously stipulated to the amount of compensatory damages.
Still other jurisdictions have held that damages for unborn animals are not recoverable as a matter of law. See Winingham v. Anheuser-Busch, Inc., 859 F. Supp. 1019, 1021-22 (N.D. Tex. 1994) (applying Texas law); Rosche v. Wayne Feed Div. Continental Grain Co., 447 N.W.2d 94, 96 (Wis.Ct.App. 1989); Pagel v. Yates, 471 N.E.2d 946, 952-53 (Ill.App.Ct. 1984); Nationwide Horse Carriers, Inc. v. Johston, 519 S.W.2d 163, 168-69 (Tex.App. 1974). Thus, what Insurance Company advocates is not the majority rule.
Citing out-of-state authority, Gordon contends that any damages for unborn animals are not recoverable because they are too speculative or uncertain. (Pagel v. Yates (1984) 128 Ill.App.3d 897, 904.) Long ago and on analogous issues, this court decided otherwise.
However, we do not decide whether Hillard's testimony was admissible or whether Mary waived these arguments because Mary failed to establish Hillard's testimony would have materially affected the outcome. See Pagel v. Yates, 128 Ill. App.3d 897, 900-01, 471 N.E.2d 946, 950 (1984); Herington v. Smith, 138 Ill. App.3d 28, 31, 485 N.E.2d 500, 502 (1985). Mary argues Hillard's testimony could have established the manufacturer, not Pinnacle, was responsible for Mary's injury.
Plaintiff points out that references to a party's financial status may constitute reversible error. ( Pagel v. Yates (1984), 128 Ill. App.3d 897, 471 N.E.2d 946; Panos v. McMahon (1974), 23 Ill. App.3d 776, 320 N.E.2d 185.) While plaintiff concedes that his physical activities after his heart attack were relevant to the trial proceedings, he claims that the prejudicial impact of these questions outweighed their probative value. He also argues that whether or not he owned a horse or airplane has no relationship to the question of whether the plaintiff could still engage in the activities in question.
Likewise, when only compensatory damages are recoverable, the financial condition of the parties is irrelevant and often prejudicial. Such evidence appeals to the sympathy of the jury for presumably the jury will favor those least able to bear the loss. If undue emphasis is placed on the irrelevant evidence, or if the jury's verdict is affected by it, then reversal is warranted. ( Pagel v. Yates (1984), 128 Ill. App.3d 897, 902, 471 N.E.2d 946, 951.) To warrant reversal the language utilized in a reference to defendant's financial condition must be reasonably understood to refer to the financial status of one of the parties and must result in prejudice to the complaining party.
Moreover, the jury was also provided a similar instruction. Because plaintiffs' counsel failed to object to the additional comments complained of, plaintiffs have waived review of these comments on appeal. ( Lebrecht v. Tuli (1985), 130 Ill. App.3d 457, 483-84, 473 N.E.2d 1322, 1340-41; Pagel v. Yates (1984), 128 Ill. App.3d 897, 902, 471 N.E.2d 946, 951.) Plaintiffs concede they failed to object to some of the arguments.
When only compensatory damages are at issue, the parties' financial conditions are irrelevant and often prejudicial. If undue emphasis is placed on such irrelevant evidence, or if the jury's verdict is affected by it, then reversal is required. Pagel v. Yates (1984), 128 Ill. App.3d 897, 902, 471 N.E.2d 946. • 16 Defendant notes that, on two occasions, testimony was allowed which suggested the impecunious nature of plaintiff's financial condition.