Opinion
No. 2-20-0307
04-26-2021
ISSAM RAFEA and JOULIANA BAAKAR, Plaintiffs-Appellants, v. VICTORIA A. BROWN, Defendant-Appellee.
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of De Kalb County. No. 15-L-83 Honorable William P. Brady and Bradley J. Waller, Judges, Presiding. JUSTICE ZENOFF delivered the judgment of the court.
Presiding Justice Bridges and Justice Birkett concurred in the judgment.
ORDER
¶ 1 Held: The judgment of the circuit court following a jury trial was affirmed where (1) the order denying the plaintiffs' pre-trial motion for partial summary judgment was not reviewable on appeal, (2) the plaintiffs' myriad challenges to trial rulings and other related issues lacked merit, and (3) the damages awarded by the jury were not incompatible with the jury's factual findings. ¶ 2 Plaintiffs, Issam Rafea and Jouliana Baakar, sued defendant, Victoria Brown, for injuries that they sustained in a motor vehicle accident. Brown eventually admitted negligence and acknowledged that both plaintiffs sustained some injuries. Brown denied, however, that Rafea's right shoulder impingement was related to the accident. Following a trial, a jury awarded $3000 to Rafea and $1000 to Baakar. Plaintiffs requested additur or, alternatively, a new trial on damages. The court denied that motion, and plaintiffs appeal. We affirm.
¶ 3 I. BACKGROUND
¶ 4 Due to the large number of issues that plaintiffs raise, we will provide an overview of the case here and then supplement the facts in the analysis section as they relate to each issue. ¶ 5 Rafea was originally from Syria, where he was an accomplished musician and orchestra conductor. He specialized in playing a stringed instrument called the oud. In 2013, Rafea immigrated to the United States and took a job in the music department at Northern Illinois University. ¶ 6 On April 21, 2014, Brown failed to yield the right-of-way to oncoming traffic as she attempted to make a left turn. She struck the front driver's side of Rafea's car as he was traveling approximately 30 miles per hour. Baakar was in the front passenger's seat of Rafea's car. She experienced neck pain from the accident that resolved in approximately two to three weeks. Rafea was transported by ambulance to a hospital, complaining of pain in his lower back and a headache. The diagnosis that day was "[s]trains and sprains." ¶ 7 Rafea saw his primary care physician, Dr. Bhagavatlal Morker, on May 13, 2014, for his injuries. According to a nurse's notes from that day, Rafea complained of pain in his lower back and his "bilateral shoulders." Morker's notes from that day, however, mentioned only that Rafea complained of pain in his back and his left shoulder. Dr. Morker diagnosed Rafea with a lumbar strain and a left shoulder strain. ¶ 8 Rafea followed up with Morker on May 27, 2014. A nurse's note from that day indicates that Rafea complained of pain in his back and "shoulders." Dr. Morker's notes, however, indicate that Rafea complained of pain in his lower back and his left shoulder. Dr. Morker again diagnosed Rafea with strains to his lumbar region and his left shoulder that were improving. ¶ 9 Approximately five months later, on October 22, 2014, Rafea sought treatment with Dr. Morker for right shoulder and neck pain. Dr. Morker referred Rafea to Dr. Michele Glasgow, an orthopedic surgeon. Dr. Glasgow diagnosed Rafea with a right shoulder impingement. Under Dr. Glasgow's care, from October 2014 to December 2015, Rafea engaged in a course of conservative treatment for his right shoulder, including physical therapy and cortisone injections. During that time, Rafea's condition sometimes improved and sometimes worsened. On December 1, 2015, Dr. Glasgow discussed the possibility of surgery with Rafea. Rafea declined surgery due to fears that complications from surgery might affect his ability to play the oud. He then stopped seeking treatment. ¶ 10 Plaintiffs sued Brown for negligence. In her original answer to the complaint, Brown denied that she was negligent. Plaintiffs filed a motion for partial summary judgment on the issue of liability. In her response to that motion, Brown admitted negligence but denied liability, as plaintiffs had not demonstrated in the motion that Brown's negligence was a proximate cause of their injuries. Brown also requested leave to amend her answer to the complaint to admit negligence. The trial court, Judge William P. Brady presiding, denied plaintiffs' motion for partial summary judgment and allowed Brown to amend her answer to the complaint to admit negligence. ¶ 11 The matter proceeded to a jury trial in 2019 before Judge Bradley J. Waller. The primary issues at trial were (1) whether the accident caused Rafea's right shoulder impingement and (2) if so, what amount of money would fairly compensate him for that injury. ¶ 12 Dr. Glasgow testified for plaintiffs via evidence deposition. She opined that Rafea's right shoulder impingement more likely than not was the result of the accident. According to Dr. Glasgow, an impingement injury can take up to five weeks to manifest after an accident, depending on the patient's level of activity. Because the nurse's notes from May 2014 mentioned Rafea complaining of bilateral shoulder pain, Dr. Glasgow believed that it would "seem very reasonable" to connect the right shoulder pain to the accident. Moreover, because Rafea experienced ups and downs during his treatment for his right shoulder, Dr. Glasgow believed that it was likely that Rafea would "have some degree of disability going forward." Dr. Glasgow had no opinion as to whether Rafea could benefit from surgery, as she had not treated him in 3 1/2 years at the time of her deposition. ¶ 13 Dr. Dwight McCoy, a chiropractor, also testified for plaintiffs. After examining Rafea on May 8, 2017, Dr. McCoy concluded that it was more likely than not that Rafea suffered a permanent right shoulder injury from the accident. Dr. McCoy testified that shoulder impingement and pain can develop over time after an accident, even in the absence of a direct impact to the shoulder. In Dr. McCoy's view, the references in the May 2014 nurse's notes to Rafea having bilateral shoulder pain was consistent with impingement syndrome developing. ¶ 14 Dr. John Scott Player, an orthopedic surgeon who no longer performed surgeries due to an eye condition, testified as a retained expert for Brown. After examining Rafea on December 7, 2016, Dr. Player concluded that Rafea had mild impingement syndrome of the right shoulder that did not warrant surgery. Dr. Player explained that a person with a "really bad" impingement would have terrible difficulty raising his arm above 90 degrees, whereas Rafea was able to raise his arm significantly higher than that. To that end, Dr. Player believed that Rafea had a "functionally normal shoulder." This meant that Rafea could perform all activities of daily living, including playing the oud. Dr. Player testified that he watched a YouTube video of Rafea playing the oud. According to Dr. Player, Rafea's elbow was down low when he was playing, which meant that his rotator cuff would not come into play. Dr. Player testified that, although pain from a shoulder impingement waxes and wanes, it "hurts like a son of a gun" when it becomes symptomatic. ¶ 15 Dr. Player opined that Rafea's impingement syndrome was not caused by the accident but was instead a congenital or idiopathic condition. The basis for Dr. Player's opinion on that point was that, if the impingement syndrome were caused by the accident, Rafea's persistent shoulder pain would have manifested within 36 hours of the accident. Although Dr. Player acknowledged that some May 2014 nursing notes referenced Rafea having bilateral shoulder pain, Rafea did not complain of consistent and persistent pain to the right shoulder until October 2014. Dr. Player testified that Rafea suffered only soft-tissue injuries to his lower back, neck, and left shoulder from the accident, which resolved by the end of May 2014. ¶ 16 Rafea testified regarding how his right shoulder impingement affected his career. Although the impingement did not prevent him from playing the oud, he explained that he could not play for as many hours at once and that he "deal[s] with the pain" that he has. On cross-examination, when Rafea was asked whether he feels pain when he plays the oud, he said that it depends on how many hours he plays. Defense counsel then impeached Rafea with his deposition, wherein he acknowledged that he does not feel pain when playing but that he feels "a little tension." ¶ 17 Rafea further testified that he had to cancel some oud concerts after the accident, though he did not specify how many or when. According to a resume that Rafea tendered to the defense in September 2016, Rafea played numerous concerts during 2015 and 2016. Nevertheless, Rafea testified that he did not believe that he could conduct an orchestra again due to his physical limitations. Rafea testified that he took a job as a driver for Uber or Lyft at some point after the accident (this must have been in 2014, as other evidence showed that Rafea earned income from driving a limo in 2014). He explained that he quit that job because his physical limitations made stretching to open doors "impossible." ¶ 18 Rafea further testified that he is careful about his movements and that his right shoulder can be "really painful." To that end, he mentioned limitations in swimming and picking up his son. He also described experiencing pain when sleeping on his right side or when putting his hand on his back or his head. Rafea claimed that he suffered mental anguish and distress from the accident. ¶ 19 David Gibson testified as an expert for plaintiffs about Rafea's expected loss of lifetime earnings due to his right shoulder impingement. However, Gibson expressed no opinion as to whether the accident caused that condition. In Gibson's opinion, the condition occasioned Rafea a lifetime loss of earnings of between $143,074 and $185,195. Gibson arrived at that conclusion by first looking to the average annual earnings over a lifetime of full-time taxi drivers/chauffeurs and musicians with a bachelor's degree in the Chicago area. After finding the median of those average annual earnings and then adjusting for Rafea's age and experience, Gibson determined that Rafea's pre-injury earning capacity was $39,761 as a taxi-driver/chauffeur and $51,467 as a musician. Although Rafea's right shoulder impingement did not preclude him from working as either a taxi driver or a musician, Gibson explained that persons with physical limitations generally are not as productive in the labor market and do not advance as quickly in their professions. Gibson determined that, post-injury, Rafea's annual earning capacities as a taxi driver/chauffeur and a musician were $37,744 and $48,856, respectively. Moreover, Gibson figured that, as of the time of his May 2017 report, if Rafea had no disability, he would be expected to work another 18.1 years. Considering his disability, however, Rafea would be expected to work only 15.3 more years. Combining all this information, Gibson calculated the present value of Rafea's lifetime loss of earning capacity as between $143,074 and $185,195. ¶ 20 Brown did not produce an expert to counter Gibson's opinions, but her counsel attempted to discredit Gibson's opinions through cross-examination. For example, on-cross examination, Gibson testified that he did not know what Rafea's salary was when he lived in Syria. Moreover, Gibson indicated that, to his knowledge, Rafea had never worked full-time as a musician in the United States. According to Gibson, Rafea earned $7722 in 2014 ($1387 as a musician and $6335 driving a limo), $5104 in 2015, $14,988 in 2016, and $9450 in 2017. ¶ 21 Plaintiffs did not introduce any medical bills into evidence, nor did plaintiffs' counsel seek to recover for any past or future medical expenses in his closing argument. The verdict form that was tendered to the jury read as follows with respect to Rafea's claim:
"As to the claim of Issam Rafea, we, the jury, find for Issam Rafea and against Victoria Brown. We asses [sic] the damage in the sum of $ __________, itemized as follows:The portion of the verdict form relating to Baakar's claim was as follows:
(1) The pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries of Issam Rafea: $ __________
(2) The loss of normal life experienced and reasonably certain to be experienced in the future by Issam Rafea: $ __________
(3) Emotional distress experienced and reasonably certain to be experienced in the future: $ __________
(4) The value of earnings lost and the present cash value of earnings reasonably certain to be lost in the future by Issam Rafea: $ __________
Total Damages for Isaam [sic] Rafea $ __________"
"As to the claim of Jouliana Baakar, we, the jury, find for Jouliana Baakar and against Victoria Brown. We asses [sic] the damage in the sum of $ __________, itemized as follows:
(1) The pain and suffering experienced as a result of the injuries of Juliana Baakar: $ __________In his closing argument, plaintiffs' counsel requested an award of "not less than $1.5 million," though he requested itemized damages adding up to more than that amount. Defense counsel, on the other hand, asked the jury to award Rafea $3000 and Baakar $1500. ¶ 22 The jury awarded Rafea $3000 ($1000 for pain and suffering, $1000 for loss of a normal life, $500 for emotional distress, and $500 for lost earnings). The jury awarded Baakar $1000 ($500 for pain and suffering, $0 for loss of a normal life, and $500 for emotional distress). In their postjudgment motion, plaintiffs requested additur or, alternatively, a new trial on damages. The court denied that motion, and plaintiffs timely appealed.
(2) The loss of normal life experienced by Juliana Baakar: $ __________
(3) Emotional distress experienced by Jouliana Baakar: $ __________
Total Damages for Jouliana Baakar $ __________"
¶ 23 II. ANALYSIS
¶ 24 A. Denial of Motion for Partial Summary Judgment
¶ 25 Plaintiffs first argue that the trial court had no discretion to deny their "confessed" motion for partial summary judgment, thus precluding plaintiffs from instructing the jury with their preferred instruction. See Illinois Pattern Jury Instructions (IPI), Civil, No. 1.02 ("The Court has found the defendant[s] [(insert name of defendant(s))], [is] [was] [were] [negligent] [liable] [other finding], so that is not an issue you will need to decide."). Plaintiffs assert that the court's erroneous ruling also allowed Brown to "feign acceptance of responsibility for the crash throughout trial" despite having initially denied negligence. According to plaintiffs, a defendant must admit negligence before the plaintiff moves for summary judgment on liability. Underlying plaintiffs' argument is the assumption that negligence, which Brown admitted in response to plaintiffs' motion for partial summary judgment, is synonymous with liability. ¶ 26 Brown responds that, in their motion for partial summary judgment, plaintiffs failed to demonstrate proximate causation and an injury, which would be required to prove liability. Although plaintiffs attempted to demonstrate those missing elements in their reply brief in support of their motion for partial summary judgment, Brown contends that the trial court appropriately recognized that the issue of which of Rafea's injuries Brown was liable for was in dispute. ¶ 27 The issue of summary judgment is not properly before us. The parties overlook that, [a]s a general rule, when a motion for summary judgment is denied and the case proceeds to trial, the denial of summary judgment is not reviewable on appeal because the result of any error is merged into the judgment entered at trial." Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 355 (2002). The parties do not contend that any exception to this rule applies. ¶ 28 Even if the issue were properly before us, the premise of plaintiffs' argument—that the trial court was required to grant the motion for partial summary judgment instead of allowing Brown to amend her pleadings to admit negligence—is incorrect. None of the cases cited by plaintiffs have a similar procedural posture. More on point is section 2-1005(g) of the Code of Civil Procedure (Code), which provides that, "[b]efore or after the entry of a summary judgment, the court shall permit pleadings to be amended upon just and reasonable terms." 735 ILCS 5/2-1005(g) (West 2018); see also 735 ILCS 5/2-616(a) (West 2018) ("At any time before final judgment amendments may be allowed on just and reasonable terms ***."). A trial court's decision to allow a party to amend its pleadings is reviewed for an abuse of discretion. Loyola Academy v. S & S Roof Maintenance, Inc., 146 Ill. 2d 263, 273-74 (1992). The factors to consider are: "(1) whether the proposed amendment would cure the defective pleading; (2) whether other parties would sustain prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed amendment is timely; and (4) whether previous opportunities to amend the pleading could be identified." Loyola Academy, 146 Ill. 2d at 273. ¶ 29 Plaintiffs do not address any of the Loyola factors. The closest that plaintiffs come is to complain, generally, that the trial court should not have allowed Brown to deny negligence until plaintiffs filed a dispositive motion. Any grievance about the timeliness of Brown's acknowledgment of negligence, however, is undermined by the fact that Brown moved to amend her answer to the complaint almost five months before trial. Moreover, although plaintiffs requested a judicial determination of Brown's liability, there remained genuine issues of fact as to which of Rafea's claimed injuries were proximately caused by the accident. Under these circumstances, even if the issue were properly before us, there would be no basis to disturb the trial court's decision to allow Brown to admit negligence instead of granting plaintiffs' motion for partial summary judgment on the issue of liability.
¶ 30 B. Video of Unrelated Car Crash as Demonstrative Evidence
¶ 31 Plaintiffs next argue that the trial court abused its discretion when it prevented them from using Exhibit 56 as demonstrative evidence. Brown responds that the court properly excluded this exhibit because it was confusing and irrelevant. ¶ 32 Although this exhibit is not included in the record on appeal, the in-court colloquy among the attorneys and the court indicates that the video depicted an unrelated T-bone crash. It is not apparent who produced the video or when it was produced. Unlike the accident in the present case, the video depicted a collision involving the passenger's side of a car. Plaintiffs intended to use the video during the testimony of Dennis Johnson, a lay witness who observed the accident between Brown and plaintiffs. Specifically, plaintiffs wanted to use the video to show the types of energy and forces that are involved in a low-speed T-bone crash. Sustaining defense counsel's objection, the court prohibited use of the video, reasoning that it was not "on all fours" with the accident here and would not assist the jury. In ruling on plaintiffs' postjudgment motion, the court added that it did not want to confuse the jury with this exhibit. ¶ 33 We review the trial court's decision regarding the admissibility of evidence for an abuse of discretion. Sharbono v. Hilborn, 2014 IL App (3d) 120597, ¶ 29. A court abuses its discretion only where its ruling is arbitrary, fanciful, unreasonable, or if no reasonable person would take the view adopted by the court. Sharbono, 2014 IL App (3d) 120597, ¶ 29. ¶ 34 "Demonstrative evidence has no probative value in and of itself and is merely admitted or used as a visual aid to the trier of fact." Sharbono, 2014 IL App (3d) 120597, ¶ 30. Although courts generally look favorably on demonstrative evidence, parties should not be allowed to use such evidence to "giv[e] a dramatic effect or undue or misleading emphasis to some issue, at the expense of others." Sharbono, 2014 IL App (3d) 120597, ¶ 30. In considering whether to allow demonstrative evidence, a court should consider both the relevance and fairness of the evidence. Sharbono, 2014 IL App (3d) 120597, ¶ 31. "As for relevancy, for demonstrative evidence to be admissible, it must actually be used to illustrate or explain the verbal testimony of a witness as to a matter that is relevant in the case in question." Sharbono, 2014 IL App (3d) 120597, ¶ 31. With respect to fairness, even if the evidence is relevant, it may be excluded if " 'its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.' " Sharbono, 2014 IL App (3d) 120597, ¶ 31 (quoting Ill. R. Evid. 403 (eff. Jan. 1, 2011)). ¶ 35 The trial court acted well within its discretion by barring use of the video. Some of the cases that plaintiffs cite where courts approved of demonstrative evidence involved complex medical procedures and concepts that were beyond the understanding of the average juror. See Dillon v. Evanston Hospital, 199 Ill. 2d 483, 493-94 (2002); Glassman v. St. Joseph Hospital, 259 Ill. App. 3d 730, 756 (1994). Here, by contrast, the average juror would understand what a car crash looks like. As the trial court also recognized, the proposed video likely would have misled the jury. Unlike the collision depicted in the video, the accident between Brown and plaintiffs was not a true T-bone collision and it involved a collision on the driver's side. The video was irrelevant. Even if it were relevant, considerations of fairness justified its exclusion. ¶ 36 Plaintiffs' specific contentions of error are baseless. Plaintiffs assert that the trial court improperly required them to "meet the foundation for admitting substantive evidence." The record confirms that the trial court rejected the proposed video based on the proper principles. Plaintiffs also maintain that Peach v. McGovern, 2019 IL 123156, justified their use of the video. Peach, however, did not involve demonstrative evidence. Peach held that pictures of the vehicles involved in a car accident may be admissible, without expert testimony, in a trial involving that same accident. Peach, 2019 IL 123156, ¶ 47. Plaintiffs read Peach far too broadly by suggesting that it allows parties to show the jury unrelated car crashes to assist a lay witness's testimony about the physical forces involved in a crash. ¶ 37 Plaintiffs further assert that a court is permitted to take judicial notice of the laws of physics. Plaintiffs do not explain, however, why the laws of physics would have helped the jury understand Johnson's testimony. Plaintiffs also suggest that the video was proper demonstrative evidence precisely because it did not depict a collision that was substantially similar to the one at bar. Plaintiffs' logic is faulty, because a collision that is dissimilar to the one that caused their injuries is inherently irrelevant and could only confuse the jury. Finally, in their reply brief, plaintiffs criticize the trial court for not reviewing the proposed video before excluding its use at trial. Aside from being forfeited (see Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020) (new arguments cannot be raised in a reply brief)), the attorneys' descriptions of the video provided the court with enough information to determine that the video was patently irrelevant.
¶ 38 C. Voir Dire
¶ 39 Plaintiffs next argue that the trial court improperly precluded their counsel's voir dire as to (1) any potential prejudice regarding Rafea's Syrian background, (2) whether plaintiffs' absence from trial would impact the jurors' decisions, and (3) whether lawsuits raise the costs of goods or services. In plaintiffs' view, the court erred in precluding their counsel from "making pertinent inquiries into substantial areas for bias." Brown responds that the court acted within its discretion because plaintiffs' counsel's questions were improper. ¶ 40 Voir dire is intended to assure that the jurors who are selected to serve are free from bias or prejudice. Rub v. Consolidated Rail Corp., 331 Ill. App. 3d 692, 705 (2002). To that end, the trial court should allow sufficient, appropriate inquiries of prospective jurors designed to uncover their biases and prejudices. Friedman v. Park District of Highland Park, 151 Ill. App. 3d 374, 382 (1986); see also Ill. S. Ct. R. 234 (eff. May 1, 1997) (after the court questions potential jurors, the court may permit the parties to ask additional questions, as the court deems proper). Nevertheless, the court should not allow questions that seek to indoctrinate or influence the jury. Friedman, 151 Ill. App. 3d at 382. The court has discretion in determining which questions are posed to the jury. Friedman, 151 Ill. App. 3d at 382. The court may abuse its discretion where it denies counsel the opportunity to ask questions that "directly impact on a specific bias or prejudice." Friedman, 151 Ill. App. 3d at 382. Even if a question is not objectionable, however, a court does not abuse its discretion by limiting inquiry into matters that have been adequately covered by other questions. Limer v. Casassa, 273 Ill. App. 3d 300, 303 (1995). ¶ 41 We will address plaintiffs' three contentions separately. As we will explain, the trial court did not abuse its discretion by sustaining defense counsel's objections during voir dire.
¶ 42 1. Rafea's Syrian Background
¶ 43 Prior to trial, Brown filed a motion in limine seeking to bar, on relevance grounds, any mention of the fact that Rafea was a Syrian refugee seeking political asylum in the United States. At the hearing on this motion, plaintiffs' counsel said that he had no problem avoiding references to Rafea being a political asylum refugee. However, plaintiffs' counsel wanted to make sure during voir dire that the jury understood Rafea's background as a legal immigrant from Syria. The court ruled that it had no problem with plaintiffs' counsel "getting into" the fact that Rafea was from Syria and that he came to the United States to work at Northern Illinois University. Nevertheless, the court indicated that the attorneys should stay away from terms such as "refugee," "asylum," and "political." The court also agreed when defense counsel interjected that the attorneys should avoid mentioning whether Rafea was a legal immigrant. Plaintiffs' counsel then questioned why he could not mention that Rafea was a legal immigrant. The court responded that it did not want to "open that door." The court added that the jury would likely infer that Rafea was a legal immigrant based on his employment at Northern Illinois University. ¶ 44 During voir dire, plaintiffs' counsel said the following to prospective jurors: "So you're going to hear Mr. Rafea is a musician, came here at the behest of NIU. He's originally from Syria." This drew an objection from defense counsel. At a sidebar, the court explained:
"I'm not going to allow that. I'll allow it in opening but talk about fair and impartial, I mean, I don't want to get into the case at this point. I don't think it's appropriate to get into the case. I don't think it's appropriate to have that type of dialogue, so let's just confine it to fair and impartial, Okay?"Plaintiffs' counsel responded, "All right." Plaintiffs' counsel did not inform the court that he wanted to question the prospective jurors regarding their potential biases as to Rafea's nationality, nor did counsel thereafter attempt to question the jurors in that manner. ¶ 45 In the course of denying plaintiffs' postjudgment motion, the court noted that plaintiffs' counsel failed to make "an offer of proof that would have set forth the additional questions" relating to the issue of the jurors' potential prejudice against Rafea. ¶ 46 Against this background, we hold that the trial court did not abuse its discretion in sustaining defense counsel's objection to plaintiffs' counsel's dialogue quoted above. On appeal, plaintiffs insist that the jurors' potential biases and prejudices based on Rafea's nationality were fair game. As defendants note, however, it seems that the trial court left the door open for plaintiffs' counsel to ask questions regarding the prospective jurors' ability to remain fair and impartial, yet plaintiffs' counsel never asked the jurors whether they were biased or prejudiced against persons from Syria. Plaintiffs' counsel likewise never told the court that he wanted to question the jurors about their biases against Syrians. Plaintiffs cannot fault the trial court for failing to read their counsel's mind as to where he was going with a dialogue that seemed more like an opening statement than a direct question.
¶ 47 2. Plaintiffs' Absence From Trial
¶ 48 Prior to trial, Brown issued a notice, pursuant to Illinois Supreme Court Rule 237(b) (July 1, 2005), requesting both plaintiffs to appear at the commencement of trial. Plaintiffs did not appear in court for jury selection. During voir dire, plaintiffs' counsel said the following to prospective jurors:
"You know this is a civil case instead of a criminal case. My clients are not going to be present today. You'll hear from them tomorrow. The fact that you may have to be
here all day, is there anything about that that you would hold against my clients that they're not here?"Defense counsel objected. Counsel and the court had the following colloquy at the bench:
"[DEFENSE COUNSEL]: I don't think he should be able to give an explanation. They can figure that out for themselves, and I don't want him—you know, this is a frickin' jury trial and they don't show up and they don't explain to them.Both plaintiffs subsequently appeared at trial and testified. ¶ 49 In denying plaintiffs' postjudgment motion, the court explained its rationale for not allowing inquiry during voir dire regarding plaintiffs' absence from trial. According to the court, it did not want to open the door for Brown to seek sanctions against plaintiffs for failing to appear at trial in violation of Rule 237(b). In that sense, the court believed that its decision to prevent inquiry into plaintiffs' absence "made for a clean trial" and benefitted plaintiffs by avoiding the issue of sanctions. ¶ 50 In light of the court's explanation when it ruled on plaintiffs' postjudgment motion, we cannot say that the court's decision amounted to an abuse of discretion. Plaintiffs cite case law in their reply brief establishing that a trial court has discretion whether to require litigants to appear at trial. See, e.g., O'Brien v. Walker, 49 Ill. App. 3d 940, 947 (1977). Be that as it may, the court here was justified in restricting plaintiffs' counsel's inquiry into the topic of plaintiffs' absence, as the court meant to discourage Brown from seeking sanctions against plaintiffs. Plaintiffs' assertion that the court's ruling somehow violated their constitutional rights is forfeited for failure to develop a cogent argument supported by legal authority. See Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151, ¶ 12 ("Mere contentions, without argument or citation to authority, do not merit consideration on appeal.").
THE COURT: [Plaintiffs' counsel]?
[PLAINTIFFS' COUNSEL]: Yeah, Judge, usually the judge's instructions say that a person doesn't have to be here. I didn't hear that given so—
[DEFENSE COUNSEL]: For their trial where they're asking for $300,000. I don't think they should approach that at all and he shouldn't be able to say anything. Let the jurors decide if they care about that, if they care about showing up.
[PLAINTIFFS' COUNSEL]: They have not been informed that in a civil case the parties don't have to be here.
THE COURT: I'm not going to allow you to get into it at this point."
¶ 51 3. Impact of Lawsuits on the Cost of Goods and Services
¶ 52 During voir dire, plaintiffs' counsel asked potential jurors, without objection from defense counsel, whether they thought that "our economy is hurt by lawsuits." Plaintiffs' counsel also asked potential jurors, without objection, whether they believed that people in our society generally are "too ready to sue" and whether that "hurts our economy." One potential juror responded: "In a roundabout way through say look at the cost of insurance and the cost of health care, the cost of medications, yeah, it affects us in that manner, I believe that." Another potential juror responded: "I've always been a believer in tort reform." A third potential juror responded: "Yes, in a roundabout way I do believe it affects everything." Plaintiffs' counsel followed up on those responses by saying, "To kind of piggyback off that, then, a nice segue by here in the front was who here thinks it [lawsuits] raises the cost of goods and services[?]" Defense counsel objected on unspecified grounds, and the court sustained the objection. ¶ 53 Later during voir dire, plaintiffs' counsel continued to ask prospective jurors, without objection, numerous questions attempting to discover any biases that could impact plaintiffs' damage award. For example, plaintiffs' counsel asked potential jurors whether their beliefs prevented them from awarding damages for pain and suffering, emotional distress, or loss of a normal life. Plaintiffs' counsel also questioned potential jurors as to whether people were "too ready to sue in our society," whether such willingness to sue "hurts our economy," and whether the jurors' beliefs would "have any bearing" on their willingness to award a money judgment in this case. Plaintiffs' counsel further inquired of prospective jurors whether there were any caps on the amount of damages that they would be willing to award, such as $1 million, $2 million, or $3 million. Plaintiffs' counsel also asked whether potential jurors had ever been in a position to sue and did not sue. ¶ 54 In denying plaintiffs' postjudgment motion, the court noted that it gave plaintiffs' counsel "great latitude" during voir dire. The court did not see any possibility that the jurors who were selected had any prejudice. ¶ 55 In arguing that the court improperly limited their counsel's questioning as to whether lawsuits increase the cost of goods and services, plaintiffs focus on events that happened after voir dire concluded. Specifically, plaintiffs assert that defense counsel "purposefully and unabashedly" elicited testimony from Dr. Player that he quit performing surgeries due to the increased cost of malpractice insurance. Although we will evaluate in the next section whether Dr. Player's testimony on this point compels a new trial, the trial court, of course, had no way of knowing during voir dire that Dr. Player would mention malpractice insurance costs in his testimony. ¶ 56 In light of the information that was available to the trial court during voir dire, the court did not abuse its discretion by sustaining Brown's objection to the question of whether the prospective jurors believed that lawsuits raise the cost of goods and services. The parties dispute whether this question was an improper attempt to indoctrinate the jury. Irrespective of whether this question was improper indoctrination, we are mindful that parties are "entitled to a fair and impartial jury," but "[t]hey are not entitled to have an unlimited number of questions asked of the jurors." Limer, 273 Ill. App. 3d at 303. A trial court does not abuse its discretion by refusing to allow questions on matters that were adequately covered by other questions. See Gasiorowski v. Homer, 47 Ill. App. 3d 989, 991-92 (1977) (although the court should allow counsel to probe important areas of potential biases and prejudices, once the court allows counsel a fair opportunity to do so, the court has "discretion to deny further questioning on the matter"). Here, the court allowed plaintiffs' counsel substantial leeway in probing the prospective jurors' biases against lawsuits, persons who bring lawsuits, and large damage awards. ¶ 57 For these reasons, the trial court did not err in restricting plaintiffs' counsel's inquiries during voir dire.
¶ 58 D. Alleged Errors Connected to Dr. Player's Testimony
¶ 59 Plaintiffs next argue that the trial court improperly permitted testimony from Dr. Player "regarding his disability and his motive for stopping medical practice due to increased insurance costs." Plaintiffs' arguments raise two distinct issues, which we will address separately for purposes of clarity.
¶ 60 1. Dr. Player's Medical Condition
¶ 61 Prior to trial, plaintiffs filed motion in limine 29, which sought to bar Dr. Player from testifying that he had a disability or otherwise mentioning how his health forced him to stop performing orthopedic surgeries. Plaintiffs argued that such testimony was irrelevant and unfairly prejudicial because it would garner sympathy for Dr. Player. At the hearing on this motion, defense counsel indicated that he expected plaintiffs' counsel to argue to the jury that Dr. Player did not perform surgeries and was merely a "hired gun" for insurance companies. In defense counsel's view, the jury should know that Dr. Player continued to see patients as part of his medical practice, even though he no longer could perform surgeries due to a medical condition. Replying to defense counsel's arguments, plaintiffs' counsel emphasized that insurance companies pay Dr. Player as a litigation consultant. ¶ 62 The trial court denied plaintiffs' motion in limine 29. The court believed that Dr. Player's medical condition was simply part of his background that the jury was entitled to know about ("Well, it's who he is, it's part of who he is."). The court did not believe that such testimony would be unduly prejudicial or sympathetic, and the court noted that plaintiffs could cross-examine Dr. Player about his biases. ¶ 63 On direct examination by defense counsel, while explaining his background, Dr. Player related that he performed between 250 and 300 surgeries a year up until 2006. When defense counsel asked Dr. Player what happened in 2006, he responded:
"I had developed a problem with my left eye called retinal fibrosis. It got to the point where I was having trouble seeing in surgery, especially small field surgery if you're operating in a small hole, and unfortunately you operate in small holes a lot. My ophthalmologist advised that I should voluntarily relinquish my surgical privileges, so I did."Plaintiffs' counsel did not object to this testimony. ¶ 64 In denying plaintiffs' postjudgment motion, the court explained that Dr. Player's testimony about his eye condition did not prejudice the jury or elicit sympathy. The court also noted that plaintiffs failed to preserve the issue by objecting to the testimony at trial. ¶ 65 Plaintiffs frame their argument on appeal as a challenge to the court's decision to deny their motion in limine 29. As Brown notes, however, plaintiffs forfeited their right to appeal this issue by failing to lodge a contemporaneous objection at trial. See Jones v. Chicago Osteopathic Hospital, 316 Ill. App. 3d 1121, 1132 (2000) (the denial of a motion in limine does not preserve an issue for review, and the "[f]ailure to object to the evidence at trial forfeits the issue on appeal."). ¶ 66 Forfeiture, however, is a limitation on the parties, not the appellate court. Jill Knowles Enterprises, Inc. v. Dunkin, 2017 IL App (2d) 160811, ¶ 22. Forfeiture aside, the trial court did not abuse its discretion in allowing this testimony. See Alm v. Loyola University Medical Center, 373 Ill. App. 3d 1, 4 (2007) ("Our standard of review of a trial court's decision to grant or deny a motion in limine is the abuse of discretion standard."). The court reasonably determined that the evidence was more probative than prejudicial, as it was part of Dr. Player's general background information as a physician. We fail to see how this testimony would have invoked an emotional or sympathetic response from the jury. Plaintiffs assert that defense counsel acknowledged the irrelevance of this testimony in his closing argument when he said that "[t]his isn't a surgery case." But the portion of the closing argument that plaintiffs cite cannot fairly be read as a concession of any kind about the relevance of the subject testimony. Defense counsel was merely making the point that Dr. Glasgow was not more qualified than Dr. Player to render opinions in this case just because Dr. Glasgow still performs surgeries. ¶ 67 Relying on Kirkpatrick v. United Federation of Postal Clerk's Benefit Ass'n, 52 Ill. App. 2d 457 (1964), plaintiffs also contend that Dr. Player's testimony was improper and lacked foundation. In plaintiffs' words, "a party cannot make a self-serving statement for the purposes of providing evidence for himself," and "[a] party cannot legally declare themselves [sic] disabled." Putting aside that Kirkpatrick bears no factual resemblance to the case at bar, plaintiffs' arguments are unconvincing because Dr. Player was not a party to the litigation, there was nothing self-serving about his testimony, and he did not testify that he was "disabled."
¶ 68 2. Rising Cost of Malpractice Insurance
¶ 69 On direct examination by defense counsel, while explaining his background, Dr. Player testified that he performed back surgeries until about 1996. Defense counsel followed up by asking: "What happened then?" Dr. Player responded: "In 1996 the malpractice insurance premiums went crazy—." Plaintiff's counsel objected and moved to strike the testimony. The court sustained the objection, struck the testimony, and directed the jury not to consider this question or Dr. Player's answer. In denying plaintiffs' postjudgment motion, the court determined that plaintiffs' counsel's immediate objection and the court's action in sustaining the objection "[took] care of" that issue. ¶ 70 Plaintiffs argue that sustaining the objection and directing the jury to disregard the testimony did not cure the prejudice. According to plaintiffs, Dr. Player's comment violated the court's ruling on one of plaintiffs' motions in limine. Plaintiffs also maintain that this testimony was "clearly intended to cause jurors to relate the costs of insurance and litigation's effect (i.e., malpractice) on the costs of goods and services." Plaintiffs assert that defense counsel "drove home this point" during his closing argument when he mentioned "society and litigation." Plaintiffs analogize the case to Fitzgerald v. Brown, 86 Ill. App. 2d 289 (1967). ¶ 71 Brown responds that Dr. Player's reference to insurance was in passing, violated no motion in limine, and did not prejudice plaintiffs. Brown proposes that Fitzgerald is distinguishable and that the court cured any prejudice by sustaining plaintiffs' counsel's objection. ¶ 72 As the parties recognize, sustaining a timely objection often, but does not always, remediate the effect of improper evidence or commentary by counsel. Compare Lebrecht v. Tuli, 130 Ill. App. 3d 457, 473 (1985) ("Generally, prompt action by the trial court cures any error which occurs in admitting testimony.") with Konewko v. Advocate Health & Hospitals Corp., 2020 IL App (2d) 190684, ¶ 83 ("However, sustaining the objection might be insufficient to cure the prejudice in certain instances, such as when the comment was repeated or made in violation of prior court orders, including orders on motions in limine."). ¶ 73 We hold that the trial court's response to Dr. Player's remark was appropriate and cured any error. The problem with mentioning insurance at trial typically is that a party's insurance or lack thereof is irrelevant and may improperly influence the verdict. See Rush v. Hamdy, 255 Ill. App. 3d 352, 361 (1993); Ill. R. Evid. 411 (eff. Jan. 1, 2011) (evidence of liability insurance is not admissible as to the issue of whether a person acted negligently, but such evidence may be admitted for other purposes). Here, Dr. Player did not mention whether any of the parties had insurance. Instead, Dr. Player made a general reference to his own medical malpractice insurance premiums having increased twenty-five years ago. He did not say that such premiums increased because of litigation. This case does not involve allegations of medical malpractice, so it seems highly unlikely that Dr. Player's remarks would have encouraged the jury to think about the effect that their verdict might have on the cost of insurance or other goods and services. ¶ 74 Moreover, contrary to what plaintiffs argue, the jury likely would not have interpreted defense counsel's remarks in closing argument as referencing the cost of insurance or other goods and services. In the context of arguing that plaintiffs' request for a large award was not justified by the evidence, defense counsel said: "I'm not going to get into society and litigation but come on, that's the kind of request that makes everybody goes [sic] wow, $1.5 million for this?" Although it is not apparent exactly what counsel meant by "society and litigation," it seems unlikely that this comment would have made the jury think about the connection between litigation and the general cost of goods and services. ¶ 75 Additionally, Dr. Player's testimony did not violate the trial court's ruling on plaintiffs' motion in limine 5(d), which sought to bar "[a]rgument that insurance rates or the cost of goods and services will rise if jury [sic] awards damages to Plaintiffs." Dr. Player's brief reference to his own medical malpractice insurance premiums did not violate the ruling on this motion in limine. ¶ 76 Finally, plaintiffs' reliance on Fitzgerald is misplaced. The plaintiffs' attorney in Fitzgerald made "calculated and repeated attempts," for the "obvious purpose of prejudicial influence," to highlight to the jury that the defendant had insurance. Fitzgerald, 86 Ill. App. 2d at 293. Here, by contrast, Dr. Player's comment about malpractice insurance premiums was isolated and was not calculated to, or likely to, influence the jury's verdict. ¶ 77 For these reasons, any error in Dr. Player's reference to his rising malpractice insurance premiums was cured by the court's action in sustaining the objection and directing the jury not to consider this testimony.
¶ 78 E. Defense Counsel's Closing Argument
¶ 79 Plaintiffs next claim that defense counsel made numerous improper comments in closing argument. Plaintiffs contend that defense counsel (1) violated the trial court's rulings on certain motions in limine, (2) improperly vouched for Dr. Player's honesty, (3) used inflammatory language, and (4) improperly compared Rafea's injuries with Baakar's injuries. ¶ 80 Brown responds that plaintiffs forfeited their argument by failing to timely object to any of the comments at issue. Brown maintains that the comments were proper and that plaintiffs do not meet the standard for obtaining a new trial based on unpreserved errors in closing argument. ¶ 81 As Brown correctly notes, plaintiffs forfeited their arguments by failing to raise any objections during defense counsel's closing argument. In Belfield v. Coop, 8 Ill. 2d 293 (1956), our supreme court outlined the limited circumstances for overlooking such forfeiture:
"If prejudicial arguments are made without objection of counsel or interference of the trial court to the extent that the parties litigant cannot receive a fair trial and the judicial process stand without deterioration, then upon review this court may consider such assignments of error, even though no objection was made and no ruling made or preserved thereon." Belfield, 8 Ill. 2d at 313.The use of the Belfield exception to the forfeiture doctrine is " 'exceedingly rare.' " Matthews v. Avalon Petroleum Co., 375 Ill. App. 3d 1, 8 (2007) (quoting Jones v. Rallos, 373 Ill. App. 3d 439, 454 (2006)). Indeed, we must strictly apply the forfeiture "unless the prejudicial error involves flagrant misconduct or behavior so inflammatory that the jury verdict is a product of biased passion, rather than an impartial consideration of the evidence." Gillespie v. Chrysler Motors Corp., 135 Ill. 2d 363, 375-76 (1990). In other words, the prejudicial error must be "so egregious that it deprived the complaining party of a fair trial and substantially impaired the integrity of the judicial process itself." (Emphasis in original.) Gillespie, 135 Ill. 2d at 377. Examples of situations where it might be appropriate to apply the Belfield exception include trials involving "blatant mischaracterizations of fact, character assassination, or base appeals to emotion and prejudice." Gillespie, 135 Ill. 2d at 377. ¶ 82 Plaintiffs do not directly argue that the purported errors require reversal under the Belfield exception. Furthermore, in our view, defense counsel's entire closing argument was within the bounds of acceptable advocacy and responded appropriately to plaintiffs' counsel's closing argument. Defense counsel's characterization of plaintiffs' request for $1.5 million in damages as "ridiculous" or "way off the charts," for example, was permissible argument. See People v. Robinson, 391 Ill. App. 3d 822, 841 (2009) ("Indeed, numerous cases have upheld the use of the term 'ridiculous' in closing arguments as acceptable commentary on the defense theory or the defendant's testimony."). Plaintiffs' other contentions are simply not supported by the record, as defense counsel never personally vouched for Dr. Player's honesty or compared the two plaintiffs' respective injuries in a manner that would be improper under the case law that plaintiffs cite. Defense counsel's closing argument did not come close to meeting the standard to implicate the Belfield exception to the forfeiture doctrine. ¶ 83 The record likewise does not support plaintiffs' assertion that defense counsel violated the court's rulings on plaintiffs' motions in limine 5(a)-(e), 8, 9, or 26. Motion in limine 5(a) addressed opening statements, not closing arguments, so that motion is not relevant. Plaintiffs voluntarily withdrew motion in limine 5(b), and plaintiffs never filed a motion in limine 5(e), so defense counsel obviously did not violate any rulings on those motions. The other motions in limine that plaintiffs mention sought to preclude defense counsel from making specific arguments, including that (1) Brown was innocent until proven guilty, (2) insurance rates or the cost of goods and services will rise if the jury awarded damages to plaintiffs, (3) the case was only about money, (4) plaintiffs were trying to win the lottery with this lawsuit, (5) Brown would be financially impacted by any judgment, (6) the damages that plaintiffs requested would create generational wealth, and (7) plaintiffs could live off of a lower damages award by investing their money. Defense counsel never made any of those arguments.
¶ 84 F. Cross-Examination of Brown
¶ 85 Plaintiffs next argue that the trial court improperly precluded their counsel from cross-examining Brown with the fact that she denied negligence in her initial answer to the complaint. ¶ 86 On direct examination by defense counsel, Brown testified, inter alia, that she apologized to Rafea immediately after the accident and asked if he was okay. As his first question on cross-examination, plaintiffs' counsel asked Brown: "I'll be brief. On the date of—well, you initially denied you were at fault for this crash; correct?" Defense counsel objected without stating a basis, and the court sustained the objection. Plaintiffs' counsel moved on with his cross-examination without making an offer of proof. In denying plaintiffs' postjudgment motion, the court explained that plaintiffs' counsel's question was improper impeachment, as Brown was not presented with a prior inconsistent statement. The court also noted that plaintiffs' counsel failed to make an offer of proof on this issue. ¶ 87 On appeal, plaintiffs contend that Brown's denial of negligence in her initial answer to the complaint was admissible as a prior inconsistent statement. Plaintiffs argue that, because defense counsel told the jury that Brown accepted responsibility for the accident, Brown would have appeared less credible and likeable to the jury had the jurors known that she initially denied negligence. Brown responds that the trial court properly sustained defense counsel's objection to plaintiffs' counsel's question due to lack of foundation. Furthermore, according to Brown, once the court sustained that objection, plaintiffs' counsel failed to make an offer of proof, which resulted in the issue being forfeited. In their reply brief, plaintiffs note that defense counsel failed to specify the basis for the objection at trial. Plaintiffs then submit that an opposing party's admissions may be admitted into evidence without laying any foundation and that a court may take judicial notice of pleadings. ¶ 88 We agree with Brown that plaintiffs forfeited their argument by failing to make an offer of proof after the court sustained defense counsel's objection to the question. See Chicago Park District v. Richardson, 220 Ill. App. 3d 696, 701 (1991) ("To be adequate, an offer of proof must apprise the trial court of what the offered evidence is or what the expected testimony will be, by whom it will be presented and its purpose."). It was not apparent from the question itself what plaintiffs' counsel was referring to when he asked Brown whether she initially denied that she was at fault for the crash. Even if the trial court understood that plaintiffs' counsel was referring to Brown's initial answer to the complaint, counsel failed to make an offer of proof informing the court of the purpose of this testimony or why it was admissible. Instead of making a record, counsel moved on with his examination of the witness. ¶ 89 Forfeiture aside, the trial court did not abuse its discretion in excluding this evidence. See La Salle National Bank v. 53rd-Ellis Currency Exchange, Inc., 249 Ill. App. 3d 415, 435 (1993) (the trial court's decision regarding the admission of impeachment evidence is reviewed for an abuse of discretion). Although defense counsel did not specify the basis for his objection, we may affirm the judgment on any basis in the record. In re Marriage of Wig, 2020 IL App (2d) 190929, ¶ 15. As the trial court explained when ruling on plaintiffs' postjudgment motion, this was an improper attempt to impeach Brown, as plaintiffs' counsel never confronted Brown with a statement that was inconsistent with her testimony on direct examination. "In order for a prior statement to be sufficiently inconsistent to be used for impeachment purposes, it must contravene the witness' direct testimony on a material matter." Chavez v. Watts, 161 Ill. App. 3d 664, 670 (1987). Nothing in Brown's testimony was inconsistent with the notion that she denied negligence in her original answer to the complaint. Contra Chavez, 161 Ill. App. 3d at 671 (a trial court properly allowed defense counsel to impeach the plaintiff with directly contradictory testimony that she gave in a deposition in another lawsuit). ¶ 90 Plaintiffs assert that the case at bar is "identical" to Long v. Yellow Cab Co., 137 Ill. App. 3d 324 (1985). Plaintiffs' reliance on Long is puzzling, as that case did not involve impeachment by use of a prior inconsistent statement. Plaintiffs' citation to other cases involving verified pleadings and judicial notice are likewise misplaced; Brown's initial answer to the complaint was not verified, and plaintiffs did not request the trial court to take judicial notice of Brown's pleading. The trial court properly sustained defense counsel's objection to plaintiffs' counsel's question.
¶ 91 G. Whether the Damages Awarded Were Incompatible With
The Jury's Factual Findings
¶ 92 Plaintiffs next argue that the award of damages was incompatible with the jury's factual findings. The gist of their reasoning is as follows. The issue for the jury to decide was whether Rafea's right shoulder impingement was caused by the motor vehicle accident. At trial, the defense gambled by relying solely on Dr. Player's proximate-causation testimony without presenting a lost-earnings expert to counter Gibson's opinions if the jury rejected Dr. Player's testimony. The defense likewise failed to undermine Gibson's methodology through cross-examination, as case law establishes that lost earning capacity is not necessarily linked to a plaintiff's historical wages or his wages at the time of trial. Given that the jury awarded Rafea more than $0 in damages for future lost earnings, the jury must have found that the accident caused Rafea's right shoulder impingement. Having so found, the jury was required to accept Gibson's unrebutted testimony regarding Rafea's lost earnings associated with that condition. Moreover, objective evidence showed that impingement syndrome is a permanent and painful condition, and even Dr. Player testified that it "hurts like a son of a gun." Thus, the jury was not entitled to disbelieve Rafea's testimony about his right shoulder pain. Under these circumstances, the jury's award of $500 for Rafea's lost earnings lacked any reasonable relationship to the injuries established at trial, and the verdict was irreconcilably inconsistent with the evidence presented. This award of nominal damages likely was due to defense counsel inflaming the jury's passions. The appropriate remedy is additur or, alternatively, a new trial on damages regarding Rafea's lost future earnings. ¶ 93 Brown responds that the jury's award was consistent with the evidence presented. Brown proposes that the jury believed Dr. Player's testimony regarding the extent of Rafea's injuries that were caused by the accident. ¶ 94 In ruling on plaintiffs' postjudgment motion, the trial court deduced that the jury (1) believed Dr. Player's testimony that Rafea's right shoulder impingement was not caused by the accident and (2) disbelieved Gibson's testimony regarding Rafea's lost earnings. The court explained that, because Dr. Player testified that Rafea's injuries resolved approximately six weeks after the accident, it was within the jury's province to decide that Rafea was entitled to $500 for lost earnings for that period. ¶ 95 "The determination of damages is a question of fact that is within the discretion of the jury." Snover v. McGraw, 172 Ill. 2d 438, 447 (1996). We must accord "substantial deference" to the jury's determination. Snover, 172 Ill. 2d at 447. A reviewing court may not disturb an award unless the jury ignored a proven element of damages, the verdict was the result of passion or prejudice, or the award bore no reasonable relationship to the loss that the plaintiff suffered. Snover, 172 Ill. 2d at 447. An award will stand so long as it "falls within the flexible range of conclusions reasonably supported by the evidence." Snelson v. Kamm, 204 Ill. 2d 1, 39 (2003). Where a plaintiff files a postjudgment motion requesting a new trial on the basis that the jury's award of damages was against the manifest weight of the evidence, we review the trial court's ruling on that motion for an abuse of discretion. Dixon v. Union Pacific Railroad Co., 383 Ill. App. 3d 453, 470 (2008). ¶ 96 The premise of plaintiffs' argument is that the jury awarded Rafea $500 for future lost earnings, not past lost earnings, given that "[n]o past lost wage evidence was submitted to the jury, nor was such even requested." Plaintiffs reason that, because the jury awarded Rafea more than $0 for future lost earnings, the jury must have determined that the accident caused Rafea's right shoulder impingement. The record, however, does not compel a conclusion that the jury awarded Rafea anything for future lost earnings. In May 2017, Gibson prepared a report calculating Rafea's loss of lifetime expected earnings. As part of that analysis, Gibson concluded that Rafea, who was 45 years old at the time of the report, would be expected to work another 18.1 years if he had no disability but only 15.3 years with his present limitations. At the May 2019 trial, Gibson testified to the same opinions and calculations set forth in his report. Thus, at least a portion of the amount that Gibson identified as Rafea's lifetime lost earnings represented losses that occurred prior to trial, i.e., between May 2017 and May 2019. Moreover, the line on the verdict form regarding Rafea's lost earnings asked the jury to determine "[t]he value of earnings lost and the present cash value of earnings reasonably certain to be lost in the future by Issam Rafea." The verdict form that plaintiffs tendered but the trial court rejected likewise contained a separate line for an award of "Past Lost Wages." Thus, the jury was asked to determine Rafea's total lost earnings, both past and future. The premise of plaintiffs' argument—that the jury awarded $500 only for Rafea's future lost earnings—is a conclusion that the record does not compel. ¶ 97 As the trial court recognized, the most reasonable inference to be drawn from the jury's verdict was that the jury accepted the defense's theory that the accident did not cause Rafea's right shoulder impingement. Indeed, the jury awarded Rafea a total of $3000, the exact amount that defense counsel proposed was fair compensation for Rafea's soft-tissue injuries. Although defense counsel proposed awarding Rafea nothing for lost earnings, the jury reasonably could have determined that Rafea deserved a nominal amount for any lost earnings occasioned by his minor injuries to his lower back and left shoulder. To that end, Rafea testified that he had to cancel some oud concerts after the crash, although he did not specify when those missed concerts were. Given that the evidence showed that Rafea performed many concerts in 2015 and 2016, the logical inference to be drawn is that Rafea missed concerts in 2014, the year of the accident. The jury very well may have awarded Rafea $500 for any concerts that he missed while he was recovering from the soft-tissue injuries that the defense conceded were related to the accident. ¶ 98 Even if the jury believed that the accident caused Rafea's right shoulder impingement, the jury was not required to accept Gibson's opinions regarding Rafea's lost earnings. There was evidence supporting a conclusion that Rafea's right shoulder impingement did not meaningfully impact his career in his chosen profession. For example, the evidence showed that Rafea was able to play the oud for multiple hours at a time after the accident, and Rafea continued to play concerts. Rafea was not consistent as to whether he felt pain when he played the oud, and there was evidence that Rafea did not need to elevate his right shoulder to play. Furthermore, Rafea specialized in an instrument that is not frequently used in Western music and he did not work full-time as a musician, so there was reason to question Gibson's decision to base his calculations on the average or mean salaries of full-time working musicians in the Chicago area. Although Gibson also calculated Rafea's lost earnings as a taxi driver or chauffeur, there was no evidence that Rafea ever intended to pursue that line of work either full-time or long-term. Under these circumstances, the jury was not required to accept Gibson's testimony, even if the jury believed that the accident caused Rafea's right shoulder impingement. ¶ 99 Plaintiffs cite and discuss an avalanche of case law, far too much for us to address the various cases individually. It will suffice to say that the cases do not justify the plaintiffs' requests for additur or a new trial on damages for Rafea's lost earnings. For example, plaintiffs cite cases where courts overturned low jury awards that were unjustified by the evidence, such as where the jury ignored damages that the defense either conceded or failed to refute. See, e.g., Hollis v. R. Latoria Construction Inc., 108 Ill. 2d 401, 407-08 (1985) (where the "uncontroverted evidence" showed that the plaintiff suffered serious injuries that left him unable to work for 18 months, our supreme court determined that a jury award that barely even compensated the plaintiff for his past lost wages was "inadequate."). Here, by contrast, the evidence regarding the nature and extent of Rafea's injuries was disputed, including by an expert who testified that the accident did not cause Rafea's right shoulder impingement. ¶ 100 Plaintiffs also cite cases where Gibson, or other experts who used similar methodologies, testified for the plaintiffs and the plaintiffs then obtained large awards. See, e.g., Zhao v. United States, 963 F.3d 692, 698 (7th Cir. 2020) (Gibson's future-earnings testimony supported a large verdict in favor of a boy who was born with a brachial plexus injury). Of course, a fact-finder's acceptance of Gibson's testimony in an unrelated case does not mean that the jury had to accept his testimony here. See Rossi v. Groft, 2013 WL 1632065, *4 (N.D. Ill. 2013) (although the district court denied the defendants' motion to bar Gibson from testifying, the court noted that the defense could attack those opinions at trial based on "any inconsistencies between Mr. Gibson's assumptions and the evidence in the record."). ¶ 101 Plaintiffs further cite case law establishing that calculating lost earning capacity is more complicated than simply comparing an injured party's actual wages before and after an accident. See, e.g., Robinson v. Greeley & Hansen, 114 Ill. App. 3d 720, 726 (1983) ("Damages should be estimated on the injured person's ability to earn money, rather than what he actually earned before the injury, and the difference in the actual earnings of plaintiff before and after the injury does not constitute the measure."). "Nevertheless, earnings before and after the injury may be helpful to a jury in its determination of the impairment of ability to earn." Robinson, 114 Ill. App. 3d at 726. Even Gibson acknowledged that it was "incumbent" on him to "look at how much he's [Rafea] earned in the past and use that as a benchmark to start from." Accordingly, in evaluating Gibson's opinions, the jury reasonably could have considered Rafea's actual earning history leading up to trial, including the fact that he never earned even $15,000 in any year. ¶ 102 For these reasons, the trial court did not abuse its discretion by denying plaintiffs' posttrial motion insofar as plaintiffs challenged the sufficiency of the damages awarded.
¶ 103 H. Itemization of Verdict Form
¶ 104 Finally, plaintiffs contend that the court erroneously refused their proposed verdict form. For the following reasons, we reject this argument. ¶ 105 During the jury instruction conference, plaintiffs' counsel proposed a modified IPI verdict form that (1) itemized each category of damages that Rafea requested and (2) included separate lines for awards of past and future losses in each category. Defense counsel objected to this verdict form, noting that the IPI does not include separate lines for past and future losses. See IPI, Civil, No. 30.04.01 ("Loss of a normal life experienced (and reasonably certain to be experienced in the future)"); IPI, Civil, No. 30.05 ("The pain and suffering experienced [and reasonably certain to be experienced in the future] as a result of the injuries"); IPI, Civil, No. 30.05.01 ("The emotional distress experienced [and reasonably certain to be experienced in the future]"); IPI, Civil, No. 30.07 ("[The value of (time) (earnings) (profits) (salaries) (benefits) lost] [.] [and] [(T)he present cash value of the (time) (earnings) (profits) (salaries) (benefits) reasonably certain to be lost in the future]"). In response to defense counsel's objection to plaintiffs' proposed verdict form, plaintiffs' counsel argued that case law supported itemizing between past and future losses. The trial court indicated that it "respect[ed]" plaintiffs' counsel's view but would "go with what the IPI shows." The verdict form that the court submitted to the jury itemized each category of damages that plaintiffs requested but did not include separate lines for past and future losses in each category. ¶ 106 The verdict form here followed the IPI. A trial court "shall" use an IPI instruction unless such instruction "does not accurately state the law." Ill. S. Ct. R. 239(a) (eff. Apr. 8, 2013). The question, then, is whether the instruction that the court used does not follow the law. We review that question de novo. Studt v. Sherman Health Systems, 2011 IL 108182, ¶ 13. ¶ 107 Plaintiffs rely on a portion of the first sentence of section 2-1109 of the Code, which states: "In every case where damages for injury to the person are assessed by the jury the verdict shall be itemized so as to reflect the monetary distribution among economic loss and non-economic loss, if any ***." 735 ILCS 5/2-1109 (West 1994). The verdict form that the trial court used complied with this requirement, as it itemized all categories of damages that plaintiffs requested. ¶ 108 Furthermore, the cases that plaintiffs cite do not establish that the trial court was required to include separate lines in the verdict form to delineate between past and future losses. Maddox v. Rozek, 265 Ill. App. 3d 1007 (1994), did not even address this issue. Maddox held that, where the jury awarded the plaintiff $10,600 for "pain and suffering 'experienced and reasonably certain to be experienced in the future,' " but the evidence did not support an award of damages for future pain and suffering, the matter had to be remanded for a new trial on damages because the appellate court could not determine how much the jury awarded for future pain and suffering. Maddox, 265 Ill. App. 3d at 1009, 1011-12. ¶ 109 Henderson v. Hudson, 121 Ill. App. 3d 780 (1984), likewise does not support plaintiffs' contention of error. In Henderson, the court found that a trial court committed reversible error by refusing the plaintiff's request to use a verdict form that itemized between economic and non-economic damages. Henderson, 121 Ill. App. 3d at 784-85. Here, by contrast, the verdict form that the court used itemized all the various categories of damages that plaintiffs requested. We also note that the verdict form that the Henderson court said should have been used did not provide for separate lines to distinguish between past and future losses. See Henderson, 121 Ill. App. 3d at 783. ¶ 110 In Doering v. Janssen, 76 Ill. App. 3d 62, 67-68 (1979), the court held that the trial court did not err by using a verdict form that contained separate lines for awards of past and future losses in some of the categories of damages that the plaintiff requested. The court reasoned that there was no problem in itemizing a verdict form beyond what was expressly required by statute (the predecessor to section 2-1109 of the Code). Doering, 76 Ill. App. 3d at 67-68. Doering thus indicates that a trial court may use a verdict form that contains separate lines for past and future losses; it does not say that a trial court is required to do so. ¶ 111 In Powers v. Illinois Central Gulf Railroad Co., 91 Ill. 2d 375, 378 (1982), the trial court used a verdict form that was similar to the one in the present case. Specifically, the verdict form itemized the various categories of damages that the plaintiff requested but did not include separate lines for past and future losses in each category. Powers, 91 Ill. 2d at 378. The defendant appealed, arguing, in relevant portion, that the trial court erred by itemizing the verdict form beyond what was permitted by the applicable statute (the predecessor to section 2-1109 of the Code). Powers, 91 Ill. 2d at 386. Our supreme court rejected that argument. Approving of Doering's analysis, the court held that a more detailed itemization of damages than what is required by the literal language of the statute "is not erroneous and in many cases will be of greater assistance to the jurors in determining what specific awards to allocate for the separate and compensable elements of damage." Powers, 91 Ill. 2d at 387. Powers thus supports a conclusion that the verdict form that the trial court used in the case at bar was appropriate. ¶ 112 The final case that plaintiffs cite is Jones v. Graphic Arts Finishing Co., 2012 WL 10131038 (N.D. Ill. 2012), an unpublished federal district court case. In Jones, without any real analysis, the district court judge decided to use a verdict form that contained separate lines for past and future losses in each category of damages requested. Jones, 2012 WL 10131038, at * 5. As with the other cases that plaintiffs cite, Jones does not support the notion that a trial court must use such verdict form. ¶ 113 Plaintiffs have not demonstrated that the verdict form used here, which tracked the language of the IPI, inaccurately stated the law. Accordingly, there was no error.
This statute was last amended in 1995 by Public Act 89-7. In Best v. Taylor Machine Works, 179 Ill. 2d 367, 467 (1997), our supreme court held that Public Act 89-7 was unconstitutional in its entirety. Accordingly, the pre-amendment version of section 2-1109 of the Code is in effect.
¶ 114 III. CONCLUSION
¶ 115 For the reasons stated, we affirm the judgment of the circuit court of De Kalb County. ¶ 116 Affirmed.