                                                                             THIRD DIVISION
                                                                             September 29, 2006




Nos. 1-04-3640 and 1-05-0061 cons.


ROBERT MOLLER, Individually, and as                          )       Appeal from
Executor of the Estate of Hope Moller,                       )       the Circuit Court
Deceased,                                                    )       of Cook County.
               Plaintiff-Appellee/Cross-Appellant,           )
                                                             )
       v.                                                    )       No. 00 L 13564
                                                             )
SERGEI LIPOV and KEY MEDICAL GROUP,                          )
LTD.,                                                        )       Honorable
                                                             )       Tom Chiola,
               Defendants-Appellants/Cross-Appellees.        )       Judge Presiding.


       PRESIDING JUSTICE THEIS delivered the opinion of the court:

       This appeal arises from a wrongful death and survival action filed by plaintiff, Robert

Moller, individually and as executor of the estate of his wife, Hope Moller, against defendants

Sergei Lipov and Key Medical Group, Ltd. Plaintiff alleged that Dr. Lipov negligently failed to

timely diagnose, treat, and refer Moller with regard to her breast cancer, and that Key Medical

Group, Ltd. was vicariously liable for his negligence. Defendants filed an affirmative defense,

raising Moller=s comparative fault in failing to follow the treatment recommendations of Dr.

Lipov. The jury returned a verdict in plaintiff=s favor and awarded $3 million in damages, which

was reduced to $1.5 million to reflect the jury=s finding that Moller was 50% at fault.

       On appeal, defendants contend that: (1) the trial court erred in denying their motions for

directed verdict or judgment n.o.v. where plaintiff=s expert was not qualified and failed to

establish that any deviation of the standard of care was a proximate cause of Moller=s death; (2)
1-04-3640 and 1-05-0061 cons.

the verdict was against the manifest weight of the evidence; (3) the admission of unfounded

causation opinions was reversible error; and (4) counsel=s inflammatory closing argument

deprived defendants of a fair trial.

        On cross-appeal, plaintiff contends that the trial court erred in: (1) denying his motion to

strike defendants= affirmative defense of comparative negligence; (2) denying his motion for a

directed verdict regarding comparative negligence; and (3) denying his request for costs related

to the health professional=s report under section 2-622 of the Code of Civil Procedure (the Code)

(735 ILCS 5/2-622 (West 2004)). For the following reasons, we affirm the judgment of the

circuit court.

BACKGROUND

        Hope Moller was 34 years old when she initially established a physician-patient

relationship with Dr. Lipov in March 1998 for a thyroid condition. On January 28, 1999, Moller

returned to Dr. Lipov, complaining of right breast tenderness and pain in one specific location.

Dr. Lipov recorded that Moller had a hard, tender, one-centimeter mass in her right breast and

her lymph nodes were negative. He did not record how long the mass had been present, whether

it had changed since Moller first noticed it, how it was affected by menstruation, the specific

location of the mass, whether Moller was taking birth control or other medications, the mobility

or attachment of the mass, signs of infection, the consistency of the mass, or whether there was

any dimpling or nipple discharge. Nevertheless, Dr. Lipov testified that it was his custom and

practice to consider all of these items during an exam. Dr. Lipov thought that the mass was

probably an inflammation of the breast tissue. He scheduled Moller for a mammogram because



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she was concerned about the mass, and instructed her to administer warm applications to it. His

records indicate that he advised her to return to see him in 10 days Aif not better, if the lesion gets

bigger.@

         On February 4, 1999, Moller had a mammogram and an ultrasound which revealed two

nodules in the right breast; one nodule in the nine o=clock position and the other in the six

o=clock position, the area where the mass had been felt. Dr. Patrick Para, the radiologist who

interpreted the mammogram and ultrasound, stated that the two nodules were solid, similar in

appearance, and most likely related to a benign tumor. Dr. Para stated in his report that if the

mass was clinically suspicious, a biopsy was recommended. It was his opinion that had Moller

presented with a mass that had been persistent over two menstrual cycles, that fact would have

increased the index of suspicion that the mass was cancer and would require a biopsy. Dr. Lipov

testified that he had a telephone conversation with Moller on February 5, 1999, the day he

received the mammogram and ultrasound results. He informed Moller that the mass was

probably benign, but told her that Awe need to follow up,@ and asked her to return if the mass did

not get better. His notes indicated that Moller=s breast was less tender and that she should return

to the clinic if the mass increased in size.

         On April 3, 1999, Moller came to see Dr. Lipov complaining of fatigue related to her

thyroid condition. Moller did not mention any problems with her breast and Dr. Lipov did not

examine her breasts at that visit. He suspected that her symptoms were related to sleep apnea

and suggested that she lose weight. He instructed her to return in one month for a follow-up

visit.



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       Moller=s husband testified that between January and June, he observed Moller examining

her breasts and that the pain from the mass continually worsened between February and June, to

the point that she could not hug her children or wear a bra. Moller=s mother testified that Moller

knew how to perform a breast exam and that between February and June 1999, Moller=s

increasing pain affected her housework, her time with her children, and her ability to wear a bra.

During this time period, Moller=s mother tried to get Moller to see another doctor.

       Moller did not see Dr. Lipov again until June 17, 1999. At that time, she complained of

pain in her chest. Dr. Lipov examined her breasts and found that the mass in her right breast had

greatly increased in size. It measured 4.5 centimeters. The mass was tender, adherent, and was

visibly protruding from the rest of the breast. Dr. Lipov recalls the appointment and recalls

asking her why she waited so long to come in and she said, Asomething to the extent of, I thought

it was getting better.@ Dr. Lipov referred Moller to a surgeon, Dr. Andrew Kramer, who

performed a biopsy, which was positive for breast cancer.

       Dr. Kramer performed a modified radical mastectomy on Moller on June 25, 1999.

During that procedure, he removed her right breast along with 35 lymph nodes. None of the

removed lymph nodes contained cancer, and there was no evidence of metastasis. Thereafter,

Dr. Aslam S. Zahir administered chemotherapy to Moller from August 1999 to October 1999. In

April 2000, Moller had breast reconstructive surgery, but by November 2000, tests results

revealed signs that the cancer had spread. Thereafter, Moller was treated by another oncologist,

Dr. Melody Cobleigh. By February 2001, Moller=s cancer had spread to her lungs and had

recurred in the chest wall. She was given chemotherapy to shrink the tumor and prevent further



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spread of the disease. She ultimately died on July 22, 2001, due to metastatic breast cancer.

         Plaintiff=s expert, Dr. Arthur Rossof, testified that he is board-certified in internal

medicine, oncology and hematology and practices in the subspecialties of oncology and

hematology. It was his opinion that Dr. Lipov deviated from the standard of care by failing to

obtain a reasonable history, failing to perform a reasonable physical examination, and failing to

include Moller=s breast problem on a Aproblem list.@ Additionally, it was Dr. Rossof=s opinion

that Dr. Lipov deviated from the standard of care by failing to refer Moller to a surgeon for a

biopsy on January 28, 1999, when she presented to Dr. Lipov with the mass, deviated again on

February 4, 1999, when he received the mammogram/ultrasound results, and again on April 3,

1999, when Moller presented in his office complaining of fatigue. Dr. Rossof further testified

that these negligent acts caused and contributed to the delay in diagnosis of breast cancer, the

need for a radical mastectomy rather than a lumpectomy, the spread of cancer, and her ultimate

death.

         Specifically, Dr. Rossof was critical of Dr. Lipov=s care on January 28 because there was

nothing in his records to indicate that a proper history was obtained. Dr. Rossof stated that it

was important for diagnostic purposes to determine how long the mass had been there and

whether it had changed over the course of Moller=s menstrual cycle. It was his opinion that had

the proper history been taken, Dr. Lipov would have had known that her mass had been there

since November or December 1998, unchanged over two menstrual cycles. Given that

knowledge, it would have raised Dr. Lipov=s index of suspicion for cancer. When asked what

the standard of care required in terms of evaluation, Dr. Rossof stated that in addition to the



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mammogram, Dr. Lipov should have referred her to Dr. Kramer on January 28 for a biopsy.

       In addition, Dr. Rossof was critical of Dr. Lipov=s care on February 4, 1999, after

receiving the results of the mammogram. The results revealed that the mass was a solid lesion

which, in his opinion, created another high risk feature, and was therefore clinically suspicious.

As a result, given that she had a persistent mass since at least December, Moller should have

been reexamined within a relatively short period of time and/or referred to somebody else more

familiar with identifying breast cancer at that time for a biopsy. In Dr. Rossof=s opinion, it was

not enough to tell Moller to come back if the mass got bigger because she was not a skilled

observer and Dr. Lipov should not have waited for it to grow. Dr. Rossof also agreed that if the

mass had persisted for another month, Moller needed to be referred to a surgeon for a biopsy. A

referral should have been made within the month, no later than March 7, 1999.

       Further, it was Dr. Rossof=s opinion that if the tumor had been removed in January or

February of 1999, Moller=s cancer would have been over 90% curable. He based his opinion on

several factors, including his experience, statistics, the TNM method of staging the cancer,

meaning the size of the tumor, the fact that Moller had no known metastatic disease, and no

lymph node involvement. Dr. Rossof explained that during January and February, the cancer

was a Stage I, referring to the 1.5 centimeter size of the tumor. It was his opinion that over 90%

of Stage I cancers are curable regardless of the grade of the tumor. He believed that the cancer

could have been a Grade I at that time and later deteriorated to a Grade III. Nevertheless, even if

it was a Grade III, meaning that it had all the same negative characteristics it had when it was

ultimately diagnosed in June, it was still curable. Additionally, Dr. Rossof stated that had Moller



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been diagnosed in January or February 1999, a lumpectomy would have been an option due to

the smaller size of the tumor and she could have avoided the complications that resulted from the

modified radical mastectomy procedure.

        Dr. Rossof further testified that the size of the tumor was an important prognostic

indicator. Although between February and June 1999 he could not determine the rate of growth,

there was definitely growth. It was his opinion that the statistical likelihood of a cure for a Stage

II tumor surgically removed, with aggressive treatment, was 75%. As of February 4, Moller=s

tumor was four millimeters short of being a Stage II cancer, and if it grew four millimeters from

February 4 to March 7, he agreed that it would be a Stage II cancer. Stage II cancers range

between two centimeters and five centimeters in diameter. It was Dr. Rossof=s opinion that,

although at Stage II Moller=s cancer treatment would have been the same as the treatment given

in June, her prognosis would still have been better than it was in June. He explained that even

though a tumor of 2.1 centimeters and a tumor of 4.9 centimeters are both Stage II, there can be

a difference in the outcome. Chemotherapy given after a 2 centimeter tumor has been surgically

removed will have a better outcome than chemotherapy given after a 4.5 centimeter tumor has

been removed because a smaller tumor is likely to shed fewer cancer cells than a larger tumor,

and there are fewer cells to kill.

        Dr. Kramer testified that, in his opinion, the higher the stage and grade of the cancer, the

lower the survival rate. Moller had a Grade III cancer cell, which is the most aggressive cell

type. It was his opinion that since the cancer was Grade III in June, it would most likely have

been Grade III in January and February. He agreed that it would be difficult to determine



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Awhether the grade of cancer plays into its being cured.@ Moller=s particular cancer was resistant

to the chemotherapy that she had. It was Dr. Kramer=s opinion that if the surgery had been done

in February, Moller=s particular type of cancer would have been resistant to treatment at that time

as well. Nevertheless, he agreed that the cure rate for breast cancer with surgery and

chemotherapy is higher for smaller tumors than for larger tumors.

        Dr. Zahir testified that the grade of the tumor is very important in the treatment of breast

cancer. The higher the grade, the more unpredictable it might be, meaning that the patients can

have a higher risk of recurrence. Moller=s test results revealed that she had several

characteristics indicative of a fast-growing, treatment-resistant cancer, and it was his opinion that

these characteristics would have been the same if the cancer was removed in February or March

1999. Dr. Zahir explained that had Moller been diagnosed with cancer in March 1999, he would

have administered the same chemotherapy treatment that he administered in August 1999. He

further stated that if the tumor comes back within one year of treatment, it is considered to be

resistant to treatment from the beginning. Thus, it was his opinion that the treatment would have

been ineffective had she had it at an earlier time. With respect to the stage of the cancer, Zahir

testified that Moller=s tumor was a Stage II in June 1999, no nodes were affected, and there was

no metastasis at that time. Therefore, it could be extrapolated that no nodes would have been

affected and there was no metastasis in February 1999.

       Dr. Cobleigh opined that there is debate about whether the grade of the tumor has any

independent prognostic significance beyond the size of the tumor and the lymph node status. In

her opinion, lymph node status and the size of the tumor are the most important prognostic



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factors.

           Defense expert Dr. Jeffrey Kopin testified that he is board-certified in internal medicine

and has practiced in that area for 17 years. It was his opinion that Dr. Lipov complied with the

standard of care on January 28 by taking Moller=s history, giving her a physical exam, ordering a

mammogram, and giving her appropriate follow-up instructions. She had no high risk factors for

cancer, she was young, and had no family history of breast cancer. In his opinion, nothing about

her presentation was clinically suspicious.

           Additionally, Dr. Kopin testified that Dr. Lipov complied with the standard of care on

February 5 by telling her the results of the mammogram and ultrasound and instructing her to

return if the mass got bigger. She was the one who found the mass in the first instance and,

therefore, could appreciate a change. In Dr. Kopin=s opinion, there was no reason to set an

appointment for a date certain to return because, according to the tests, these were benign masses

and the patient reported a decrease in tenderness, which would indicate she was getting better.

Additionally, he stated that it was very unusual for two masses to appear on an ultrasound as

cancer. It was Dr. Kopin=s opinion that there was no clinical suspicion of cancer at this time.

Dr. Kopin agreed that if the mass had persisted unchanged for two menstrual cycles, that would

make the mass possibly more suspicious. Nevertheless, it was his opinion that even if she had a

persistent mass, it would be reasonable to have her come back after another menstrual cycle to

reexamine the mass or it would be reasonable to chose instead to order a mammogram and

ultrasound, which is ultimately what was ordered.

           Furthermore, Dr. Kopin testified that Dr. Lipov complied with the standard of care on



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April 3. It was Kopin=s opinion that Moller presented to Dr. Lipov with a specific problem

related to her thyroid, he addressed that problem, and he was not required to examine her breast

on that date. As far as Dr. Lipov was concerned, after the testing and instructions he gave her,

that issue was resolved. There was no evidence in the record that Moller ever called Dr. Lipov

to report a painful breast mass.

       Defense expert Dr. William Gradishar testified as a board-certified oncologist regarding

causation. It was his opinion that Moller=s death was related to the specific biology and clinical

course of her disease, and that the outcome likely would have been the same even if she had been

referred to a surgeon for a biopsy as early as November or December 1998. Dr. Gradishar based

his opinion on the characteristics of Moller=s tumor as well as her age, which all led to a poor

prognosis. It was his opinion that these characteristics would more likely than not have been the

same had the tumor been removed as early as December 1998. He did not necessarily agree with

the opinion that the smaller the tumor, the more responsive it is to chemotherapy. Rather, in

Gradishar=s opinion, the characteristics of the tumor and the biology of the disease dictate

whether the patient will respond to therapy. Nevertheless, he agreed that the two most important

factors in determining prognosis are the size of the primary tumor and the presence or absence of

lymph node involvement.

       At the close of the case, the jury returned a verdict in favor of plaintiff in the amount of

$3 million, but the verdict was reduced by 50% for a total of $1.5 million due to the jury=s

finding that Moller was contributorily negligent. Defendants filed a timely notice of appeal,

plaintiff filed a cross-appeal, and this court granted defendants= motion to consolidate the two



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appeals.

ANALYSIS

       Defendants contend that the trial court erred in denying their motions for a directed

verdict and for judgment n.o.v. or in the alternative a new trial. We begin our review of

defendants= claims by setting forth the standards for granting each of these forms of relief.

       A[V]erdicts ought to be directed and judgments n.o.v. entered only in those cases in which

all of the evidence, when viewed in its aspect most favorable to the opponent, so

overwhelmingly favors [a] movant that no contrary verdict based on that evidence could ever

stand.@ Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14

(1967). Because the standard for entry of judgment n.o.v. is high, judgment n.o.v. is

inappropriate if A >reasonable minds might differ as to inferences or conclusions to be drawn

from the facts presented.= @ York v. Rush-Presbyterian-St. Luke=s Medical Center, No. 99507,

slip op. at 25 (June 22, 2006), quoting Pasquale v. Speed Products Engineering, 166 Ill. 2d 337,

351, 654 N.E.2d 1365, 1374 (1995). AIn making this assessment, a reviewing court must not

substitute its judgment for the jury's, nor may a reviewing court reweigh the evidence or

determine the credibility of the witnesses.@ Donaldson v. Central Illinois Public Service Co., 199

Ill. 2d 63, 89, 767 N.E.2d 314, 331 (2002). We apply a de novo standard of review to the trial

court's denial of a motion for directed verdict as well as its denial of a motion for judgment n.o.v.

 Donaldson, 199 Ill. 2d at 89, 767 N.E.2d at 330; Gathings v. Muscadin, 318 Ill. App. 3d 1091,

1093, 743 N.E.2d 659, 660 (2001).

       A new trial should be granted only when the verdict is contrary to the manifest weight of



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the evidence. York, slip op. at 25. A verdict is contrary to the manifest weight of the evidence

when the opposite conclusion is clearly evident or when the jury's findings are unreasonable,

arbitrary and not based upon any of the evidence. York, slip op. at 25. A reviewing court will

not reverse a circuit court's decision with respect to a motion for a new trial unless it finds that

the circuit court abused its discretion. York, slip op. at 25.

       With this procedural framework in mind, we turn to the merits of the appeal. Defendants

argue that Dr. Rossof lacked the requisite qualifications to render opinions in this case. Initially,

we note that defendants never filed a motion in limine regarding his qualifications, never

objected to his qualifications during trial, and never raised this issue in their motion for directed

verdict. Dr. Rossof=s qualifications were raised for the first time in defendants= posttrial motion.

A[A] >party cannot sit on his hands and let perceived errors into the record and complain of those

errors for the first time in a post-trial motion.= @ Taluzek v. Illinois Central Gulf R.R. Co., 255

Ill. App. 3d 72, 82, 626 N.E.2d 1367, 1375 (1993), quoting Pharr v. Chicago Transit Authority,

220 Ill. App. 3d 509, 515, 581 N.E.2d 162, 166 (1991).

       A primary purpose of the waiver rule is to ensure that the trial court has the opportunity

to correct the error. York v. El-Ganzouri, 353 Ill. App. 3d 1, 10, 817 N.E.2d 1179, 1188 (2004).

A trial court cannot correct the error and prevent prejudice when the objection is not made as the

error occurs. York, 353 Ill. App. 3d at 10, 817 N.E.2d at 1188. This purpose is especially

relevant here where the trial court was never asked to determine whether Dr. Rossof met the

foundational requirements to testify.

       Moreover, we note that prior to trial, defendants filed a motion in limine to bar plaintiff=s



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other retained expert because his testimony was duplicative of the testimony of Dr. Rossof. Had

Dr. Rossof=s qualifications been objected to at that time, plaintiff would have had an opportunity

to present his other retained expert. Accordingly, where the record reveals that defendants failed

to object to Dr. Rossof=s qualifications at trial, we find this issue has been forfeited on appeal.

Snelson v. Kamm, 204 Ill. 2d 1, 25, 787 N.E.2d 796, 809 (2003); Mundell v. La Pata, 263 Ill.

App. 3d 28, 33, 635 N.E.2d 933, 938 (1994).

       We next address defendants= contentions regarding causation. Specifically, defendants

argue that Dr. Rossof=s testimony left a Afatal gap@ between the conduct he claimed fell outside

the standard of care and the conduct that caused or contributed to Moller=s death. In a medical

negligence case, the plaintiff must establish that it is more probably true than not true that the

defendant=s negligence was a proximate cause of the injury. Borowski v. Von Solbrig, 60 Ill. 2d

418, 424, 328 N.E.2d 301, 305 (1975). The proximate cause element of a medical malpractice

case must be established by expert testimony to a reasonable degree of medical certainty.

Northern Trust Co. v. University of Chicago Hospitals & Clinics, 355 Ill. App. 3d 230, 242, 821

N.E.2d 757, 768 (2004).

       Here, defendants direct our attention to Dr. Rossof=s testimony that the outside limit of

the standard of care would have permitted Dr. Lipov to wait until March 7, 1999, to refer Moller

for a biopsy. At that time, Dr. Rossof agreed the cancer would have likely been at Stage II, and

Dr. Rossof could not state to a reasonable degree of medical certainty whether it was possible

that the tumor was curable only a few weeks later by the April 3 visit.

       Although we recognize that Dr. Rossof gave conflicting testimony regarding the standard



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of care, we do not find a Afatal gap@ in the evidence. There was some evidence in the record,

taken in the light most favorable to the plaintiff, to support the jury=s findings that defendants

were negligent and that negligence proximately caused or contributed to cause Moller=s injuries.

In addition, we hold that the circuit court did not abuse its discretion in denying defendants=

motion for a new trial on this basis.

        Dr. Rossof testified that Dr. Lipov deviated from the standard of care by failing to take a

complete history of Moller when she presented on January 28, 1999. Had he taken the requisite

history, he would have known that this mass had persisted over two menstrual cycles, which was

a sign that the mass was clinically suspicious. Both Dr. Para and Dr. Kopin agreed that such a

persistent mass could raise the index of clinical suspicion. In addition, Dr. Rossof stated that the

results of the mammogram on February 4 revealed that the nodule was solid, another sign that

the mass was suspicious for cancer. Given these two indicators, and given Dr. Para=s report that

the mass should be investigated further if clinically suspicious, Dr. Rossof stated that Dr. Lipov

deviated from the standard of care by failing to refer Moller for a biopsy by February 4 or shortly

thereafter.

        It was Dr. Rossof=s further opinion that had Moller been diagnosed by February 4 or

shortly thereafter, the 1.5 centimeter mass would have been curable regardless of the grade of the

tumor because it was a Stage I cancer, there was no nodal involvement, and there was no sign of

metastasis. While the negative Grade III characteristics of the tumor were present in June, it was

his opinion that they may not have been present yet in January and February. Dr. Cobleigh

agreed that there was a debate about what role the grade of cancer plays in prognosis. Both Dr.



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Cobleigh and Dr. Gradishar agreed that the two most important factors in determining prognosis

are the size of the tumor and the nodal involvement.

        Even if it was a Stage II cancer, Dr. Rossof testified that an earlier detected Stage II

cancer had a better prognosis than a late Stage II cancer because there would be fewer shedding

cells and fewer cells to kill. Accordingly, had Moller been referred on February 4 or shortly

thereafter, she would have had a better chance of survival than she did when the cancer was

diagnosed at 4.5 centimeters in June. This testimony was also supported by Dr. Zahir=s

testimony that the bigger the tumor, the higher the chances of it spreading, and Dr. Kramer=s

testimony that the cure rate is higher for smaller tumors.

        Considering the entirety of the evidence, viewed in its aspect most favorable to the

plaintiff, it cannot be said that there was a Afatal gap@ or that all of the evidence so

overwhelmingly favored defendants that no contrary verdict based on that evidence could ever

stand. Similarly, based upon the evidence adduced at trial, we cannot say that the jury's verdict

was contrary to the manifest weight of the evidence. The opposite conclusion was not clearly

evident, the jury's findings were neither unreasonable nor arbitrary, and the findings of the jury

were based upon the evidence. Accordingly, the circuit court did not abuse its discretion in

denying defendants= motion for a new trial.

        Defendants also argue that Dr. Rossof=s opinions should have been disregarded because

they lacked the necessary basis to give them any probative value and were merely based on his

Aexperience.@ The basis for an expert=s opinion goes to the weight of the evidence, not to its

sufficiency, and the weight to be assigned to an expert opinion is for the jury to determine in



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light of the expert's credentials and the factual basis of his opinion. Snelson, 204 Ill. 2d at 26-

27, 787 N.E.2d at 810. An expert may give an opinion without disclosing the underlying facts or

data. Rather, the burden is placed upon the adverse party during cross-examination to elicit the

facts underlying the expert opinion. Snelson, 204 Ill. 2d at 27, 787 N.E.2d at 810.

        Here, Dr. Rossof based his opinions upon Dr. Lipov=s medical records, Dr. Para=s

mammogram/ultrasound results, his own experience in the field of oncology, and the TNM

method for determining the prognosis of cancer patients, referring to the size of the tumor (T),

the lymph node characteristics (N), and the presence or absence of distant metastasis (M).

Defendants conducted a vigorous cross-examination of Dr. Rossof, challenging the bases and

soundness of his opinions and debating the role that biology and grade of tumor play in

determining prognosis. Thus, defendants attempted to reveal deficiencies in Dr. Rossof=s

testimony, and it was ultimately up to the jury to determine the weight to be given the conflicting

testimony. Accordingly, for all of the foregoing reasons, the trial court did not err in denying the

motion for directed verdict or motion for judgment n.o.v. based upon unfounded causation

opinions. Nor do we find that the trial court abused its discretion in denying defendants= motion

for a new trial on that basis.

        We next address defendants= contention that plaintiff=s closing argument deprived them

of a fair trial when plaintiff=s counsel analogized Dr. Lipov=s conduct to a driver who ignores a

stop sign, then waves the pedestrian into the intersection, drives over her and then comes back

and drives over her again. Initially, we note that in order to properly preserve an issue for

appeal, a party must both make a contemporaneous objection and raise the issue in a posttrial



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motion. Kim v. Evanston Hospital, 240 Ill. App. 3d 881, 892, 608 N.E.2d 371, 378 (1992).

Since defendants failed to make a contemporaneous objection to the alleged improper argument

to allow the trial court an opportunity to apply its discretion and provide a curative instruction to

any alleged impropriety, we find the issue has been waived.

         Waiver aside, we find no reversible error. AImproper argument may be a basis for

reversal if the argument was of such a character as to have prevented the party from receiving a

fair trial.@ Myers v. Heritage Enterprises, Inc., 354 Ill. App. 3d 241, 249-50, 820 N.E.2d 604,

612 (2004). Whether a party has been denied his right to a fair trial requires a consideration of

the entire trial. Myers, 354 Ill. App. 3d at 250, 820 N.E.2d at 612. Our review of these remarks

in the context of the entire trial reveals nothing so prejudicial as to deprive defendants of a fair

trial.

         We next consider plaintiff=s cross-appeal. Plaintiff initially contends that trial court erred

in denying his motion to strike defendants= affirmative defense of comparative negligence

because they failed to sufficiently plead the elements of the defense. Initially, we find plaintiff

has waived review of this issue for failure to file a posttrial motion. Waiver aside, we find no

error. Section 2-613(d) of the Code requires that facts constituting any affirmative defense be

plainly set forth in the answer. 735 ILCS 5/2-613(d) (West 2004). Section 2-613 is designed to

prevent unfair surprise at trial. Holladay v. Boyd, 285 Ill. App. 3d 1006, 1011-12, 675 N.E.2d

262, 266 (1996). In their affirmative defense, defendants alleged that Athe failure of [Moller] to

follow the treatment recommendations of [Dr. Lipov] and Key Medical Group contributed in

whole or in part and proximately caused the alleged injuries and damages of which plaintiff



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complains.@ We find that this affirmative defense contained sufficient information to inform

plaintiff of the defense he would be called upon to address and there is no indication that

plaintiff was indeed unprepared or surprised at trial.

       Plaintiff next contends that the trial court erred in denying his motion for a directed

verdict on the issue of comparative fault. Section 2-1202 of the Code specifically provides that

if the court denies a motion for directed verdict, the motion is waived unless the request is

renewed in a posttrial motion. 735 ILCS 5/2-1202 (West 2004). Accordingly, plaintiff has also

waived this issue for review by failing to file a posttrial motion. Nevertheless, even were we to

address the merits, we would find that there was sufficient evidence in the record to defeat

plaintiff=s motion.

       The evidence, taken in the light most favorable to the defense, was that Dr. Lipov

instructed Moller to return to see him if her mass grew or if her pain increased. Both her

husband and mother testified that during January and February, Moller regularly examined her

breasts and that the pain from the mass continually worsened between February and June.

Moller did not return to see Dr. Lipov regarding her breast condition until June 17, 1999.

Accordingly, there was some evidence to support Moller=s contributory negligence in that had

she continued to experience pain after her mammogram and ultrasound, she should have

followed Dr. Lipov=s instructions to inform him of that fact. Had she done so, Dr. Lipov could

have referred her at a point where Dr. Rossof believed she would have still been curable.

       Plaintiff next contends that the trial court erred in denying his request for costs related to

the healthcare professional=s report under section 2-622 of the Code. 735 ILCS 5/2-622 (West



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1-04-3640 and 1-05-0061 cons.

2004). Specifically, plaintiff argues that since the healthcare professional=s report is a necessary

cost required by statute in order to file a medical negligence action, the cost of the report should

be recoverable. Whether the trial court has the authority to award such costs is an issue of first

impression, and because it is a question of law, we apply de novo review. Vincencio v. Lincoln-

Way Builders, Inc., 204 Ill. 2d 295, 299, 789 N.E.2d 290, 293 (2003).

       The prevailing plaintiff=s recovery of costs has been authorized by statute in Illinois.

Section 5-108 of the Code provides as follows:

                AIf any person sues in any court of this state in any action for damages

       personal to the plaintiff, and recovers in such action, then judgment shall be

       entered in favor of the plaintiff to recover costs against the defendant, to be taxed,

       and the same shall be recovered and enforced as other judgments for the payment

       of money, except in the cases hereinafter provided.@ 735 ILCS 5/5-108 (West

       2004).

Although the provision entitling plaintiff to costs is mandatory, the mandate must be narrowly

construed as statutes allowing recovery of costs are in derogation of the common law.

Vincencio, 204 Ill. 2d at 300, 789 N.E.2d at 293.

       In Galowich v. Beech Aircraft Corp., 92 Ill. 2d 157, 165, 441 N.E.2d 318, 321 (1982),

our supreme court stated that the term Acosts@ has acquired Aa fixed and technical meaning in the

law.@ The Galowich court defined costs as Aallowances in the nature of incidental damages

awarded by law to reimburse the prevailing party, to some extent at least, for the expenses

necessarily incurred in the assertion of his rights in court.@ Galowich, 92 Ill. 2d at 165-66, 441



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1-04-3640 and 1-05-0061 cons.

N.E.2d at 321. Nevertheless, in Vincencio, the supreme court explained that this definition is

merely descriptive, not prescriptive, meaning that it describes a characteristic shared by all

categories of taxable costs, but Ait does not prescribe a rule that draws a line between those that

must be taxed pursuant to section 5-108 and those that may be taxed pursuant to another statute

or rule.@ Vincencio, 204 Ill. 2d at 301-02, 789 N.E.2d at 294.

       For example, the Vincencio court stated that merely because a corporation may only

appear through counsel and, therefore, incurs attorney fees every time it asserts its rights in

court, does not mean that these fees are taxable costs under section 5-108. Vincencio, 204 Ill. 2d

at 302, 789 N.E.2d at 294. Thus, by analogy, it can also be said that, merely because a plaintiff

must pay a fee for a healthcare professional=s report in order to assert his rights in a medical

malpractice case, it does not necessarily follow that it is a mandated taxable cost under section 5-

108.

       Rather, in defining costs under section 5-108, the Vincencio court relied upon the

distinction between costs commonly understood to be Acourt costs,@ such as filing fees, subpoena

fees, and statutory witness fees, all of which would be undisputed as taxable costs, and Alitigation

costs,@ which are the ordinary expenses and burdens of litigation. These costs are not

recoverable unless otherwise authorized by another statute or supreme court rule. Vincencio,

204 Ill. 2d at 302, 789 N.E.2d at 295.

       Applying this distinction to the present case, the fee for the healthcare professional=s

report does not fall squarely within the commonly understood Acourt costs@ which are mandated

by section 5-108. Mindful of our duty to construe the statute narrowly, we refuse to expand the



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1-04-3640 and 1-05-0061 cons.

definition of court costs, and thus, hold that section 5-108 does not authorize the taxing of costs

related to fees incurred for a healthcare professional=s report under section 2-622. Additionally,

plaintiff does not argue that any other statute or rule would authorize such fees as taxable costs.

       For all of the foregoing reasons, we affirm the judgment of the circuit court.

       No. 1-04-3640, Affirmed.

       No. 1-05-0061, Affirmed.

       GREIMAN and KARNEZIS, JJ., concur.




                                               - 21 -
              REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
          _________________________________________________________________

            ROBERT MOLLER, Individually, and as Executor of the Estate of HOPE MOLLER,
            Deceased,

                  Plaintiff-Appellee/Cross-Appellant,

                  v.

            SERGEI LIPOV and KEY MEDICAL GROUP, LTD.,

                  Defendants-Appellants/Cross-Appellees,

          ________________________________________________________________

                             Nos. 1-04-3640 and 1-05-0061 cons.

                                 Appellate Court of Illinois
                                First District, Third Division

                               Filed: September 29, 2006
          _________________________________________________________________

               PRESIDING JUSTICE THEIS delivered the opinion of the court.

                           Greiman and Karnezis, JJ., concur.
          _________________________________________________________________

                      Appeal from the Circuit Court of Cook County
                         Honorable Tom Chiola, Judge Presiding
          _________________________________________________________________

For PLAINTIFF-           Anne M. Oldenburg                   Hugh C. Griffin
APPELLEE/CROSS-          Melvin G. Hobbs                     Elsa Y. Trujillo
APPELLANT                Alhom, Monahan, Klauke,             Lord, Bissell & Brook LLP
                         Hay & Oldenburg, L.L.C.             115 S. LaSalle St.
                         221 N. LaSalle St., Suite 450       Chicago, IL 60603
                         Chicago, IL 60601
                                                             Samuel J. Leib
                                                             Leib & Katt, S.C.
                                                             740 N. Plankinton Ave., Suite 600
                                                             Milwaukee, WI 53203
For DEFENDANTS- Kenneth C. Chessick
APPELLANTS/CROSS- John W. Fisk
APPELLEES       Travis W. Life
                       Matthew R. Hess
                       Magdalena Dworak
                       Stuart E. Card
                       The Law Offices of Kenneth C. Chessick, M.D.
                       1870 N. Roselle Rd., Suite 104
Schaumburg, IL 60195
