                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




           Drakeford v. University of Chicago Hospitals, 2013 IL App (1st) 111366




Appellate Court            ALEXANDRIA DRAKEFORD, Individually and as Special
Caption                    Administrator of the Estate of Valentina Nakia Dearring, Deceased,
                           Plaintiff-Appellee and Cross-Appellant, v. UNIVERSITY OF CHICAGO
                           HOSPITALS, Illinois Not-for-Profit Corporation, Defendant-Appellant
                           and Cross-Appellee.



District & No.             First District, Sixth Division
                           Docket No. 1-11-1366


Filed                      June 28, 2013


Held                       On appeal from the entry of a judgment for plaintiff in her action against
(Note: This syllabus       defendant hospital arising from the death and unauthorized burial of her
constitutes no part of     infant daughter, the trial court did not err in denying the hospital’s motion
the opinion of the court   for a judgment n.o.v. on the count alleging willful and wanton conduct in
but has been prepared      connection with the infant’s burial, and there was no error in refusing to
by the Reporter of         give a contributory negligence instruction, striking testimony as to
Decisions for the          whether plaintiff requested an autopsy, and limiting a hospital employee’s
convenience of the         testimony about the alteration of the infant’s death certificate.
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 05-L-3829; the Hon.
Review                     Dennis J. Burke, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 William V. Johnson, David M. Macksey, Garrett L. Boehm, Jr., and Peter
Appeal                     R. Ryndak, all of Johnson & Bell, Ltd., of Chicago, for appellant.

                           Michael W. Rathsack, of Chicago, for appellee.


Panel                      JUSTICE HALL delivered the judgment of the court, with opinion.
                           Presiding Justice Lampkin concurred in the judgment and opinion.
                           Justice Gordon dissented, with opinion.



                                              OPINION

¶1          This appeal arises from the death and alleged unauthorized burial of plaintiff Alexandria
        Drakeford’s infant daughter, Valentina Nakia Dearring. Plaintiff gave birth to Valentina on
        March 8, 2003, at defendant University of Chicago Hospitals. Valentina was born with
        “Persistent Pulmonary Hypertension of the Newborn” (PPHN), a potentially fatal medical
        condition affecting infants and young children where blood vessels in the lungs constrict,
        reducing their capacity to deliver oxygen to the blood. Valentina died on April 10, 2003.
¶2          On April 6, 2005, plaintiff filed suit against defendant hospital and various medical
        personnel. Plaintiff originally alleged causes of action for wrongful death and survival based
        on medical negligence. Following a third amended complaint, the case went to the jury on
        medical negligence claims and on a count alleging willful and wanton interference with
        plaintiff’s right to possession of her daughter’s remains. In the willful and wanton count,
        plaintiff alleged the defendant hospital caused her daughter’s remains to be buried in a mass,
        unmarked grave without her knowledge or consent and without performing a requested
        autopsy. The jury rejected the medical negligence claims but returned a verdict for plaintiff
        and against defendant hospital on the willful and wanton count, awarding her $4.6 million
        in damages.
¶3          The trial court granted defendant hospital’s posttrial motion for a remittitur. The amount
        of damages was reduced to $3 million conditioned upon plaintiff’s acceptance of the
        remittitur. Plaintiff accepted the remittitur and final judgment was entered in her favor on
        May 6, 2011. Defendant filed a timely notice of appeal. Plaintiff cross-appealed, challenging
        the remittitur. For the reasons that follow, we affirm.

¶4                                           ANALYSIS
¶5          Defendant hospital raises a number of issues on appeal, none of which warrant reversal
        of the jury’s verdict. We address each issue in turn. Defendant hospital first contends that its
        conduct in arranging a hospital burial for plaintiff’s infant daughter did not rise to the level
        of willful and wanton conduct and therefore the trial court erred in denying its motion for a

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       judgment notwithstanding the verdict.
¶6         A decision on a motion for judgment notwithstanding the verdict is reviewed de novo.
       Snelson v. Kamm, 204 Ill. 2d 1, 42 (2003). Defendant hospital was entitled to a judgment
       notwithstanding the verdict only if it could show that the evidence, when considered in a
       light most favorable to plaintiff, so overwhelmingly favored the hospital that no verdict
       against it could ever stand. See Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510
       (1967) (a judgment notwithstanding the verdict is properly entered only in those limited
       cases where “all of the evidence, when viewed in its aspect most favorable to the opponent,
       so overwhelmingly favors movant that no contrary verdict based on that evidence could ever
       stand”). Our courts have recognized that this is a difficult standard to meet. Jones v. Chicago
       Osteopathic Hospital, 316 Ill. App. 3d 1121, 1125 (2000); Knauerhaze v. Nelson, 361 Ill.
       App. 3d 538, 548 (2005). Defendant hospital did not meet the standard in this case.
¶7         “In ruling on a motion for a judgment notwithstanding the verdict, a court does not weigh
       the evidence, nor is it concerned with the credibility of the witnesses ***.” Board of Trustees
       of Community College District No. 508, County of Cook v. Coopers & Lybrand, 208 Ill. 2d
       259, 274 (2003). It “is the province of the jury to resolve conflicts in the evidence, to pass
       upon the credibility of the witnesses, and to decide what weight should be given to the
       witnesses’ testimony.” Maple v. Gustafson, 151 Ill. 2d 445, 452 (1992). In ruling on a motion
       for a judgment notwithstanding the verdict, an appellate court, like the trial court, must be
       careful not to “ ‘usurp the function of the jury and substitute its judgment on questions of fact
       fairly submitted, tried, and determined from the evidence which did not greatly preponderate
       either way.’ ” McClure v. Owens Corning Fiberglas Corp., 188 Ill. 2d 102, 132 (1999)
       (quoting Maple, 151 Ill. 2d at 452-53). Judgment notwithstanding the verdict is not
       appropriate if “reasonable minds might differ as to inferences or conclusions to be drawn
       from the facts presented.” Pasquale v. Speed Products Engineering, 166 Ill. 2d 337, 351
       (1995).
¶8         Defendant hospital claims the trial court erred in denying its motion for a judgment
       notwithstanding the verdict on the willful and wanton count, arguing the evidence was not
       sufficient to support a finding that the actions of its employee, Ms. Maybleine Griggers, was
       willful and wanton. Ms. Griggers was employed as an “expiration coordinator.” She was
       “charged with the responsibility of managing all of the paperwork that was necessary if
       someone died in the hospital.” She was required to make sure that all of the appropriate
       paperwork and documents were accurately prepared and preserved.
¶9         Plaintiff contends that Ms. Griggers’ failure to follow mandatory hospital policies and
       procedures concerning the handling of deceased patients’ remains caused her daughter’s
       remains to be buried in a mass, unmarked grave without her knowledge or consent and
       without performing a requested autopsy. Plaintiff alleges these failures amounted to willful
       and wanton misconduct. She maintains that Ms. Griggers’ misconduct made it impossible
       to give her daughter a proper burial and to have her daughter’s remains buried in the family
       plot.
¶ 10       There is no separate and independent tort of willful and wanton misconduct. Ziarko v.
       Soo Line R.R. Co., 161 Ill. 2d 267, 274 (1994). Willful and wanton misconduct encompasses


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       a range of misconduct, covering the area between negligence and intentional wrongdoing,
       sharing many characteristics with acts of ordinary negligence. See Pomaro v. Community
       Consolidated School District 21, 278 Ill. App. 3d 266, 269 (1995) (“wilful and wanton
       conduct may lie anywhere between the parameters of intentional misconduct and mere
       negligence”); Sparks v. Starks, 367 Ill. App. 3d 834, 837 (2006) (“willful and wanton
       misconduct is essentially an aggravated form of negligence, regarded as a hybrid between
       conduct considered negligent and conduct considered intentionally tortious”).
¶ 11        Whether certain conduct rises to the level of willful and wanton misconduct depends
       upon the facts of each case. Giers v. Anten, 68 Ill. App. 3d 535, 539 (1978); see Ziarko, 161
       Ill. 2d at 275-76 (“[u]nder the facts of one case, willful and wanton misconduct may be only
       degrees more than ordinary negligence, while under the facts of another case, willful and
       wanton acts may be only degrees less than intentional wrongdoing”). The determination of
       this issue is generally a question of fact for the jury to decide. Oelze v. Score Sports Venture,
       LLC, 401 Ill. App. 3d 110, 123 (2010).
¶ 12        The conduct at issue in this case concerns alleged “reckless” willful and wanton
       misconduct. Reckless willful and wanton conduct is defined as a course of action that shows
       an utter indifference to or conscious disregard for the safety or property of others. Pfister v.
       Shusta, 167 Ill. 2d 417, 421-22 (1995). Reckless willful and wanton misconduct may be
       proven where there is a “ ‘failure, after knowledge of impending danger, to exercise ordinary
       care to prevent’ the danger, or a ‘failure to discover the danger through *** carelessness
       when it could have been discovered by the exercise of ordinary care.’ ” Ziarko, 161 Ill. 2d
       at 274 (quoting Schneiderman v. Interstate Transit Lines, Inc., 394 Ill. 569, 583 (1946)).
¶ 13        In the instant case, the trial court instructed the jury on willful and wanton conduct as
       follows: “When I use the expression, quote, willful and wanton conduct, end quote, I mean
       a course of action which shows an utter indifference to or conscious disregard for the safety
       of others. It was the duty of the defendant University of Chicago Hospitals under the willful
       and wanton count of the complaint before and at the time of the occurrence to refrain from
       willful and wanton conduct which would endanger the plaintiff’s right to possession of her
       daughter’s remains.”
¶ 14        At common law, there is no property right in a dead body. In re Estate of Medlen, 286
       Ill. App. 3d 860, 864 (1997). However, the next of kin have a quasi-property right to
       possession of a decedent’s remains in order to make appropriate disposition thereof. Rekosh
       v. Parks, 316 Ill. App. 3d 58, 68 (2000); Leno v. St. Joseph Hospital, 55 Ill. 2d 114, 117
       (1973). “In Illinois, this right has been construed to give the next of kin the right to determine
       the time, manner, and the place of burial.” In re Estate of Medlen, 286 Ill. App. 3d at 864.
       “To state a cause of action based on the right of the next of kin to possession and
       preservation of the body of a decedent, plaintiffs must demonstrate by specific facts that
       defendant’s conduct was wilful and wanton.” Kelso v. Watson, 204 Ill. App. 3d 727, 731
       (1990).
¶ 15        Viewing the evidence in a light most favorable to plaintiff, as we must in considering
       defendant hospital’s motion for judgment notwithstanding the verdict, we find there was
       sufficient evidence to support the jury’s verdict on the willful and wanton misconduct count.


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       Conflicting evidence was presented on the primary issue of whether plaintiff consented to
       allow defendant hospital to handle the disposition of her daughter’s remains. Plaintiff
       testified she never gave defendant hospital consent to release her daughter’s remains or to
       dispose of the remains. In contrast, Ms. Griggers testified she made repeated telephone calls
       to plaintiff in the eight days following the infant’s death and that the calls went unreturned
       until the eighth day, when plaintiff called and gave her consent for a hospital burial in a
       telephone call witnessed by Griggers’ supervisor, Ms. Janice Hooper.
¶ 16       Griggers’ testimony was impeached by the following evidence: mandatory hospital policy
       required written, signed consent from a decedent’s next of kin before the hospital could
       properly release the decedent’s remains for disposition; Griggers acknowledged she had no
       independent memory of the alleged telephone calls she made to plaintiff and her alleged
       worksheet documenting the various dates and times she claimed to have telephoned plaintiff
       were never produced at trial; Ms. Hooper, who allegedly witnessed the telephone call during
       which plaintiff gave her verbal consent, was deceased at the time of trial and was thus
       unavailable to corroborate Griggers’ testimony; the only hospital document (“Authorization
       for Autopsy and Certificate of Removal”) reflecting that Griggers obtained verbal consent
       from plaintiff to proceed with the hospital burial, indicated that the consent was obtained
       after the police had already removed the infant’s body for transportation to the Cook County
       morgue; and finally, the infant’s hospital chart was missing the “Consent for Release of
       Deceased” form, a hospital form that is signed by the next of kin authorizing the hospital to
       release the decedent’s remains to a designated undertaker.
¶ 17       Given this impeaching evidence, the jury could have reasonably concluded that Ms.
       Griggers failed to exercise due care in implementing defendant hospital’s mandatory
       procedures for handling a deceased patient’s remains and proceeded to release the infant’s
       remains without first obtaining plaintiff’s written consent to do so and that such failure
       amounted to willful and wanton misconduct evidencing a conscious disregard for or
       indifference to plaintiff’s right to possession of her deceased daughter’s remains. Under
       certain circumstances, a person can be guilty of willful and wanton conduct not only through
       an error in judgment but also from a failure to exercise judgment. Spence v. Commonwealth
       Edison Co., 34 Ill. App. 3d 1059, 1067 (1975).
¶ 18       After considering all of the evidence in a light most favorable to plaintiff, we cannot find
       that it so overwhelmingly favored defendant hospital that no jury verdict based on that
       evidence could ever stand. See Pedrick, 37 Ill. 2d at 510. The trial court did not err in
       denying defendant hospital’s motion for a judgment notwithstanding the verdict.
¶ 19       Defendant hospital next contends the trial court erred in denying its motion to dismiss
       plaintiff’s willful and wanton count pursuant to section 2-619(a)(5) of the Illinois Code of
       Civil Procedure (Code), which provides that a defendant is entitled to a dismissal if “the
       action was not commenced within the time limited by law.” 735 ILCS 5/2-619(a)(5) (West
       2008). We review a trial court’s denial of a section 2-619 motion under a de novo standard
       of review. Polites v. U.S. Bank National Ass’n, 361 Ill. App. 3d 76, 80 (2005).
¶ 20       Defendant hospital asserts that plaintiff’s willful and wanton claim was time barred by
       the five-year statute of limitations period set forth in section 13-205 of the Code, which


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       provides that “all civil actions not otherwise provided for, shall be commenced within 5 years
       next after the cause of action accrued.” 735 ILCS 5/13-205 (West 2008). Under the
       “discovery rule,” a statute of limitations starts to run “when a person knows or reasonably
       should know of his injury and also knows or reasonably should know that it was wrongfully
       caused.” Knox College v. Celotex Corp., 88 Ill. 2d 407, 414-15 (1981).
¶ 21        The key fact to be determined here is when plaintiff knew or reasonably should have
       known of the alleged improper burial. Defendant hospital maintains it released the infant’s
       body to the county morgue for burial on April 18, 2003. Defendant hospital argues the five-
       year statute of limitations began to run no later than sometime in early June 2003, when
       plaintiff spoke to an individual in the hospital’s expiration department and was informed that
       no autopsy had been performed on her daughter’s body. Defendant hospital contends that at
       that point, plaintiff knew or reasonably should have known of the alleged improper burial
       and therefore the statute of limitations expired before plaintiff alleged a willful and wanton
       misconduct claim on July 9, 2008. We must disagree.
¶ 22        Review of the record indicates plaintiff went to the hospital sometime in July or August
       2003, to obtain an autopsy report and was instructed to obtain a death certificate. Plaintiff
       believed her daughter’s body was still at the hospital’s morgue. When plaintiff obtained the
       death certificate, she discovered her daughter’s remains had been taken to Homewood
       Memorial Gardens Cemetery for burial. The record indicates plaintiff had no knowledge of
       the alleged improper burial until she obtained her daughter’s death certificate sometime in
       July or August 2003. Therefore, evidence plaintiff was informed no autopsy had been
       performed on her daughter’s body does not support a finding, as a matter of law, that she
       knew or reasonably should have known the hospital had released the infant’s remains for
       burial.
¶ 23        Defendant hospital next contends the trial court erred by refusing to give a contributory
       negligence instruction. Defendant hospital sought to prove that plaintiff was contributorily
       negligent by failing to arrange for the infant’s burial. Defendant hospital maintains plaintiff
       “had a duty to provide for the proper disposition of the infant’s remains, either by arranging
       for a hospital burial or by taking possession and control of the remains herself.” The trial
       court refused to instruct the jury on contributory negligence, finding that plaintiff had no duty
       in this regard. We agree with the trial court.
¶ 24        “A jury instruction is justified if it is supported by some evidence in the record, and the
       trial court has discretion in deciding which issues are raised by the evidence.” Clarke v.
       Medley Moving & Storage, Inc., 381 Ill. App. 3d 82, 91 (2008). “Contributory negligence is
       defined as a lack of due care for one’s own safety as measured by an objective reasonable
       person standard.” McCarthy v. Kunicki, 355 Ill. App. 3d 957, 972 (2005). “Instructions
       regarding plaintiff’s contributory negligence are not proper where there is no testimony or
       other evidence from which a finding of contributory negligence might be made.” Id. In this
       case, there was no evidence warranting the submission of a contributory negligence
       instruction to the jury.
¶ 25        Defendant hospital cites the case of Mesinger v. O’Hara, 189 Ill. App. 48, 53-54 (1914),
       for the proposition that a decedent’s next of kin has a duty to take possession of the


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       decedent’s body for the purpose of giving it a decent burial. However, the court’s statement
       regarding such a duty was dicta, made in the context of the court’s recitation of the history
       of an action for interference with the right to dispose of a decedent’s body. See Mesinger,
       189 Ill. App. at 53-54 (“The decided weight of authority in this country supports the
       proposition that while a dead body is not considered as property, in the ordinary, technical
       sense in which that word is usually employed, yet the law does recognize a right, *** arising
       out of the duty of the nearest relatives of the deceased to bury their dead, which authorizes
       and requires them to take possession and control of the dead body for the purpose of giving
       it a decent burial.”).
¶ 26        Moreover, even if plaintiff had a duty to take possession of her daughter’s body for
       burial, such a duty was irrelevant to a determination as to whether she was contributorily
       negligent. The primary issue on appeal is whether defendant hospital disposed of the infant’s
       remains without obtaining plaintiff’s consent. If plaintiff never gave such consent, then she
       could not have violated such a duty. On the other hand, if defendant hospital is correct, and
       plaintiff consented to the hospital burial, then plaintiff fulfilled her duty. Neither scenario
       indicates negligence on plaintiff’s part.
¶ 27        Defendant hospital next contends the trial court erred in striking Dr. William Meadow’s
       testimony as to whether plaintiff requested an autopsy. The doctor was one of the infant’s last
       attending physicians. Dr. Meadow, who testified on behalf of defendant hospital, was asked
       on direct examination whether plaintiff requested an autopsy. The doctor responded that he
       did not “have any specific recollection outside of the chart, but in the chart there’s no record
       that she did and I don’t believe she did.”
¶ 28        Defense counsel then asked Dr. Meadow what the procedure would have been if plaintiff
       had requested an autopsy. When the doctor began explaining the hospital’s customary
       practice regarding requests for autopsies, plaintiff’s counsel objected on the ground that no
       such testimony had been disclosed in accordance with Illinois Supreme Court Rule 213 (eff.
       Jan. 1, 2007). At his deposition, the doctor had only been asked about expirations, not
       autopsies.
¶ 29        A side-bar discussion followed outside the presence of the jury. Plaintiff’s counsel
       explained to the trial court that in his Rule 213 disclosure and discovery deposition, Dr.
       Meadow never mentioned anything about autopsies. The trial court read out loud a portion
       of Dr. Meadow’s deposition wherein the doctor stated, “I was not the primary attending for
       the baby either in the month of March or April. As you can see from the record, my
       encounter of the baby was infrequent.” The trial court then told defense counsel, “[y]ou can
       ask him about expiration, but there’s nothing there.” Defense counsel responded, “well, if
       that’s not enough to get into the autopsy, then I won’t go into it.” The trial court sustained
       plaintiff’s Rule 213 objection, stating, “[t]hen I’m going to sustain the objection because
       there’s nothing at all that I can see here with respect to autopsy.” The trial court struck the
       doctor’s testimony concerning autopsies.
¶ 30        The admission of evidence pursuant to Supreme Court Rule 213 is within the trial court’s
       discretion, and the court’s ruling will not be disturbed absent an abuse of that discretion.
       Sullivan v. Edward Hospital, 209 Ill. 2d 100, 109 (2004). An abuse of discretion occurs when


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       the court’s ruling is arbitrary, fanciful or unreasonable, or where no reasonable person would
       adopt the court’s view. TruServ Corp. v. Ernst & Young, LLP, 376 Ill. App. 3d 218, 227
       (2007).
¶ 31        Illinois Supreme Court rules concerning discovery are mandatory and strict compliance
       is required. Sullivan, 209 Ill. 2d at 109. Rule 213(f)(3) requires parties to furnish, among
       other things, the subject matter, conclusions and opinions of controlled expert witnesses who
       will testify at trial. Ill. S. Ct. R. 213(f) (eff. Jan. 1, 2007); Lopez v. Northwestern Memorial
       Hospital, 375 Ill. App. 3d 637, 645 (2007). Rule 213(g) limits expert opinions at trial to
       “information disclosed in answer to a Rule 213(f) interrogatory, or in a discovery
       deposition.” Ill. S. Ct. R. 213(g) (eff. Jan. 1, 2007). “Rule 213 is designed to give those
       involved in the trial process a degree of certainty and predictability that furthers the
       administration of justice and eliminates trial by ambush.” (Internal quotation marks omitted.)
       Clayton v. County of Cook, 346 Ill. App. 3d 367, 381 (2003).
¶ 32        Defendant hospital first suggests that performing an autopsy is included within the
       definition of care and treatment rendered by Dr. Meadow and therefore the trial court erred
       in striking the doctor’s testimony concerning autopsies. We must disagree. The trial court
       was well within its discretion when it determined that the performance of an autopsy by a
       physician other than Dr. Meadow was not a part of the care and treatment the doctor rendered
       to plaintiff’s infant daughter.
¶ 33        Defendant hospital next contends that Dr. Meadow should have been allowed to testify
       regarding his customary practice of advising parents of the availability of an autopsy and
       should have been allowed to testify that the infant’s medical chart did not contain a request
       for an autopsy. Defendant hospital maintains that the doctor’s proposed testimony was not
       “opinion” testimony subject to Supreme Court Rule 213, but was rather testimony about facts
       based on the doctor’s personal knowledge and involvement in the events following the
       infant’s death. Again, we must disagree.
¶ 34        The doctor’s proposed testimony would have constituted speculative opinion testimony.
       Defendant hospital appears to assume that testimony regarding custom and practice is
       composed primarily of factual testimony. “[C]ustom and practice may be established by
       opinion testimony of a person with personal knowledge or by introduction of specific
       instances of conduct sufficient in number to support a finding of routine practice.” Sanders
       v. City of Chicago, 306 Ill. App. 3d 356, 366 (1999). “Opinion testimony concerns what a
       witness thinks, believes, or infers in regard to facts in dispute, as distinguished from his
       personal knowledge of the facts themselves.” (Internal quotation marks omitted.) Prairie v.
       Snow Valley Health Resources, Inc., 324 Ill. App. 3d 568, 577 (2001).
¶ 35        Here, Dr. Meadow acknowledged he had no independent recollection of plaintiff’s case
       and he had no personal knowledge as to whether she ever requested an autopsy of her
       daughter’s body. For the doctor to infer that no autopsy was requested because there was no
       charting entry is opinion, and his inference that no autopsy was requested because in practice,
       if it was, it would have been charted constitutes an opinion as well.
¶ 36        Defendant hospital next argues the trial court erred and should have allowed Dr. Meadow
       to testify that plaintiff failed to request an autopsy since plaintiff was allowed to testify she


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       made such a request. This argument is meritless. The record shows that plaintiff disclosed
       in her deposition that she requested an autopsy, so there was no Rule 213 issue. The hospital
       did not disclose as to Dr. Meadow, so Rule 213 applied. One outcome is not tied to the other.
       The question is which party complied with Rule 213.
¶ 37        Defendant hospital next contends that plaintiff should not have been allowed to testify
       that she requested an autopsy, because she did not provide sufficient details about the
       request. Defendant hospital’s motion in limine No. 9 sought to bar plaintiff from testifying
       that she requested an autopsy.
¶ 38        “A motion in limine is addressed to the trial court’s inherent power to admit or exclude
       evidence.” Beehn v. Eppard, 321 Ill. App. 3d 677, 680 (2001). “[A] denial of a motion in
       limine does not preserve an objection to disputed evidence later introduced at trial.” Brown
       v. Baker, 284 Ill. App. 3d 401, 406 (1996). “When a motion in limine is denied, a
       contemporaneous objection to the evidence at the time it is offered is required to preserve
       the issue for review.” Id. “Absent the requisite objection, the right to raise the issue on appeal
       is waived.” Illinois State Toll Highway Authority v. Heritage Standard Bank & Trust Co.,
       163 Ill. 2d 498, 502 (1994).
¶ 39        In this case, the only objection during plaintiff’s direct examination on this point was to
       leading, and the question was rephrased without further objection. The issue was also waived
       because defense counsel elicited similar testimony from plaintiff on cross-examination.
¶ 40        Defendant hospital next argues the trial court erred in giving a jury instruction on
       institutional negligence (Illinois Pattern Jury Instructions, Civil, No. 105.03.01 (2000)
       (hereinafter IPI Civil (2000) No. 105.03.01)). A “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.” Schultz v. Northeast Illinois Regional Commuter R.R. Corp., 201
       Ill. 2d 260, 273 (2002). “A reviewing court will not reverse a cause on the basis of an
       improper jury instruction unless, considering the instructions as a whole, the alleged
       improper instruction clearly mislead the jury.” Decker v. St. Mary’s Hospital, 249 Ill. App.
       3d 802, 821 (1993).
¶ 41        Defendant hospital contends the institutional negligence instruction confused the jury
       during its deliberations by allowing jurors to consider institutional negligence in deciding the
       disposition-of-remains claim. Our review of the record convinces us there is no reasonable
       probability the jury was confused by the institutional negligence instruction.
¶ 42        The jury was instructed that there were two separate claims, with two separate burdens
       of proof. The jury was also given a definition of willful and wanton. In addition, during
       closing argument, plaintiff’s counsel made clear there were two claims, with two different
       burdens of proof, and that the disposition-of-remains claim required proof of willful conduct.
       In fact, during closing argument, one of plaintiff’s counsels transitioned from the medical
       negligence claim to the disposition-of-remains claim by alerting the jury that co-counsel
       would address them on the willful and wanton part of the case. Counsel then repeatedly
       reminded the jury that this was a willful and wanton claim, separate and distinct from the
       negligence claim. Viewing the instructions as a whole and the argument on those
       instructions, we cannot say that the instruction in question misled the jury.


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¶ 43        Defendant hospital next contends the trial court erred in giving a missing evidence
       instruction (Illinois Pattern Jury Instructions, Civil, No. 5.01 (2006) (hereinafter IPI Civil
       (2006) No. 5.01)). This instruction allows the jury to infer that any evidence not offered, but
       within the control of a party, is adverse to that party. First National Bank of LaGrange v.
       Lowrey, 375 Ill. App. 3d 181, 210 (2007). An IPI Civil (2006) No. 5.01 instruction is
       warranted only if there is no reasonable excuse for failure to produce the evidence. Ahmed
       v. Pickwick Place Owners’ Ass’n, 385 Ill. App. 3d 874, 893 (2008).
¶ 44        Plaintiff requested the trial court to instruct the jury as to missing documents that should
       have been included in the infant’s medical chart, such as various expiration documents and
       Ms. Griggers’ handwritten notes, which she testified she had made documenting her
       telephone calls to plaintiff. Defendant hospital maintains the trial court erred in giving this
       instruction because it had a reasonable explanation as to why Ms. Griggers’ handwritten
       notes were not available, namely, nothing in its rules required her to make or retain notes of
       her telephone conversations. This argument does not help defendant hospital. The missing
       evidence instruction does not require as a predicate for its use that some rule require that the
       missing evidence be maintained.
¶ 45        Ms. Griggers and the hospital failed to explain why the handwritten notes could not be
       located and that was one of the bases for the instruction. In addition to the handwritten notes,
       there were other documents missing from the infant’s medical chart and no explanations
       were given as to why they were not produced at trial. The trial court did not err in giving the
       missing evidence instruction.
¶ 46        Defendant hospital next contends the trial court erred by limiting the testimony of Ms.
       Griggers as to her explanation of why the infant’s death certificate was altered to indicate no
       autopsy had been requested. The death certificate contains a checkbox which can be marked
       to indicate a request for an autopsy. The checkbox on the final, white copy of the infant’s
       death certificate was marked “yes.” The checkbox on the yellow worksheet for the infant was
       initially checked “yes,” to indicate an autopsy had been requested, but the “yes” was
       scratched out by hand, and “no” was marked over “yes” to reflect that no autopsy was
       requested. Ms. Griggers gave conflicting testimony as to whether she believed she made the
       handwritten changes and scratch outs.
¶ 47        When defense counsel asked Ms. Griggers to explain the discrepancy between the two
       documents, plaintiff’s counsel objected on the ground that Griggers previously testified she
       had no independent recollection of who made the handwritten changes. The objection was
       sustained and a sidebar discussion followed outside the presence of the jury.
¶ 48        During the sidebar, defense counsel argued that Ms. Griggers should be allowed to testify
       that the discrepancies between the two documents were attributable to a mistake. Plaintiff’s
       counsel disagreed and argued that the discrepancies were not necessarily the result of a
       mistake, but that the worksheet could have been purposely altered to reflect that no autopsy
       was requested. Plaintiff’s counsel also pointed out that Griggers had testified that she had no
       independent recollection of who made the handwritten changes. The trial court sided with
       plaintiff’s counsel and ruled that Ms. Griggers would not be allowed to testify that the
       discrepancies between the two documents was attributable to a mistake. However, the trial


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       court ruled that defense counsel could make such an argument.
¶ 49       In regard to this issue, defendant hospital fails to explain how a witness who admits she
       has no independent recollection of a particular event is in a position to explain something
       about the event. We find the trial court properly limited Ms. Griggers’ testimony.
¶ 50       Defendant hospital next contends plaintiff’s counsel made improper and prejudicial
       arguments during closing. The purpose of closing argument is to draw reasonable inferences
       from the evidence and to assist the jury in fairly arriving at a verdict based on the law and
       evidence. Copeland v. Stebco Products Corp., 316 Ill. App. 3d 932, 948 (2000). As a result,
       counsel is afforded wide latitude during closing argument and may comment and argue on
       the evidence and any reasonable inferences that may be fairly drawn from the evidence.
       Clarke v. Medley Moving & Storage, Inc., 381 Ill. App. 3d 82, 95 (2008). “The scope of
       closing argument is within the sound discretion of the trial court and the reviewing court will
       reverse only if the argument is prejudicial.” (Internal quotation marks omitted.) O’Neil v.
       Continental Bank, N.A., 278 Ill. App. 3d 327, 340 (1996).
¶ 51       In his closing argument, plaintiff’s counsel argued that Ms. Griggers failed to follow
       mandatory hospital protocol concerning the handling of deceased patients’ remains and that
       this failure caused plaintiff’s infant daughter to be buried without her consent and without
       performing a requested autopsy. Counsel suggested an autopsy might have revealed the
       infant was not suffering from an idiopathic or preexisting condition.
¶ 52       Defendant hospital complains that plaintiff’s counsel’s closing argument confused the
       jury and allowed jurors to consider the hospital’s alleged negligence in deciding the
       disposition of remains claim. We disagree, essentially for the same reasons we rejected
       defendant hospital’s contentions regarding the institutional negligence jury instruction.
       Defendant hospital was not prejudiced by this closing argument since there is no indication
       in the record that the jury was confused by the evidence.
¶ 53       Defendant hospital also takes issue with the portion of plaintiff’s counsel’s closing
       argument where he suggested that the documents missing from the infant’s medical chart
       would have established that plaintiff requested an autopsy and she never gave the hospital
       consent to remove her daughter’s remains. Defendant hospital maintains the closing
       argument improperly raised the specter of a conspiracy. We disagree.
¶ 54       In closing argument, counsel may draw inferences from the evidence. Rockwood v. Singh,
       258 Ill. App. 3d 555, 558 (1993). Plaintiff’s counsel’s closing remarks about the missing
       documents were proper because the remarks were based on permissible inferences from the
       evidence presented at trial. In this case, the jury was allowed to draw adverse inferences from
       the fact that certain hospital documents and alleged handwritten notes were missing from the
       infant’s medical chart.
¶ 55       Defendant hospital next contends the trial court erred in failing to grant its motion for a
       new trial on damages. The decision to grant a new trial solely on the issue of damages is
       within the trial court’s discretion and will not be disturbed absent an abuse of that discretion.
       Vacala v. Village of LaGrange Park, 260 Ill. App. 3d 599, 616 (1994). “A jury’s award of
       damages will not be overturned unless it is against the manifest weight of the evidence.”
       Napcor Corp. v. JP Morgan Chase Bank, NA, 406 Ill. App. 3d 146, 157 (2010). A verdict

                                                 -11-
       is against the manifest weight of the evidence where the opposite conclusion is clearly
       evident or where the findings of the jury are unreasonable, arbitrary and not based upon any
       of the evidence. Maple v. Gustafson, 151 Ill. 2d 445, 452-53 (1992).
¶ 56        Our courts have repeatedly held that the amount of damages to be assessed is peculiarly
       a question of fact for the jury to determine and that great weight must be given to the jury’s
       decision. Snelson v. Kamm, 204 Ill. 2d 1, 36-37 (2003). “[I]n the context of a damages award,
       we will not upset a jury’s verdict unless: (1) the jury ignored a proven element of damages;
       (2) the verdict resulted from passion or prejudice; or (3) the award bore no reasonable
       relationship to the loss.” Rodriguez v. Northeast Illinois Regional Commuter R.R. Corp.,
       2012 IL App (1st) 102953, ¶ 55.
¶ 57        Defendant hospital first argues the jury’s damage award was not supported by the
       evidence because the plaintiff’s alleged emotional distress was uncorroborated since she “did
       not reference any physical or emotional injuries that required even a single visit to a
       healthcare provider or counselor.” We disagree. Plaintiff testified she was horrified and
       depressed after visiting the cemetery and sought care for depression. Moreover, the absence
       of medical treatment does not preclude recovery for emotional distress. See Von Seggren v.
       Smith, 151 Ill. App. 3d 813, 816 (1987) (although plaintiff consulted with her pastor, she
       never saw a doctor, psychiatrist, psychologist, or counselor concerning her mental distress
       over the handling of her mother’s cremated remains).
¶ 58        Evidence was presented that plaintiff visited her infant daughter in the neonatal intensive
       care unit all 33 days the infant was alive. This was plaintiff’s first child. Plaintiff testified
       that her daughter’s death affected her in ways she could not fully describe and stated, “I never
       knew I could hurt this bad.” Plaintiff sought help for depression. Plaintiff testified that her
       daughter’s remains were subsequently buried in a mass, unmarked grave without her
       knowledge or consent and without a requested autopsy.
¶ 59        Michael McReynolds of the Cook County medical examiner’s office testified that the
       infant’s body was brought to the medical examiner’s office on April 18, 2003, and remained
       there until May 2, 2003, inside a fetal storage box along with fetuses, other babies, and
       amputated limbs. None of the bodies or remains were embalmed and they decomposed at a
       fast rate because they were piled in box. The fetal storage box containing the remains of
       plaintiff’s infant daughter was buried in a mass grave. In response to the question as to
       whether he was ever asked to unseal one of the fetal storage boxes, McReynolds responded
       “yes,” but added, “It’s–it’s pretty grim. They decompose. There is a liquid. There is a smell.
       It’s–I can’t imagine anyone recognizing an individual out of it, out of a package like that.”
¶ 60        Plaintiff stated the area of the cemetery she visited smelled like a slaughter house, with
       the “worst horrid smell,” and she was horrified. Plaintiff testified the hospital’s actions made
       it impossible to give her daughter a proper burial and to have her daughter’s remains buried
       in the family plot. Considering plaintiff’s testimony with the facts of the case and the jurors’
       personal experiences, we believe the jury could reasonably find that the circumstances of this
       case caused plaintiff emotional distress. Thornton v. Garcini, 237 Ill. 2d 100, 109 (2009).
¶ 61        Defendant hospital further contends that the evidence of plaintiff’s emotional distress
       was limited and did not warrant the amount of damages awarded because she did not


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       sufficiently articulate her emotional distress or describe in detail the emotional trauma she
       allegedly suffered. This argument is meritless. The fact that a plaintiff testifies only briefly
       about an emotional injury does not necessarily lessen the severity of the injury. Reinneck v.
       Taco Bell Corp., 297 Ill. App. 3d 211, 218-19 (1998).
¶ 62        Defendant hospital urges us to compare damage awards handed down in other cases as
       a means of determining whether the jury’s damage award in this case was excessive. We note
       that courts in Illinois have traditionally declined to compare damages awarded in one case
       to damages awarded in other cases in determining whether a particular award is excessive.
       Richardson v. Chapman, 175 Ill. 2d 98, 114 (1997). We decline to do so here.
¶ 63        Considering all the evidence, we cannot say the jury’s damage award was against the
       manifest weight of the evidence. The trial court did not abuse its discretion by declining to
       grant a new trial on the issue of damages.
¶ 64        Alternatively, defendant hospital argues the trial court erred in refusing to order a greater
       remittitur. On cross-appeal, plaintiff maintains the trial court abused its discretion in ordering
       the remittitur in the first place.
¶ 65        As mentioned, our courts have consistently held that the amount of damages to be
       assessed is peculiarly a question of fact for the jury to determine and that great weight must
       be given to the jury’s decision. See Snelson, 204 Ill. 2d at 36-37. However, the deference
       given to the deliberative process of the jury is overcome if, after examining the evidence
       presented at trial, the trial court determines the jury verdict is excessive. Best v. Taylor
       Machine Works, 179 Ill. 2d 367, 412 (1997). “Under such circumstances the trial court has
       a duty to correct the excessive verdict, and may do so by ordering a remittitur of a portion
       of the damages, with the plaintiff’s consent.” Id. at 413.
¶ 66        “A remittitur is an agreement by the plaintiff to relinquish, or remit, to the defendant that
       portion of the jury’s verdict which constitutes excessive damages and to accept the sum
       which has been judicially determined to be properly recoverable damages.” Tri-G, Inc. v.
       Burke, Bosselman & Weaver, 222 Ill. 2d 218, 253 (2006). “The purpose of a remittitur is to
       correct excessive jury verdicts in limited and appropriate circumstances.” Clarke, 381 Ill.
       App. 3d at 96. A plaintiff’s consent to a remittitur is not necessarily a concession that the
       damages were excessive. Haid v. Tingle, 219 Ill. App. 3d 406, 411 (1991). The issue as to
       whether a remittitur should be ordered is determined on a case-by-case basis, because the
       evidence and circumstances supporting verdicts must be carefully examined before a jury’s
       assessment of damages is reduced. Best, 179 Ill. 2d at 413.
¶ 67        A remittitur should be ordered only when a jury’s award falls outside the range of fair
       and reasonable compensation, appears to result from passion or prejudice, or is so large that
       it shocks the judicial conscience. Klingelhoets v. Charlton-Perrin, 2013 IL App (1st) 112412,
       ¶ 67. A jury’s award will not be subject to remittitur where it falls within the flexible range
       of conclusions which can be reasonably supported by the facts, since the assessment of
       damages is primarily an issue of fact for jury determination. Best, 179 Ill. 2d at 412.
¶ 68        In this case, the jury returned a verdict in favor of plaintiff in the amount of $4.6 million.
       The trial court determined the award fell outside the limits of reasonable compensation and
       ordered a remittitur of $1.6 million, reducing the judgment to $3 million, which the plaintiff

                                                  -13-
       accepted. The standard of review regarding a trial court’s ruling on a motion for remittitur
       is abuse of discretion. In re Estate of Oglesby, 408 Ill. App. 3d 655, 661 (2011). An abuse
       of discretion occurs when a trial court’s ruling is arbitrary, fanciful, or unreasonable, or
       where no reasonable person would take the view adopted by the trial court. Patton v. Lee,
       406 Ill. App. 3d 195, 199 (2010). “ ‘In determining whether there has been an abuse of
       discretion, we may not substitute our judgment for that of the trial court, or even determine
       whether the trial court exercised its discretion wisely.’ ” Clarke, 381 Ill. App. 3d at 95
       (quoting Simmons v. Garces, 198 Ill. 2d 541, 568 (2002)).
¶ 69       We do not believe the trial court abused its discretion either in ordering a remittitur, or
       in the amount of the remittitur ordered. The fact that the trial court ordered a remittitur did
       not establish that the verdict was the result of passion and prejudice by the jury (Jensen v.
       Richardson, 93 Ill. App. 2d 237, 241 (1968)), or was so large that it shocked the judicial
       conscience. The trial court, having heard and observed the witnesses, as well as the jury’s
       reactions, was in a far superior position than this court to judge the severity of the plaintiff’s
       emotional distress and make an informed decision regarding a remittitur. Under the facts and
       circumstances presented to us, we decline to interfere with the amount of the judgment as
       ordered by the trial court on remittitur.
¶ 70       For the foregoing reasons, we affirm the judgments of the circuit court of Cook County.

¶ 71       Affirmed.

¶ 72        JUSTICE GORDON, dissenting.
¶ 73        I must respectfully dissent on one issue and one issue only. The trial court may have erred
       in striking Dr. Meadow’s testimony that Valentina’s hospital chart contained no record of
       a request for an autopsy. The trial court struck the entire line of questioning because Dr.
       Meadow was not asked about an autopsy at his deposition. Dr. Meadow was a treating
       physician and his answers to Rule 213 interrogations disclosed that Dr. Meadow would be
       testifying regarding his care and treatment of the infant, as set forth in the medical records
       and his deposition. The trial court found that defendants violated Rule 213 by not disclosing
       that Dr. Meadow would testify to the hospital’s custom and practice concerning autopsies.
¶ 74        “The admission of evidence pursuant to Rule 213 is within the sound discretion of the
       trial court and the court’s ruling will not be disturbed absent an abuse of discretion.” Zickuhr
       v. Ericsson, Inc., 2011 IL App (1st) 103430, ¶ 79 (citing Sullivan v. Edward Hospital, 209
       Ill. 2d 100, 109 (2004)). “An abuse of discretion occurs when no reasonable person would
       take the view adopted by the court.” Trettenero v. Police Pension Fund, 333 Ill. App. 3d 792,
       801 (2002) (citing In re Marriage of Blunda, 299 Ill. App. 3d 855, 865 (1998)). “Rule 213
       disclosure requirements are mandatory and subject to strict compliance by the parties.”
       Zickuhr, 2011 IL App (1st) 103430, ¶ 79 (citing Sullivan, 209 Ill. 2d at 109).
¶ 75        “However, the failure to comply with Rule 213 does not automatically require the
       exclusion of the noncomplying party’s witnesses or testimony.” Zickuhr, 2011 IL App (1st)
       103430, ¶ 80.


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           “Our supreme court has held that in determining whether the exclusion of a witness or
           testimony is a proper sanction for nondisclosure, the court ‘must consider’ the following
           factors: (1) the surprise to the adverse party; (2) the prejudicial effect of the testimony;
           (3) the nature of the testimony; (4) the diligence of the adverse party; (5) the timely
           objection to the testimony; and (6) the good faith of the party calling the witness.”
           Zickuhr, 2011 IL App (1st) 103430, ¶ 80 (citing Sullivan, 209 Ill. 2d at 110).
¶ 76       If the trial court utilized the six Sullivan factors, there is nothing in the record that
       discusses those factors. In order to strike or bar this information, the trial court was required
       to utilize those factors. Sullivan, 209 Ill. 2d at 110. As a result, I would remand this case back
       to the circuit court of Cook County to explain how this information can be barred under the
       Sullivan factors. There is nothing in the record that provides this court with the information
       to determine whether the trial court utilized those factors or not. If the information that this
       witness was going to offer should have been admitted, then I believe defendants were
       prejudiced and should receive a new trial.




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