The court agreed that the photograph of the model of the defendant's vehicle was demonstrative, but the two aerial photographs of the intersection were clearly offered as substantive evidence. ¶ 17 Regarding the purported conflict in case law, the circuit court ruled it would follow Bianchi v. Mikhail, 266 Ill.App.3d 767, 204 Ill.Dec. 21, 640 N.E.2d 1370 (1994), a First District case, rather than the case offered by the plaintiff, Southern Illinois Airport Authority v. Smith, 267 Ill.App.3d 201, 204 Ill.Dec. 621, 641 N.E.2d 1240 (1994), a Fifth District case. The court cited additional authority for its ruling that the photographs were subject to disclosure: Warrender v. Millsop, 304 Ill.App.3d 260, 237 Ill.Dec. 882, 710 N.E.2d 512 (1999), Monier v. Chamberlain, 35 Ill.2d 351, 221 N.E.2d 410 (1966), and Carney v. Smith, 240 Ill.App.3d 650, 181 Ill.Dec. 306, 608 N.E.2d 379 (1992).
Infra ¶ 93. The dissent cites two cases to support its fanciful "inherent" prejudice theory: Southern Illinois Airport Authority v. Smith, 267 Ill.App.3d 201 (1994), and DiCosolo v. Janssen Pharmaceuticals, Inc., 2011 IL App (1st) 093562. Actually, both cases support the majority's result, reiterating the binding precedent that governs this case.
The defendant argues in response that she was not required to disclose the videotape because it was to be used, if at all, only for cross-examination. In Southern Illinois Airport Authority v. Smith, 267 Ill. App.3d 201, 207, 641 N.E.2d 1240, 1244 (1994), the court held that a party need not turn over in discovery documents to be used solely in cross-examination and that are within the public domain and are equally available to both parties. However, we do not think that this rule applies in the instant case.
Thus, defendants' failure to move to exclude exhibits that they were unaware of certainly does not relieve plaintiffs of their duty to comply with disclosure requirements. Plaintiffs, citing Southern Illinois Airport Authority v. Smith, 267 Ill. App.3d 201, 209 (1994), contend further that, even if they did not properly disclose exhibits 77 through 80, the court should have allowed them to use the exhibits because the articles were in the public domain; were only to be used on cross-examination; and were such that the witnesses should have been familiar with the articles if their testimony was to be given credibility. However, in Southern, unlike the instant case, the exhibit in question was a deed.
Jury verdicts should not be set aside and cause the expense of a new trial unless there has been a miscarriage of justice, caused by an error that prejudiced and affected the substantial rights of an innocent party. ( Southern Illinois Airport Authority v. Smith (1994), 267 Ill. App.3d 201, 209, 641 N.E.2d 1240, 1246.) A reviewing court will not reverse the order granting a new trial unless it is shown to be an abuse of discretion. Southern Illinois, 267 Ill. App.3d at 204, 641 N.E.2d at 1242.
" Id. ¶ 24. ¶ 34 Defendants rely heavily upon Southern Illinois Airport Authority v. Smith, 267 Ill.App.3d 201, 641 N.E.2d 1240 (1994). However, the First District neatly summarizes that case, noting, "In [that] case, a new trial was unwarranted because the defendant did not suffer substantial prejudice from the cross-examination of the defendant's valuation witness regarding an undisclosed property document."
We may also be limiting the ability to ascertain the truth.' " Maffett, 329 Ill. App. 3d at 577 (quoting Southern Illinois Airport Authority v. Smith, 267 Ill. App. 3d 201, 206 (1994)). Accordingly, the circuit court here did not err in allowing Dr. Finn's testimony regarding Julie's hiring of Dr. Mosk because he made the disputed statements on cross-examination.
Moreover, contrary to Yanello's suggestion, the defendants were not required to produce the Association's Code prior to trial pursuant to Supreme Court Rules 213, 214, or 237 because they used the Code provisions during cross-examination for impeachment purposes only, not as substantive evidence. Stapleton , 403 Ill.App.3d at 156, 342 Ill.Dec. 360, 932 N.E.2d 487 ; Southern Illinois Airport Authority v. Smith , 267 Ill.App.3d 201, 204 Ill.Dec. 621, 641 N.E.2d 1240 (1994). This distinguishes Yanello's case from Poole v. The University of Chicago, 186 Ill.App.3d 554, 134 Ill.Dec. 400, 542 N.E.2d 746 (1989), a case upon which Yanello relies.
In Maffett, the trial court properly allowed defendants to use previously undisclosed journal articles on cross-examination, finding `none of Rule 213's disclosure requirements applies to cross-examining an opposing party's opinion witness.' Maffett, 329 Ill. App. 3d at 577. `In this regard, we agree with what the appellate court wrote in Southern Illinois Airport Authority v. Smith, 267 Ill. App. 3d 201, 206, 641 N.E.2d 1240 (1994): "If the cross-examiner, to use a cliche, must telegraph his punch, cross-examination would lose its effectiveness. *** By eliminating the spontaneity, we would certainly avoid surprises.
Maffett, 329 Ill. App. 3d at 577. "In this regard, we agree with what the appellate court wrote in Southern Illinois Airport Authority v. Smith, 267 Ill. App. 3d 201, 206, 641 N.E.2d 1240 (1994): `If the cross-examiner, to use a cliché, must telegraph his punch, cross-examination would lose its effectiveness. * * * By eliminating the spontaneity, we would certainly avoid surprises.