                                               SIXTH DIVISION
                                               September 1, 2006



No. 1-03-0106

MICHAEL LANGE and LINDY LANGE,       )    Appeal from the
Individually, and as Special         )    Circuit Court of
Administrators of the Estate of      )    Cook County
Baby Lange,                          )
                                     )
                                     )
          Plaintiffs-Appellants,     )
                                     )
                                     )    No. 99 L 6143
          v.                         )
                                     )
                                     )
MARY FREUND,                         )
                                     )    Honorable
                                     )    Carol Pearce McCarthy
          Defendant-Appellee.        )    Judge Presiding


     JUSTICE McNULTY delivered the opinion of the court:

     Michael Lange and Lindy Lange sued Mary Freund for the

wrongful death of their unborn child, alleging that Freund's

negligent driving caused a collision between her car and the

Langes' vehicle, resulting in the loss of Lindy's five-week-old

pregnancy.   Freund admitted negligence, but denied that the

collision was the cause of the unborn child's death.      A jury

returned a general verdict in favor of Freund and, via a special

interrogatory, confirmed its finding that the loss of the Langes'

child was not caused by the accident.    The Langes appeal,

alleging that numerous errors require a new trial.    For the

reasons that follow, we affirm.    In accordance with Supreme Court

Rule 23, portions of this opinion are nonpublishable; the

complete text of our disposition is provided in the nonpublished
1-03-0106

order issued simultaneously with this opinion.

                             BACKGROUND

       Michael and Lindy Lange were driving to visit Lindy's

brother and sister-in-law in Davenport, Iowa on the evening of

September 5, 1997 when the vehicle of Mary Freund, approaching

from the opposite direction, made a left turn into their lane.

The vehicles collided, resulting in the total loss of the Langes'

car.    While the record presented to this court reveals some

initial dispute about whether Mary or her husband, John Freund,

was driving their vehicle at the time of the accident, John

passed away shortly thereafter for reasons unrelated to the

collision and the parties have not pursued the dispute in this

proceeding.    The Langes were taken by ambulance to a local

emergency room, where Lindy was briefly examined, but neither she

nor Michael was admitted to the hospital, and the record does not

suggest that either of the Freunds suffered injury.

       On the date of the accident, Lindy was five weeks into a

pregnancy which had been achieved through in vitro fertilization.

 The Langes returned to the Chicago area on the Sunday following

the accident and visited the offices of Lindy's treating

physician at the first available opportunity on the morning of

Monday, September 8.    A test of Lindy's blood revealed that human

chorionic gonadotropin (HCG), a hormone which increases in rapid

and predictable levels in the bloodstream of an expectant mother

during a healthy pregnancy, was present in Lindy's system in an


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amount which was lower than normal for a pregnancy at her stage.

Lindy was tested every few days thereafter, and each test showed

HCG levels that indicated her pregnancy was not proceeding

normally.   On September 29, an ultrasound showed that the Lange

baby's heart was no longer beating.      The child showed no signs of

recovery thereafter, and on October 16, it was surgically removed

from Lindy's uterus.



     The Langes filed an action in the circuit court of Cook

County in which Mary Freund admitted that her negligent driving

caused the collision.   Issues regarding damages other than the

loss of Lindy's pregnancy were resolved prior to trial, leaving

the parties to present to the jury evidence on the presence or

absence of a causal link between the collision and the

miscarriage, and evidence of the damages recoverable as a result

of the death of an unborn child.       In addition to the testimony of

Lindy and Michael, the Langes presented the expert testimony of

three physicians, each of whom concluded that Lindy's miscarriage

was caused by the accident.   The Lange experts testified that the

forces acting upon Lindy's body when their vehicle slammed to a

sudden stop from a speed of more than 30 miles per hour were

sufficient to cause her internal organs to be shaken violently,

rupturing the blood vessels between the uterus and the placenta.

 One of their experts also testified that the accident could have

caused the miscarriage by producing a surge of hormones which


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constricted Lindy's blood vessels, cutting blood flow to the

placenta.   Freund presented one medical expert, who concluded

that the pregnancy had begun to show signs of difficulty before

the accident.   Her expert testified that in healthy pregnancies,

HCG levels double each 48 hours, and that pregnancies which

failed to show this steady increase were almost certain to end in

miscarriage.    He further testified that the HCG levels revealed

by Lindy's September 8 test were abnormally low not only for that

date but for the date of the accident, September 5. Since he had

never known HCG levels to rise normally, fall, then rise again,

he concluded that the postaccident HCG levels were no lower than

those on the date of the accident, and that they were lower than

normal before that date. Freund's expert testified that the size

of the fetus's sac was smaller than expected at the time of

Lindy's last preaccident examination and that she displayed none

of the bleeding or other signs of injury which would have been

consistent with traumatically-induced miscarriage; he concluded

that the accident was not the cause of the miscarriage.   The

jury, in addition to returning a general verdict in favor of

Freund, also responded "No" to a special interrogatory: "Do you

find that the automobile accident of September 5, 1997

proximately caused the fetal demise on September 29, 1997."     The

Langes now appeal, asserting numerous claims of trial error.



                              ANALYSIS


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             I. Court Instruction On Number Of Witnesses

       Immediately after closing argument, the trial court, on its

own motion, remarked: "I am going to interject one thing right

now.    The number of witnesses on either side of the case is not

dispositive of the issues or the facts as you find them."      The

Langes contend that the giving of this instruction was

sufficiently prejudicial to constitute reversible error.

       In support of their contention, the Langes note that our

supreme court's committee on jury instructions in civil cases has

advised against such instructions: "The committee recommends that

no 'one witness against a number' instruction be given."

Illinois Pattern Jury Instructions, Civil, No. 4.06 (2000)

[(hereinafter IPI Civil (2000)].       The committee, in its notes to

the recommendation against giving such instructions, commented,

"The Illinois Supreme Court has held that it is for the jury to

determine to what extent each witness is credible, and that it is

error to give an instruction on that subject so worded that under

the circumstances of the case the jury might readily infer the

court believed the witnesses for one side to be more credible

than the witnesses for the other side.      Walsh v. Chicago Rys.
Co., 294 Ill. 586, 595 (1920)." IPI Civil (2000) No. 4.06,

Comment. Though we are mindful of the foregoing, we do not agree

with the Langes' assertion that the committee's recommendation

and comments establish that the trial court's admonition in the

instant case was reversible error.


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     Pattern instructions are presumed to be accurate statements

of Illinois law, and the jury is to be instructed using an

approved pattern form if the trial court determines that it is

applicable to the circumstances of the case.      Luye v. Schopper,

348 Ill. App. 3d 767, 773 (2004).      But pattern instructions are

not themselves law.   Our supreme court has held that they "are

not exempt from challenge."   Powers v. Illinois Central Gulf R.R.

Co., 91 Ill. 2d 375, 385 (1982).       "There has not been any advance

approval of the IPI by this court.      An instruction is approved or

rejected only after it has been judicially questioned and

considered."   Powers, 91 Ill. 2d at 385.      We have been made aware

of no Illinois precedent which may be construed as a blanket

prohibition of all instructions similar to that in the instant

case, or as a judicial analysis of the committee's recommendation

against such instructions.    It is thus apparent that the

propriety of the trial court's instruction herein is not

conclusively determined by the recommendation and comments of the

supreme court's jury instruction committee.

     Instructions to the jury, taken as a whole, must fairly,

fully, and comprehensively apprise the jury of the relevant legal

principles; a trial court will not be reversed for giving faulty

instructions unless they clearly misled the jury and resulted in

prejudice to the appellant.    Schultz v. Northeast Illinois
Regional Commuter R.R. Corp., 201 Ill. 2d 260, 273-74 (2002).         In

the instant case, the trial court's instruction to the jury that


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the number of witnesses on either side of the case is not

dispositive was not an inaccurate or misleading statement of

Illinois law.   "Evidence, and its preponderance, is to be

determined from its value and weight, not from the mere number of

witnesses and exhibits on one side or the other."   Thornton v.

Rhodus Mobile Homes, Inc., 104 Ill. App. 3d 869, 872 (1982).       See

also Hardware State Bank v. Cotner, 55 Ill. 2d 240, 252 (1973).

Indeed, the supreme court committee on jury instructions long

approved a pattern instruction which advised that "[i]n deciding

whether any fact has been proved, it is proper to consider the

number of witnesses testifying on one side or the other as to

that fact, but the number of witnesses alone is not conclusive if

the testimony of the lesser number is more convincing."      IPI

Civil No. 2.07 (3d 1990); Johnson v. Equipment Specialists, Inc.,
58 Ill. App. 3d 133, 143 (1978).

     In changing its stance on such instructions, the supreme

court committee, notably, characterized its amended viewpoint as

a recommendation, and did not suggest that Illinois law had

changed.    Instead, as outlined above, it emphasized the possible

prejudicial effect of a court's suggestion that the witnesses of

one party were more credible than those of the opponent, citing

Walsh v. Chicago Rys. Co., 294 Ill. 586, 595 (1920), and
recommended against the injection of such prejudice into civil

trials.

     Walsh, however, did not suggest that all "one witness


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against a number" instructions were inherently prejudicial, or

that all such instructions constituted reversible error.   In

Walsh, the jury was instructed: "'The court instructs the jury

that the testimony of one credible witness may be entitled to

more weight than the testimony of many others, if, as to those

other witnesses, you have reason to believe, from the evidence

and all the facts before you, that such other witnesses have

knowingly testified untruthfully as to any material fact or

circumstance and are not corroborated by other credible witnesses

or by circumstances proved in the case.'"    Walsh, 294 Ill. At
595.    The Walsh court found the instruction to be sufficiently

prejudicial to require reversal of a jury verdict against the

defendant, who had produced more witnesses to an accident than

the plaintiff, but in so doing, the court focused on the

instruction's explicit commentary on the credibility of the

witnesses: "We find nothing in the testimony that would serve as

a basis for an intimation to the jury that any of the witnesses

for the [defendant] had knowingly or willfully testified

falsely."    Walsh, 294 Ill. at 596.
       At the same time, however, the Walsh court acknowledged the

possibility that some such instructions would not be similarly

suggestive, and would thus be permissible: "An instruction of the

character of the one here in question can only be offered when so

worded that it does not single out witnesses from one side or the

other, so that it might apply to any witness in the case, without


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reference to whether he was called by plaintiff or defendant."

Walsh, 294 Ill. at 596.   Walsh thus disfavors instructions which

call into question the credibility of one party's witnesses, but

does not suggest that an instruction regarding the inconclusive

nature of the number of witnesses is in all cases sufficiently

prejudicial to constitute reversible error.

     Accordingly, since the committee's position on "one against

a number" instructions has not yet been adopted by courts of this

state, since its position is a recommendation, rather than a

purported statement of Illinois law, since the supreme court

authority cited as the basis for the committee's recommendation

does not prohibit all "one against a number" instructions, and

since the court's instruction does not include the commentary on

credibility found by the Walsh court to be objectionable, we
conclude that the committee recommendation, in itself, is

insufficient to establish that the trial court's statement to the

jury was reversible error.

     We therefore analyze the instruction in accordance with

general principles of review of nonpattern instructions in

Illinois.   The trial court's instruction in the instant case did

not misstate Illinois law, and remained within the constraints

established by our supreme court for non-pattern instructions: it

was "simple, brief, impartial, and free from argument."     177 Ill.

2d R.239(a).   It made none of the credibility commentary

addressed by the Walsh court, did not make reference to either


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party, and did not suggest that the number of witnesses was not

to be considered.

     We believe that the court's instruction was an appropriate

communication to the jury in light of the arguments made by the

Langes' counsel in closing and rebuttal.    Those arguments

repeatedly suggested that the number of expert witnesses

presented by the parties should determine the outcome of the

fact-finding process:

            "Getting back to the probabilities.   Three people

     against one.   Three experts saying it was the collision

     against Dr. Zinaman.    You take three people, 75

     percent, against one expert, 25 percent, who should

     win?   We should win.   And that is what more probably

     true than not true means.    You can consider how many

     people testified on one side as opposed to the other.

     You can consider that in determining who should win.

                                 * * *

            All you have to determine is more probably true

     than not true, slightly - - have we slightly proved

     it's more probably true than not true that this

     collision caused the loss of this pregnancy and what

     the damages are.   And I think it should be very easy.

     And the reason I think it should be very easy is

     because now that you know the burden of proof, now that

     you know it is not a possibility, now that you know our


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    burden is not way up here and that it is just a little

    bit ahead, putting three against one in context, how do

    we lose?    And that is my point.   We shouldn't lose.

                                * * *

            You are also going to be asked to complete what is

    known as another question in addition to the verdict

    forms.     And that question is going to ask you whether

    or not you found that the collision of September 5th of

    1997 was the proximate cause of the fetus's demise.

    You need to answer that question yes.     That is an

    additional question you have to answer.     Why should you

    answer that question yes?     Because if you apply that

    burden of proof, more probably true than not true,

    three people against one, we should win.

                                * * *

            And when [defense counsel] talked about the burden

    of proof, he just totally glossed over the three people

    on one side testifying against one person on this side.

      That is more probably true than not true.    Three

    people saying it was the collision to one person saying

    it was not the collision, three against one, 75 percent

    to 25 percent.    More probably true than not true.      We

    just have to be a little bit ahead of them in terms of

    proof, and we should win this case.

                                * * *


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            That is why the three against one becomes so

     important because in order to find in favor of the

     Defense, you would have to find that Dr. Zinaman

     standing alone, his testimony would outweigh the other

     three people.    It is kind of like that basketball game

     that we were describing.     The Bulls have 100 and the

     opposing team has 99, the Bulls win. We have three, the

     opposing team has one.    Who should win?   We should.

                                  * * *

             Three against one. More probably true than not

     true.    We've proven it."

     In light of the repeated suggestion that the number of

witnesses testifying in favor of the Langes should decide the

case in their favor, we cannot find that the trial court misled

the jury or prejudiced the Langes with its simple, accurate and

argument-free statement that the number of witnesses was not to

be considered conclusive.     We accordingly reject the Langes claim

that the court's statement constituted reversible error.

       II. Jury Selection - Dismissal Of Incomplete Panel

     Before jury selection began, the trial court informed the

parties that if a panel of four jurors had not been completed and

sworn at 4:30 p.m., all jurors on that panel would be dismissed,

and the panel would be completely refilled at the beginning of

the next court day.     Neither party objected to this rule.

     When jury selection began, the court followed its rule as it


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had been announced: only three jurors out of the second panel of

four had been selected by the close of the day, and those three

jurors were dismissed.   Counsel for the Langes asked, "You're

dismissing all these people, judge?"   The trial court responded,

"I told you at the end of the day that is what it is.   If I don't

have a panel, it is only the people who are sworn.   So we start

over and you each have one challenge."    Neither party objected at

that time, and neither party objected when jury selection resumed

and the remainder of the jury was impaneled.

     The Langes now claim that the dismissal of three jurors from

the incomplete second panel was reversible error.    They contend

that they were unable to select a fair and impartial jury because

the three peremptory challenges they exercised to remove jurors

from the second panel were not reinstated when selection of that

panel resumed.

     Since the Langes did not object to the court's announcement

of its rule, to its application of the rule at the time the three

jurors from the incomplete second panel were dismissed, or to its

assessment of the parties' remaining number of peremptory

challenges, they have waived the issue.   Branum v. Slezak
Construction Co., Inc., 289 Ill. App. 3d 948, 959-60 (1997).

Recognizing this fact, the Langes argue that we should consider

the issue under the plain error doctrine, which allows us to

review claims of error not properly preserved at trial.      But this

doctrine is applied in civil cases only where the act complained


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of was a prejudicial error so egregious that it deprived the

complaining party of a fair trial and substantially impaired the

integrity of the judicial process itself. Gillespie v. Chrysler

Motors Corp., 135 Ill. 2d 363, 377 (1990).

       In the instant case, however, the Langes have failed to make

even the threshold-level showing that the actions they complain

of were prejudicial.           They contend that because the jurors they

selected for the second panel were dismissed, the three

peremptory challenges they used to select that panel were

improperly deprived of their impact.                 Illinois reviewing courts

have not shared this view.             "The right of peremptory challenge is a right to

exclude jurors, not to select them. It enables a party to say who shall not try his case,

but it does not enable him to select the particular jurors by whom he wishes his case

tried." Schultz v. Gilbert, 300 Ill. App. 417, 422 (1939). Prejudice in the jury

selection process is not shown by the mere assertion that a party
would have preferred different members of the jury; Illinois

courts have instead required a showing that a party was forced to

accept a juror that was objectionable and was unable to excuse

that juror due to the lack of peremptory challenges.                        O'Donnell

v. Holy Family Hospital, 289 Ill. App. 3d 634, 649 (1997); Snyder

v. Poplett, 98 Ill. App. 3d 359, 365 (1981).                     The Langes ended

jury selection in the case at bar with one unused peremptory

challenge, have not offered any suggestion that any of the jurors

on the second or third panels were objectionable in any way, and


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have not demonstrated that the method of selecting their jury

resulted in any outcome recognized by Illinois law to be

prejudicial.    We therefore conclude that even if the Langes are

spared the impact of their failure to preserve this issue for

review, they have presented no basis for reversal of the verdict

in favor of Freund.

          III. Jury Selection - Striking of "Accepted" Juror

     The material in this section and sections IV through VII is

nonpublishable pursuant to Supreme Court Rule 23.

     The Langes also argue that the trial court erroneously

permitted Freund to cross-examine their expert witnesses with

questions about their level of certainty about the cause of the

miscarriage: they claim that the trial court erred in allowing

Freund to ask their experts if circumstances other than the

accident were possible causes of the loss of the child and in

allowing her to ask them if they were certain that problems with

fetal development had not started before the accident.

     "It is permissible for a medical expert to testify

concerning his or her opinions in terms of possibilities or

probabilities."    Matuszak v. Cerniak, 346 Ill. App. 3d 766, 772
(2004).    In Wojcik v. City of Chicago, 299 Ill. App. 3d 964, 979

(1998), we rejected the contention that a trial court errs by

permitting cross-examination of an expert about possible

alternative causes of injury.    We find no basis for departure

from the Wojcik court's approach, and accordingly reject the


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Langes' identical contention in the case at bar.

     We also reject the Langes' contention that the trial court

erred in allowing Freund to ask their experts on cross-

examination whether they were "certain" that the pregnancy was

progressing normally in the days immediately prior to the

accident.    Questioning of the certainty of the   direct testimony

of a witness is, in our view, well within the boundaries of

potentially permissible cross-examination, subject to the trial

court's discretion; such questioning has been routinely accepted

by this court in the examination of expert and lay witnesses.

See Downing v. United Auto Racing Ass'n, 211 Ill. App. 3d 877,
888 (1991); Collum v. Fred Tuch Buick, 6 Ill. App. 3d 317, 320

(1972).    Accordingly, although a "reasonable degree of medical

certainty" is the minimum threshold of assuredness required of a

competent medical expert opinion (Hunter v. Chicago & North

Western Transportation Co., 200 Ill. App. 3d 458, 473 (1990)), we

are aware of no viable precedent which prohibits either the

expression of a greater degree of conviction or cross-examination

questions about whether that greater degree of conviction is

present.

     The Langes cite Skalon v. Manning, Maxwell & Moore, Inc.,
127 Ill. App. 2d 145, 159 (1970) for the proposition that "it is

error to allow an expert to give an opinion as an absolute

certainty on the cause of one's injury."   While that principle

was indeed cited by the Skalon court as the holding of Turnbow v.


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Hayes Freight Lines, Inc., 15 Ill. App. 2d 57, 61-62 (1957), we

believe that it cannot be viewed as an accurate statement of

current Illinois law.

     The Turnbow court relied upon a premise long prevalent in

Illinois jurisprudence: that conclusive expert testimony on an

ultimate issue in a contested action was prohibited because such

testimony would invade the jury's province as the finder of fact.

 Illinois courts expressed concern that "direct and positive

testimony" by an expert on an ultimate issue would conclusively

decide the question, thereby leaving the jury with "nothing left

to do but to proceed to award large damages."   Fellows-Kimbrough
v. Chicago City Ry. Co., 272 Ill. 71, 78 (1916).   Mindful of that

premise, our courts insisted that expert testimony on a case's

ultimate factual issue be expressed equivocally, and not with

certainty.    Santiemmo v. Days Transfer, Inc., 9 Ill. App. 2d 487,

497 (1956).

     Our supreme court has since disavowed this principle,

however, explaining that a jury's province as factfinder is not

impermissibly invaded even by expert testimony expressed in

absolute terms, since jurors remain free to disbelieve and

disregard such testimony.   Zavala v. Powermatic, Inc., 167 Ill.
2d 542, 545 (1995).

     In Richardson v. Chapman, 175 Ill. 2d 98, 107-108 (1997),

the court, reviewing a traditional requirement of neutral,

inconclusive actuarial expert testimony, found that such


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requirements, because they were mere products of the disfavored

prohibition against ultimate issue testimony, were no longer

viable.   The Richardson court's analysis is dispositive of the

Langes' argument in the instant case.   Although medical experts

must at least meet the "reasonable degree of medical certainty"

threshold to provide a competent, admissible opinion, Illinois

law no longer bars the expression of that opinion in more

conclusive terms.   The trial court was therefore vested with the

discretion to allow cross-examination about the degree of

certainty of the Langes' medical experts.    Finding no suggestion

of abuse of that discretion, we reject the Langes' contention

that permission of cross-examination on the subject was

reversible error.

                IX. Prejudicial Trial Court Actions

     The Langes allege that various trial court actions created

sufficient prejudice against them in the minds of the jury that

the verdict against them must be reversed.   We find none of the

cited actions, singularly or in the aggregate, to be

justification for such relief.

     The first action raised by the Langes is the trial court's

method of modifying one of the damages instructions they offered

for presentation to the jury. After the instruction was read to

the jury, the court explained that language found to be

inapplicable to the case and redacted from one paragraph of the

instruction had not been similarly removed from another


                                 18
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paragraph.    Before giving the written instructions to the jury,

the court blacked out the inapplicable language with a pen.      The

Langes first argue that this editing was prohibited by the Code

of Civil Procedure (735 ILCS 5/2-1107 (West 2002)), which,

according to their brief, states that a trial court "shall in no

case, after instructions are given, clarify, modify or in any

manner explain them to the jury . . . unless the parties agree

otherwise."   The Langes apparently recognize that the four words

omitted from their brief's statutory citation are fatal to this

argument: the statute indeed prohibits clarification,

modification or explanation of instructions "otherwise than in

writing" unless the parties agree.    Since the modification

complained of here is clearly in writing, the Langes' statutory

argument on this issue merits no further discussion.

     The Langes' next objection to the court's written

modification of the instruction is that since it was identified

as a plaintiffs' instruction, the handwritten alteration "showed

contempt" for them and their attorneys.    In People v. Foster, 288
Ill. 371 (1919), instructions were edited by drawing lines

through the inapplicable language, but the edited words remained

clearly legible. Our supreme court did not find such editing to

be prejudicial.   "[S]o far as we are advised a case has never

been reversed solely because the instruction had been handed to

the jury as modified by inserting or striking out and without

being re-written."   Foster, 288 Ill. at 383.   "[A]ny modification


                                 19
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of this kind not necessarily misleading ought not to reverse the

case."   288 Ill. at 383.   The Langes have cited no precedent for

departure from the Foster court's approach, and our research has

revealed none.   Furthermore, the Langes do not contend that the

instruction, as modified, was an incorrect or misleading

statement of Illinois law.    We therefore adhere to the Foster

court's analysis and conclude that hand-editing of the

instructions submitted to the jury was not reversible error.

                              CONCLUSION

     For the foregoing reasons, the judgment of the circuit court

of Cook County is affirmed.

     Affirmed.

     TULLY and O'MALLEY, JJ., concur.




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