                                         2017 IL App (1st) 153593

                                                                                 FOURTH DIVISION
                                                                                 January 26, 2017

                                               No. 1-15-3593

     ______________________________________________________________________________

                               IN THE APPELLATE COURT
                                       OF ILLINOIS
                                FIRST JUDICIAL DISTRICT
     ______________________________________________________________________________

     MAI LEEN AGUILAR-SANTOS,                        )           Appeal from the
                                                     )           Circuit Court of
           Plaintiff-Appellee,                       )           Cook County.
                                                     )
     v.                                              )           No. 10 L 3952
                                                     )
     HELEN BRINER,                                   )           Honorable
                                                     )           Diane Shelley,
           Defendant-Appellant.                      )           Judge Presiding.
     ______________________________________________________________________________

            JUSTICE BURKE delivered the judgment of the court, with opinion.
            Presiding Justice Ellis and Justice Howse concurred in the judgment and opinion.

                                                OPINION

¶1                                         I. BACKGROUND

¶2          This case arises from an automobile accident that occurred on July 28, 2008, between

     Mai Leen Aguilar-Santos, plaintiff, and Helen Briner, defendant. On April 1, 2010, plaintiff filed

     a complaint in the circuit court of Cook County, seeking to recover damages as a result of

     defendant’s negligence in causing the accident. Plaintiff alleged that she suffered injuries to her

     lower back and neck from the impact and burns to her arm from the deployment of the airbag.

     Defendant filed an answer, denying any negligence and asserting the affirmative defense of

     plaintiff’s own negligence.
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¶3          On July 15, 2013, the trial court granted plaintiff’s motion for partial summary judgment,

     finding that defendant breached the duty of ordinary care. Defendant filed an amended answer,

     admitting that her negligence was the proximate cause of plaintiff’s injuries. Defendant denied,

     however, that plaintiff was injured to the extent that she claimed or that the injuries she sustained

     as a result of the accident were permanent. Prior to trial, defendant conducted evidence

     depositions of two of plaintiff’s treating physicians, Dr. Richard Lim and Dr. Michel Malek.

¶4                                      A. Rule 213(f) Disclosures

¶5          Plaintiff filed her initial Supreme Court Rule 213(f) interrogatory answers on February

     25, 2011 (Ill. S. Ct. 213(f) (eff. Jan.1, 2007)). In those answers, plaintiff identified Dr. Lim as

     one of plaintiff’s treating physicians who may be called to testify at trial. The answers further

     provided that Dr. Lim would testify “that said injuries and symptoms identified in the medical

     records are caused by the accident” and that “[p]laintiff’s condition may deteriorate with age or

     treatment.” The answers further disclosed that Dr. Lim would “rely upon the radiographic studies

     contained in the medical records.” Finally, plaintiff disclosed that she would “be seeing [Dr.

     Lim] again before trial either for treatment or to update the doctor’s opinion.”

¶6          On August 7, 2012, plaintiff filed supplemental answers to the initial interrogatory

     answers filed on February 25, 2011. In the supplemental answers, plaintiff disclosed that she

     recently returned to Dr. Lim’s office. Based upon this recent examination, plaintiff expected Dr.

     Lim to testify that she required future and further medical treatment to treat her pain and

     problems related to the automobile collision. Plaintiff further disclosed that Dr. Lim “is expected

     to rely on any and all other medical records of the plaintiff from other doctors and hospitals.”

     Under Dr. Lim’s name on the disclosures is a notation to “See attached records.” Attached to the

     supplemental answers, plaintiff included a medical record from April 2, 2012. The record


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     provides that plaintiff “continues to be symptomatic with respect to the cervical spine” and that

     plaintiff’s “MR scan was reviewed from November 2011 and shows herniated disc at C5-6. The

     patient was examined with Dr. Lim and he reviewed these studies.” Plaintiff also included a copy

     of the Magnetic Resonance Imaging (MRI) from November 2011.

¶7                                        B. Motions in Limine

¶8                                 1. Defendant’s Motion in Limine 15

¶9          Prior to the beginning of the jury trial, defendant filed a number of motions in limine. In

     motion in limine 15, defendant requested that the trial court “preclude evidence of permanency,

     future pain and suffering, and future loss of normal life.” In this motion, defendant contended

     that in his evidence deposition, Dr. Lim did not offer any opinions regarding the permanency of

     plaintiff’s condition. Defendant further contended that the court should sustain her objection to

     Dr. Malek’s testimony at his evidence deposition that plaintiff sustained a permanent injury. In

     support of this contention, defendant asserted that Dr. Malek last saw plaintiff on March 5, 2014,

     15 months prior to his evidence deposition, which meant that it was not a recent examination

     under Illinois law for establishing the permanency of plaintiff’s condition. Defendant further

     asserted that Dr. Malek saw plaintiff only six times during a two-year period, and, therefore,

     lacks the proper foundation to support a claim for permanency. In denying defendant’s motion in

     limine 15, the trial court stated that the recency of the exam was only one factor the court could

     consider in determining whether to permit admission of the evidence. The court further

     recognized that at this point in the trial, the only issue was the admissibility of the evidence

     regarding permanency, and not the weight that the jury may give to that evidence.




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¶ 10                                  2. Defendant’s Motion in Limine 16

¶ 11          In motion in limine 16, defendant contended that the trial court should “bar any claim for

       future medical expenses.” Defendant asserted that neither Dr. Lim nor Dr. Malek testified as to

       the cost of any future medical treatment in their evidence depositions and that plaintiff identified

       no other witness who could testify as to the cost of treatment that plaintiff may incur in the

       future. At a hearing on defendant’s motion, defendant asserted that there was insufficient

       evidence regarding the manner of plaintiff’s future treatment to support a claim to recover future

       expenses for her prescription medication. The court noted that the interrogatory answers dated

       August 7, 2012, indicated that Dr. Malek would testify that plaintiff would probably need future

       medical treatment and will incur bills associated with that treatment and that the doctor would

       discuss the cost of future treatment. The court then denied defendant’s motion in limine 16, but

       stated that it would “revisit it before closing arguments when all of the evidence will have been

       presented.”

¶ 12                                                 C. Trial

¶ 13                                      1. Plaintiff’s Case-in-Chief

¶ 14          At trial, plaintiff testified that, after the automobile accident, she was taken to the hospital

       where she was told to take pain medication and follow up with her primary care physician.

       Plaintiff visited Dr. Satinder Dalawari a week after the accident on August 4, 2008. Dr. Dalawari

       noted that plaintiff had had neck pain, low back pain, and some burns on her forearm. Plaintiff

       testified that she had never experienced back or neck pain before the automobile collision. Dr.

       Dalawari prescribed plaintiff an antibiotic and also ordered a computerized tomography (CT)

       scan of her cervical spine and lumbar spine. The CT scans showed “mild degenerative dis[c]




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       disease or dis[c] changes” at the C5-C6 level, but there was no evidence of any fracture or

       dislocation. Dr. Dalawari recommended that plaintiff see an orthopedic doctor.

¶ 15            Plaintiff visited Dr. Lim, an orthopedic surgeon, on August 13, 2008. Dr. Lim noted that

       plaintiff had neck pain and low back pain and diagnosed her with cervical strain and lumbar

       strain. Dr. Lim recommended non-operative treatment including physical therapy. Dr. Lim met

       with plaintiff again on September 26, 2008. Plaintiff reported that her pain had improved, but

       had not dissipated. Dr. Lim noted that she was “hyperreflexive,” which could indicate that

       something was “going on” with her nervous system. He recommended that she get an MRI.

       Upon review of her MRI, Dr. Lim observed impingement at the C5-C6 disc level of her cervical

       spine.

¶ 16            On October 30, 2008, plaintiff visited Dr. Nulman for an epidural steroid injection to her

       cervical spine. Dr. Lim testified that after the injection, plaintiff was making improvement, but

       that her improvement was “rather slow.” Plaintiff testified that the procedure of receiving the

       epidural injection was very painful. Dr. Lim saw plaintiff again on December 12, 2008, and he

       noted that she had improved and that the epidural “helped her out significantly.” Dr. Lim

       recommended that she finish her physical therapy and follow up with him on an as-needed basis.

       Plaintiff completed physical therapy on January 7, 2009. Plaintiff testified that at this point in her

       treatment she felt relief, but was not “100 percent” and that the pain was still present. At the

       recommendation of her physical therapist, she continued to do physical therapy exercises at

       home to manage her pain.

¶ 17            Plaintiff returned to Dr. Lim’s office on February 20, 2009, and reported that she was

       doing well until recently, when her symptoms returned. She reported that the pain in her neck

       was “intolerable” and that she would occasionally experience shooting pain down her right arm.


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       Dr. Lim recommended that she have a new MRI taken. Plaintiff received a second epidural

       injection in her cervical spine on March 10, 2009. She told Dr. Lim on March 25, 2009, that after

       this second injection, she was “about 80 percent better,” but was still taking medication to

       manage her pain. Plaintiff testified that the relief from her second epidural injection lasted about

       four to five months. Plaintiff did not see any doctors from April 13, 2009, until August 28, 2009.

¶ 18          Plaintiff returned to see Dr. Lim on August 28, 2009, and reported that her pain had

       returned. She reported that it was identical to the pain she had been experiencing before in her

       neck and going down her shoulder and arm. Dr. Lim testified that the fact that plaintiff’s pain

       returned meant that there was still a problem causing her symptoms and that the epidural

       injections were providing her only temporary relief by helping relieve her pain symptoms. On

       September 23, 2009, plaintiff returned to Dr. Lim’s office because she had experienced several

       episodes of pain shooting down her right leg into her foot. Dr. Lim recommended that that

       plaintiff get a new MRI.

¶ 19          On September 24, 2009, plaintiff received another epidural injection to her cervical spine,

       and on September 28, plaintiff had an MRI taken of her lumbar spine. Plaintiff visited Dr. Lim

       again on October 9, 2009, and reported no improvement in her condition and that the most recent

       epidural injection had provided her “no relief whatsoever.” Dr. Lim discussed plaintiff’s surgery

       options with her and told her that the surgery had an 80% success rate. Plaintiff next met with

       Dr. Lim on January 8, 2010, and reported that her symptoms were progressive and that she was

       having more weakness and more problems. Dr. Lim ordered a new MRI for plaintiff and again

       discussed surgical options with her.

¶ 20          Plaintiff had an MRI on February 1, 2010, and met with Dr. Robinson, a pain

       management doctor on February 22, 2010. On March 9, 2010, Dr. Robinson recommended that


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       plaintiff get more injections to her cervical spine and go through another course of physical

       therapy. Plaintiff completed the physical therapy in March and April of 2010, which she stated

       helped reduce the frequency and severity of her pain. Dr. Robinson gave plaintiff an epidural

       injection in her cervical spine on July 19, 2010, which plaintiff told Dr. Robinson on August 3,

       2010, gave her “80 percent improvement.” Plaintiff did not visit with any doctors between

       August 3, 2010, and June 15, 2011. Plaintiff reported that during that time, the severity of her

       pain was reduced and she was able to perform household activities, but was still taking

       prescription medication to manage her pain.

¶ 21          Plaintiff returned to see Dr. Robinson on June 15, 2011, and reported that she was doing

       well until December 2010, when her pain started to return. Dr. Robinson recommended that

       plaintiff get a facet injection, which she reported gave her about “75 percent relief” when she

       saw Dr. Robinson again on August 10, 2011. Plaintiff met with Dr. Robinson a few more times

       that year for further pain management treatment. In November 2011, plaintiff got another MRI of

       her cervical spine.

¶ 22          Plaintiff returned to Dr. Lim’s office on April 3, 2012, and reported that she continued to

       by symptomatic with respect to her cervical spine. Dr. Lim conducted a physical examination of

       plaintiff and noted that she had a positive Spurling's test (irritation upon the nerve) on both sides

       of her neck. Dr. Lim also noted that plaintiff had weakness in her left wrist that was “most

       likely” related to the nerve problem in her neck. Dr. Lim reviewed plaintiff’s MRI from

       November 2011, and observed a herniated disc at the C5-C6 level. Dr. Lim again discussed

       plaintiff’s surgical options with her. Dr. Lim testified that to a reasonable degree of medical

       certainty, all of the treatment and other procedures plaintiff underwent up to this point in her




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       treatment were reasonably necessary and related to the automobile collision that occurred on July

       28, 2008.

¶ 23          On cross-examination, defense counsel asked Dr. Lim whether the herniated disc shown

       in plaintiff’s November 2011 MRI was caused by the automobile accident. Dr. Lim responded

       that he could not say with 100% certainty that the herniated disc was caused by the accident, but

       added that:

                     “You can damage the dis[c]. [The d]is[c] has very little capability to heal and

                     if patients remain symptomatic, typically the dis[c] is damaged and then

                     eventually it’s going to rupture. So the fact that [the herniated disc may not

                     have been present in plaintiff’s earlier MRIs] doesn’t necessarily rule out the

                     fact that it wasn’t caused by the motor vehicle accident. But on the other side

                     of the coin, I can’t say a hundred percent that it was, without question, related

                     to the motor vehicle accident.”

       Defense counsel clarified that Dr. Lim did not “have an opinion one way or the other” whether

       plaintiff’s herniated disc was caused by the automobile collision, and Dr. Lim confirmed that he

       could not “give [] an opinion based on a reasonable degree of medical and orthopedic certainty.”

¶ 24          On redirect examination, Dr. Lim testified that the trauma caused by the automobile

       accident in this case was sufficient to damage the disc to the level represented in plaintiff’s

       November 2011 MRI. Dr. Lim explained that once the disc is damaged, it does not heal and that

       the degenerative condition may worsen and become accelerated. Plaintiff’s counsel then asked

       Dr. Lim whether plaintiff’s herniated disc was related to the automobile collision.

                         “Q. Okay. Do you know if it’s more probably true or not whether the
                     automobile collision that we’re talking about here—whether it’s more
                     probably true or not that that played a causative role in the herniated dis[c]?
                                                         ***
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                       A. It’s my belief, based on a reasonable degree of medical and orthopedic
                   certainty, that she—this patient probably had some pre-existing degenerative
                   changes that were aggravated by the motor vehicle accident.
                       Q. Okay. And that motor vehicle accident then led—did it lead—did it
                   lead initially to then—I think there was a bulging dis[c] or a dis[c] osteophyte
                   *** initially?
                       A. Well, like I said, I think that’s probably pre-existing degenerative
                   conditions but then the accident unmasked it and she became symptomatic.
                       Q. Okay. So it was there but is—is it your opinion then it was there but not
                   symptomatic and then the auto collision made it symptomatic?
                       A. Correct.
                       Q. And then that went ahead and progressed over time?
                       A. Correct.
                       Q. Leading to this herniated dis[c]?
                       A. Correct.
                                                        ***
                       Q. Did it lead to this herniated dis[c] condition?
                       A. I believe so.”

       On recross-examination, Dr. Lim reiterated that he could not say with 100% certainty one way or

       the other whether the herniated disc shown in plaintiff’s November 2011 MRI was or was not

       caused by the automobile accident.

¶ 25          On June 11, 2012, plaintiff met with Dr. Malek, a neurosurgeon. Dr. Malek testified that

       his impression was that plaintiff had “persistent cervical radiculopathy clinically in mid- to lower

       cervical distribution that has failed the passage of time, activity restriction, medication, and

       extensive pain management.” Dr. Malek explained that “cervical” refers to the neck and that

       “radiculopathy” is an affliction of the nerves exiting the neck and going down the arm.

¶ 26          Plaintiff returned to see Dr. Malek on August 29, 2012, and he reviewed her MRIs from

       June 19, 2012, and February 1, 2010. Dr. Malek testified that the MRIs showed there was a disc

       herniation at the C5-C6 level. Dr. Malek further testified that the MRIs showed “background

       degenerative changes” that were seen in any person of plaintiff’s age and were incidental. Dr.




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       Malek also testified that the MRIs and other tests showed that plaintiff’s complaints were

       consistent with what the testing showed and her response to treatment.

¶ 27          Plaintiff visited Dr. Malek again on November 7, 2012, and they discussed her treatment

       options. Dr. Malek informed plaintiff that she had two options regarding her treatment: she could

       either have surgery or live with the symptoms. Dr. Malek explained that the surgery would

       consist of fusing the discs at the C5-C6 level which would limit plaintiff’s movement in

       exchange for improvement in her pain. Dr. Malek told plaintiff that the surgery was successful

       90 percent of the time, but that the benefit of the surgery would be decreased the further the date

       of the surgery was from the incident because of chemical changes in the body over time. Dr.

       Malek also informed plaintiff of the inherent risks of surgery, such as infection, lack of

       improvement, need for further surgery in the future, and death.

¶ 28          Plaintiff testified that she did not elect to have the surgery because there was no

       guarantee of success and because of the risks involved with the surgery. Plaintiff saw Dr. Malek

       again in July 2013, but did not see any doctors until she visited Dr. Malek’s office for the last

       time on March 5, 2014. Dr. Malek testified that throughout his treatment of plaintiff and in

       reviewing her medical records from her other physicians, her symptoms have been “consistent

       punctuated by periods of improvement of various lengths related to treatment such as epidural

       injection[s] that helped her temporarily. But her symptoms have been consistent from beginning

       to end.” Dr. Malek testified that the symptoms he treated plaintiff for were related to the

       automobile accident on July 28, 2008, because the accident made the natural degenerative

       process in her spine, which likely would have been asymptomatic throughout her life,

       symptomatic. Dr. Malek explained that he based this opinion on the fact that the emergence of

       her symptoms was contemporaneous with the automobile collision and the findings on the


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       physical examination were consistent with that diagnosis. He also explained that plaintiff’s

       response to treatment gave her a high degree of credibility with respect to her reported pain

       symptoms.

¶ 29          Finally, Dr. Malek testified with regard to whether plaintiff’s symptoms were permanent,

       that she had reached “maximum medical improvement” (MMI). He explained that “she is

       unlikely to change for the better or for the worse” without surgical intervention. Dr. Malek

       further testified that to a reasonable degree of medical and neurological certainty, that plaintiff’s

       symptoms will interfere with her daily living and normal life and that “with or without surgery,

       there’s a permanency to her condition” because without surgery she will continue to experience

       pain and that surgery, even if completely successful, would limit her mobility.

¶ 30          On cross-examination, Dr. Malek stated that degenerative changes in the spine can

       happen regardless of trauma, but in his experience degenerative changes usually become

       symptomatic after a triggering event. Dr. Malek explained that when a person has degenerative

       changes, it predisposes the person to injury, and there is more often than not a triggering event

       that results in the onset of symptoms. He qualified his statement by saying that it is possible for a

       person to develop pain purely from degenerative changes. Dr. Malek also stated that plaintiff’s

       MRI from June 19, 2012, showed a “dis[c] herniation abutting the spinal cord.” Dr. Malek

       explained that on the report accompanying the MRI, the radiologist described the issue with

       plaintiff’s disc as a “protrusion,” which Dr. Malek explained is a synonym for a herniated disc.

¶ 31          At the time of trial, plaintiff was seeing Dr. Goran Tubic for pain management. Plaintiff

       testified that Dr. Tubic administered “cold high radiofrequency ablation injection[s,]” which she

       testified helped with her pain, but did not eliminate it. Plaintiff further testified that she was

       taking prescription medication and testified to her monthly costs for that medication over


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       defendant’s objection. Plaintiff testified that she was taking Zorvolex, which costs her $341 each

       month, Nucynta, which costs her $565 each month, and Lyrica, which costs her $365 or $375

       each month. Finally, plaintiff testified that she still has trouble performing daily household tasks

       because of her pain and that the pain interferes with her sleep.

¶ 32          Plaintiff stated that she did not plan on having the surgery and that she is able to function

       at work and perform household chores, although with some difficulty. Plaintiff testified that as a

       home health nurse, she is not required to perform heavy lifting at work, although she sometimes

       has to move patients in their beds. She testified that she is able to work three or four days a week,

       six to eight hours a day.

¶ 33                                     2. Defendant’s Case-in-Chief

¶ 34          Defendant presented the testimony of Dr. Avi Bernstein. Dr. Bernstein testified that in

       preparation for his testimony, he reviewed Dr. Lim’s notes regarding plaintiff’s treatment and all

       of plaintiff’s MRIs. He also conducted a physical examination of plaintiff. He testified that, in

       his medical opinion, plaintiff suffered an injury from the vehicle collision and then found relief.

       He further testified that when plaintiff visited Dr. Lim in August of 2009, after four months of

       not seeking treatment, the symptoms that she was experiencing were not causally related to the

       automobile collision. Dr. Bernstein believed that plaintiff suffered sprains as a result of the

       accident, and that her pain was an aggravation of those sprains, but that her symptoms from the

       accident lasted only eight months, through March 2009. Dr. Bernstein testified that after the

       initial eight months of treatment, her condition became stable and any further treatment was not

       causally related to the automobile collision.

¶ 35          Dr. Bernstein examined plaintiff in May 2013. He noted that her neck exam was

       “normal” and he did not think she was a candidate for surgery. Dr. Bernstein did not agree with


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       Dr. Malek’s opinion that plaintiff’s injuries were ongoing and permanent because of the gaps in

       her treatment. Because of these gaps in her treatment, Dr. Bernstein testified that the pain

       plaintiff experienced in June 2011 could not be tied to the automobile collision. He believed that

       this pain was instead “just a reflection of the fact of a degenerative dis[c].”

¶ 36           On cross-examination, Dr. Bernstein acknowledged that the pain plaintiff is having now

       and throughout her treatment is the same pain she was complaining of immediately following the

       collision. Dr. Bernstein also acknowledged that the pain could limit her throughout her life. Dr.

       Bernstein stated that 70% of his work has been testifying for the defense in cases similar to the

       one at bar. Following the conclusion of the testimony, the parties stipulated that plaintiff incurred

       $95,548.04 in medical expenses, but defendant admitted that only $35,851.11 of those expenses,

       incurred through March 25, 2009, were reasonable, necessary, and related to the automobile

       collision.

¶ 37                                  3. Defendant’s Motion in Limine 16

¶ 38           Before closing argument, the court held a hearing on defendant’s motion in limine 16. At

       the hearing, defendant asserted that plaintiff failed to specify a dollar amount for the future

       medical expenses she was seeking in her Rule 213(f) disclosures. Defendant further contended

       that there was insufficient testimony to support the future cost of her prescription medication

       because no physicians testified regarding the amount of any future costs and there was no

       testimony regarding how long plaintiff would need to take any prescription medication and in

       what amounts. In denying defendant’s motion, the court noted that Illinois case law provided that

       expert testimony was not necessary if it was reasonable that the future expenses would be

       incurred. The court also observed that plaintiff properly disclosed her claim for future medical

       expenses through her disclosures that Dr. Malek would testify that plaintiff’s condition was


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       permanent. The court noted, however, that it was necessary to give the jury some parameters to

       calculate the amount of the award and noted that it had previously granted plaintiff’s motion in

       limine 22, which reflected a mortality table showing plaintiff’s life expectancy of 38.7 more

       years. The court then denied defendant’s motion in limine 16.

¶ 39                              D. Verdict and Postjudgment Proceedings

¶ 40           Following closing argument, the jury returned a verdict in plaintiff’s favor in the amount

       of $1,301,048.04. The itemized breakdown of that amount showed that the jury awarded plaintiff

       $107,500 for the loss of normal life experienced; $310,250 for the loss of normal life reasonably

       certain to be experienced in the future; $107,500 for pain and suffering experienced; $310,250

       for pain and suffering reasonably certain to be experienced in the future; $95,549.04 for the

       reasonable expense of necessary medical care, treatment, and services received; and $370,000

       for the reasonable expenses of medical care, treatment, and services reasonably certain to be

       received in the future. On June 10, 2015, the trial court entered a judgment on the verdict.

¶ 41          Defendant subsequently filed a posttrial motion, seeking a new trial or remittitur of the

       jury’s verdict. Defendant contended, inter alia, that the trial court erred in overruling her

       objection to Dr. Lim’s opinion that the automobile collision caused plaintiff’s herniated disc, that

       the court erred in denying defendant’s motion in limine 16, and that the court erred in overruling

       defendant’s objection to Dr. Malek’s testimony that plaintiff would suffer loss of normal life in

       the future because he had not examined plaintiff for 15 months before giving his evidence

       deposition. After a hearing, the trial court denied defendant’s motion in a written order.

¶ 42          In its order, the court found that Dr. Malek’s opinion regarding the permanency of

       plaintiff’s condition was admissible, given the totality of the circumstances, and that recency of

       the last examination was only one factor the court could consider. The court further found that


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       plaintiff properly disclosed in her Rule 213(f) disclosures that Dr. Lim would testify that her

       herniated disc was caused by the automobile accident. The court also found that it did not err in

       denying defendant’s motion in limine 16 because the evidence was sufficient to support a claim

       for future medical expenses and the amount awarded was reasonable under the circumstances.

       Finally, the court found that the jury’s verdict was not against the manifest weight of the

       evidence and that defendant was not entitled to a new trial or remittitur. This appeal follows.

¶ 43                                            II. ANALYSIS

¶ 44           On appeal, defendant repeats many of the same arguments contained in her motion for a

       new trial. Specifically, defendant contends that the trial court erred in overruling her objection to

       Dr. Lim’s opinion that the automobile collision caused plaintiff’s herniated disc, that the trial

       court erred in denying defendant’s motions in limine 15 and 16, and that the jury verdict was

       contrary to the manifest weight of the evidence and should be vacated for a new trial or

       remittitur. In support of these arguments, defendant asserts that the record shows that only the

       first eight months of plaintiff’s treatment were reasonably related to the automobile collision and

       that any changes in her condition after that eight-month period were the result of natural

       degenerative changes in her cervical spine. Plaintiff responds that Dr. Lim’s opinion regarding

       the herniated disc was properly disclosed and admitted by the trial court, that the court did not err

       in denying defendant’s motions in limine 15 and 16 where Dr. Malek properly testified that

       plaintiff’s condition was permanent, and that plaintiff’s testimony properly established the cost

       of her future medical expenses for pain medication. Plaintiff also contends that that the record

       shows that all of plaintiff’s pain and symptoms are related to the automobile collision, that the

       jury’s verdict was reasonable and not excessive, and that defendant is not entitled to a new trial

       or remittitur.


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¶ 45                                          A. Standard of Review

¶ 46          Defendant initially contends that she is entitled to a new trial where the jury’s verdict was

       the product of trial errors that unduly affected the outcome of the trial. She maintains that the

       trial court erred in denying her motion for a new trial where these errors deprived her of a fair

       trial. We review the trial court’s denial of a motion for a new trial for abuse of discretion.

       Redmond v. Socha, 216 Ill. 2d 622, 651 (2005).

¶ 47                            1. Dr. Lim’s Testimony Regarding the Herniated Disc

¶ 48          Defendant first contends that the trial court erred in overruling her objection to Dr. Lim’s

       “new opinion” on redirect examination that the automobile accident led to plaintiff’s herniated

       disc. Defendant maintains that in Dr. Lim’s evidence deposition on September 27, 2011, he did

       not testify that the automobile accident caused plaintiff’s herniated disc. Defendant further

       contends that plaintiff’s Rule 213(f) disclosures were filed on February 25, 2011, before the MRI

       showing the herniated disc was taken, and before Dr. Lim’s evidence deposition. Defendant

       recognizes that after Dr. Lim’s evidence deposition, plaintiff provided additional medical

       records, including the November 2011 MRI that showed the herniated disc, but defendant asserts

       that these supplemental disclosures did not provide sufficient notice that Dr. Lim would testify

       that in his opinion the automobile accident led to the herniated disc. Plaintiff responds that Dr.

       Lim’s opinion was properly disclosed in the August 2012 supplemental response to

       interrogatories, which included the November 2011 MRI and a record which showed that Dr.

       Lim had reviewed the MRI and observed that plaintiff continued to be symptomatic with respect

       to her cervical spine.




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¶ 49                                  a. Illinois Supreme Court Rule 213

¶ 50          Illinois Supreme Court Rule 213(f) provides that, upon written interrogatory, the party

       must identify the subjects on which an independent expert witness “will testify and the opinions

       the party expects to elicit.” Ill. S. Ct. R. 213(f)(2) (eff. Jan. 1, 2007). The rule further provides

       that a party “has a duty to seasonably supplement or amend any prior answer or response

       whenever new or additional information subsequently becomes known to that party.” Ill. S. Ct.

       R. 213(i) (eff. Jan. 1, 2007). One of the purposes of Rule 213 is to avoid surprise. Sullivan v.

       Edward Hospital, 209 Ill. 2d 100, 109 (2004). Although an expert witness is not permitted to

       testify to opinions and conclusions not previously disclosed, the expert’s trial testimony does not

       necessarily violate Rule 213 if it is “an elaboration on, or a logical corollary to, the original

       revealed opinion.” Spaetzel v. Dillon, 393 Ill. App. 3d 806, 813 (2009) (citing Brax v. Kennedy,

       363 Ill. App. 3d 343, 355 (2005)). “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

       that discretion.” Sullivan, 209 Ill. 2d at 109 (citing Susnis v. Radfar, 317 Ill. App. 3d 817, 828

       (2000)).

¶ 51                                  b. Plaintiff’s Rule 213 Disclosures

¶ 52          In this case, plaintiff filed her initial Rule 213(f) answers to interrogatories on February

       25, 2011. In those answers, plaintiff identified Dr. Lim as one of plaintiff’s treating physicians

       who may be called to testify at trial. The answers further provided that Dr. Lim would testify

       “that said injuries and symptoms identified in the medical records are caused by the accident”

       and that “[p]laintiff’s condition may deteriorate with age or treatment.” The answers further

       disclosed that Dr. Lim would “rely upon the radiographic studies contained in the medical


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       records.” Finally, plaintiff disclosed that she would “be seeing [Dr. Lim] again before trial either

       for treatment or to update the doctor’s opinion.”

¶ 53          In November 2011, plaintiff had an MRI, which showed a herniated disc in her cervical

       spine. On August 7, 2012, plaintiff filed a supplement to the interrogatory answers filed on

       February 25, 2011. In her supplemental answers, plaintiff disclosed that based upon Dr. Lim’s

       recent examination, plaintiff expected Dr. Lim to testify that she required future and further

       medical treatment to treat her pain and problems related to the automobile collision. Plaintiff

       further disclosed that Dr. Lim “is expected to rely on any and all other medical records of the

       plaintiff from other doctors and hospitals.” Under Dr. Lim’s name on the disclosures is a

       notation to “See attached records.” Attached to the supplemental answers, plaintiff included a

       medical record from April 2, 2012. The record provides that plaintiff “continues to be

       symptomatic with respect to the cervical spine” and that plaintiff’s “MR scan was reviewed from

       November 2011 and shows herniated disc at C5-6. The patient was examined with Dr. Lim and

       he reviewed these studies.” Plaintiff also included a copy of the MRI scan from November 2011.

¶ 54                                     c. Dr. Lim’s Trial Testimony

¶ 55          At trial, Dr. Lim was questioned extensively regarding any link between the automobile

       collision and the disc herniation. On cross-examination, Dr. Lim stated that he could not say with

       100 percent certainty that the disc herniation was related to the automobile collision. On redirect

       examination, Dr. Lim testified that plaintiff had some preexisting degenerative changes in her

       cervical spine that were aggravated by the automobile collision. Dr. Lim further testified that

       over time, this progressed into the herniated disc revealed in the November 2011 MRI. This is

       entirely consistent with the information disclosed by plaintiff in her initial Rule 213(f)

       disclosures and the supplemental answers.


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¶ 56          In her initial answers to interrogatories, plaintiff disclosed that Dr. Lim would testify that

       the injuries and symptoms identified in the medical records were caused by the automobile

       collision and that she would return to see Dr. Lim to update his opinion. In the supplemental

       disclosures, plaintiff included attachments showing that she had returned to see Dr. Lim and he

       had reviewed the November 2011 MRI revealing the herniated disc. She further disclosed that

       Dr. Lim would testify that plaintiff continued to need treatment for the injuries related to the

       automobile collision. Although plaintiff did not specifically state in her disclosures that Dr. Lim

       will testify that plaintiff’s herniated disc was caused by the automobile collision, an expert’s trial

       testimony does not necessarily violate Rule 213 if it is “an elaboration on, or a logical corollary

       to, the originally revealed opinion.” Spaetzel, 393 Ill. App. 3d at 813.

¶ 57          Here, it is a logical corollary that Dr. Lim would testify that plaintiff’s herniated disc was

       caused by the automobile collision where plaintiff disclosed Dr. Lim’s opinion that the injuries

       and symptoms contained in the medical record were caused by the automobile collision and

       supplemented that disclosure with the November 2011 MRI and the medical record showing that

       Dr. Lim had reviewed the MRI and noted that plaintiff continued to be symptomatic with respect

       to her cervical spine. Defendant points out that Dr. Lim did not reveal this opinion in his

       evidence deposition on September 27, 2011; however, defendant concedes that this deposition

       took place before plaintiff’s November 2011 MRI, which first revealed the herniated disc.

       Although the herniated disc did not appear in any of plaintiff’s earlier MRIs, Dr. Lim testified

       that it was related to the automobile collision because the collision caused the degenerative

       condition in her cervical spine to become symptomatic and progress over time leading to the disc

       herniation. Accordingly, we find that Dr. Lim’s testimony was consistent with the disclosures

       contained in plaintiff’s Rule 213(f) answers to interrogatories and the disclosures in the


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       supplemental answer, and we cannot say that the trial court abused its discretion in admitting this

       evidence. Sullivan, 209 Ill. 2d at 109.

¶ 58                                   2. Defendant’s Motion in Limine 15

¶ 59             Defendant next contends that the trial court erred in denying her motion in limine 15 and

       overruling her objections to Dr. Malek’s opinion that plaintiff’s condition was permanent.

       Defendant maintains that Dr. Malek’s opinions regarding plaintiff’s future medical treatment

       were speculative and lacked foundation because she visited him only six times over a two-year

       period and her last visit was more than 15 months before Dr. Malek’s evidence deposition on

       June 18, 2015. Plaintiff responds that the recency of the last examination is only one factor the

       court should consider in determining whether to permit this type evidence and that other factors

       weighed in favor of denying defendant’s motion and overruling her objections.

¶ 60                                          a. Standard of Review

¶ 61             A trial court’s ruling on a motion in limine addressing the admission of evidence will not

       be disturbed on review absent a clear abuse of discretion. Ahmed v. Pickwick Place Owners’

       Ass’n, 385 Ill. App. 3d 874, 891 (2008) (citing Swick v. Liautaud, 169 Ill. 2d 504, 520-21

       (1996)). An abuse of discretion occurs when the ruling is arbitrary, fanciful, or unreasonable or

       when no reasonable person would take the same view. People v. Illgen, 145 Ill. 2d 353, 364

       (1991).

¶ 62                                         b. The Decker Standard

¶ 63             As the parties and the trial court recognized, in determining whether to admit a doctor’s

       testimony regarding future damages or prognosis, the trial court should apply the standard

       developed by the supreme court in Decker v. Libell, 193 Ill. 2d 250 (2000). In Decker, the

       supreme court identified the factors the trial court should consider in determining the


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       admissibility of opinion testimony about the prognosis for a patient’s condition: “the nature of

       the plaintiff’s injury or condition, the type of treatment administered to the plaintiff, the length of

       time the plaintiff was receiving the treatment, the number and frequency of the plaintiff’s visits,

       the length of time between the plaintiff’s last treatment and the witness’ formation of his or her

       opinion, the length of time between the formation of the opinion and the trial, and any other

       circumstances that bear on the relevance and reliability of the proposed testimony.” Id. at

       254. The court should first determine whether the evidence is admissible, and then, if it is, permit

       the trier of fact to determine what weight to assign to it. Id. at 253-54.

¶ 64          In this case, the trial court held several hearings on defendant’s motion in limine 15.

       Ultimately, the trial court recognized that, under the Decker standard, the recency of the exam

       was only one factor the court should consider in determining whether to permit admission of the

       evidence. The court also recognized that the only issue for the court was to determine whether

       the prognosis evidence was admissible and that it was the responsibility of the jury to determine

       the weight to give the evidence once admitted.

¶ 65          In his evidence deposition and at trial, Dr. Malek testified that plaintiff had reached MMI

       (maximum medical improvement), and that her condition was unlikely to change absent surgical

       intervention. He also noted that the longer plaintiff waited to get the surgery, the less relief she

       would realize, but also informed plaintiff that, although the surgery had a 90% success rate, it

       carried inherent risks. Through Dr. Malek’s treatment of plaintiff, he noted that she had periods

       of improvement brought about by her epidural injections, but concluded that plaintiff’s pain and

       symptoms would not be completely resolved without surgery. Even with surgery, Dr. Malek

       testified that her condition was permanent because the surgery would cause her to lose mobility.




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¶ 66          As the trial court recognized in denying defendant’s posttrial motion, Dr. Malek had not

       seen the patient for 14 months before his evidence deposition and for 39 months before trial. Dr.

       Malek also saw plaintiff only six times during a two-year period. The court considered these

       factors in ruling on defendant’s motion, but noted that “it’s the totality of the circumstances,

       that’s the standard the Court is to apply. And the length of time is not determinative, but one of

       the factors that the Court should consider.” The court also recognized, in line with the reasoning

       in Decker, that its ruling merely bore on the admissibility of the evidence, and the jury, as the

       trier of fact, was charged with determining the weight to give the testimony, and could consider

       the recency and frequency of the examinations in assigning that weight.

¶ 67          Defendant nonetheless contends that Dr. Malek’s opinions were lacking in foundation

       and speculative because plaintiff’s conditions and symptoms varied over time. Defendant asserts

       that the record shows that plaintiff had three significant gaps 1 in treatment belying Dr. Malek’s

       opinion that plaintiff’s condition was permanent. Contrary to defendant’s claim, however, the

       record shows that although plaintiff did not seek medical treatment during these “gaps,” she was

       taking her prescribed medication. More importantly, the record shows that plaintiff received

       epidural injections before two of these “gaps,” which both Dr. Malek and Dr. Lim recognized

       provided plaintiff with temporary relief from her pain symptoms, but did not eliminate her

       symptoms or her condition. Both Dr. Lim and Dr. Malek testified that the symptoms plaintiff

       was experiencing throughout her treatment were related to automobile collision. Ultimately, as

       the trial court recognized in ruling on defendant’s motion, the question was one of admissibility

       of Dr. Malek’s testimony. We believe the court correctly applied the Decker factors in

       determining that the evidence was admissible. The factors defendant identifies—such as the

              1
               The three significant gaps identified by defendant are between March 25, 2009, and August 28,
       2009; August 2010 and June 2011; and July 31, 2013, and March 5, 2014.
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       recency of the examination, the frequency of her visits, and the gaps in treatment—were factors

       that the jury could consider in determining the weight to assign to Dr. Malek’s testimony

       regarding the permanency of plaintiff’s condition. See Decker, 193 Ill. 2d at 253-54.

       Accordingly, we find that the trial court did not abuse its discretion in denying defendant’s

       motion in limine 15.

¶ 68                                  3. Defendant’s Motion in Limine 16

¶ 69          Defendant next contends that the trial court erred in denying her motion in limine 16 to

       the extent that plaintiff was allowed to testify to the previously undisclosed cost of her pain

       medication. Defendant maintains that plaintiff failed to disclose in her Rule 213 disclosures that

       she would be seeking a claim for future medical expenses and that there was no expert witness

       testimony regarding the prescription medication plaintiff would need in the future. Plaintiff

       responds that the jury heard from Dr. Lim and Dr. Malek that, absent surgery, which plaintiff

       testified she was not planning to have, plaintiff’s pain was unlikely to be eliminated. Plaintiff

       therefore contends that the jury could infer from this testimony that plaintiff would being taking

       the prescription pain medication for the remainder of her life, the duration of which (38.7 more

       years) was delineated in the mortality table in plaintiff’s motion in limine 22, and the award

       amount adequately reflects the jury’s consideration of that evidence. Defendant replies that

       award was the product of speculation because there was no medical testimony regarding the cost

       of plaintiff’s future medication.

¶ 70          In support of her contention, defendant relies on Briante v. Link, where this court ordered

       remittitur of an award for future medical expenses. Briante v. Link, 184 Ill. App. 3d 812 (1989).

       In Briante, the plaintiff submitted evidence that his past medical bills were $15,763.80 and that

       he would incur an additional expense of $6000 for future medical expenses, for a total of


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       $21,763.80. Id. at 814. The jury’s itemized verdict showed that it awarded the plaintiff $56,000

       for past and future medical expenses, $34,236.20 more than the expenses the plaintiff

       established. Id. On appeal, the plaintiff attempted to justify this excess award amount by

       contending that it represented the cost of future physical therapy. Id. This court rejected that

       theory, however, noting that there was no evidence in the record of a specific medical

       recommendation of a type of therapy and the cost and duration of any physical therapy. Id.

       Accordingly, the court reduced the amount of the award for past and future medical expenses to

       $21,763.80, the amount established at trial. Id.

¶ 71           In contrast to Briante, the plaintiff in this case testified that the cost of her prescription

       medications was between $1270 and $1280 per month. 2 Expert testimony was not necessary to

       establish the dollar amount of future medical expenses. Rainey v. City of Salem, 209 Ill. App. 3d

       898, 907 (1991) 3; see also Levin v. Welsh Brothers Motor Service, Inc., 164 Ill. App. 3d 640, 659

       (1987). Dr. Malek testified that plaintiff had reached MMI and her condition was unlikely to

       change one way or the other, absent surgery. Plaintiff testified that she did not plan to have

       surgery. Based on this evidence, a reasonable person could conclude that plaintiff would

       continue to incur the costs associated with her prescription medication. Rainey, 209 Ill. App. 3d

       at 907 (“Evidence that future medical expenses will be incurred can be inferred from the nature

       of the disability. If the elements of damage presented for the jury’s consideration are proper

       under the facts of the case, then the assessment of damages is preeminently for the jury, even

       though reasonable persons could differ as the amount.”)




               2
               $341 for Zorvolex, $565 for Nucynta, and $365 or $375 for Lyrica.
               3
               The fifth district recently reaffirmed its ruling in Rainey in Bruntjen v. Bethalto Pizza, LLC, 2014
       IL App (5th) 120245.
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¶ 72          Moreover, contrary to defendant’s contention, the jury did not need to speculate as to the

       amount of damages to award given plaintiff’s testimony regarding the cost of her medication and

       the mortality table which reflected a life expectancy of 38.7 more years. Given the evidence that

       plaintiff’s medical expenses in the seven years between the automobile accident and the trial

       were $95,548.04, that plaintiff’s life expectancy was 37.8 years, and that plaintiff’s symptoms

       would not be eliminated without surgery, an award of $375,000 for future medical expenses was

       supported by the evidence. See Diaz v. Legat Architects, Inc., 397 Ill. App. 3d 13, 47 (2009)

       (“Given that his past medical bills were $132,000 for the 6 years between his accident and the

       trial in this case and that his life expectancy was 21 years, an award of $201,000 for future

       medical expenses was supported by the evidence.”).

¶ 73                           B. Manifest Weight of the Evidence or Remittitur

¶ 74          Defendant finally contends that the jury’s verdict was contrary to the manifest weight of

       the evidence and asks this court to vacate the judgment for a new trial or remittitur. Defendant

       asserts that the jury’s award for plaintiff’s future medical expenses was excessive and based on

       speculation. Defendant further maintains that the awards for future loss of normal life and future

       pain and suffering were excessive because the plaintiff testified that she was still able to perform

       household chores and work a “physically demanding” job. Defendant contends that the “verdict

       can be explained only if the jury believed that the accident caused the plaintiff’s herniated disc

       and all of her symptoms for the past seven years.” Defendant contends that the herniated disc

       could not have been related to the automobile accident because it did not manifest until three

       years after the accident.




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¶ 75                                         1. Standard of Review

¶ 76          A trial court should order a new trial if, after weighing the evidence, the court determines

       that the jury’s verdict is contrary to the manifest weight of the evidence. Maple v. Gustafson, 151

       Ill. 2d 445, 454 (1992). A verdict is against the manifest weight of the evidence where the

       opposite conclusion is clearly evident or where the jury’s findings are unreasonable, arbitrary, or

       not based on the evidence. Redmond, 216 Ill. 2d at 651. We review the trial court’s denial of

       defendant’s motion for a new trial for abuse of discretion. Maple, 151 Ill. 2d at 455. Similarly,

       we review the trial court’s ruling on a motion for a remittitur for abuse of discretion. Martinez v.

       Elias, 397 Ill. App. 3d 460, 474 (2009). “A verdict will not be set aside by a court unless it is so

       excessive that it indicates that the jury was moved by passion or prejudice or unless it exceeds

       the necessarily flexible limits of fair and reasonable compensation or is so large that it shocks the

       judicial conscience.” Kindernay v. Hillsboro Area Hospital, 366 Ill. App. 3d 559, 572 (2006).

       The court should not grant a remittitur where the jury’s award falls within the flexible range of

       conclusions reasonably supported by the evidence. Id. at 572.

¶ 77                                2. No Basis for New Trial or Remittitur

¶ 78          The bases of many of defendant’s arguments have been addressed above. Defendant

       contends that the jury’s verdict can be explained only if the jury believed that her herniated disc

       was caused by the automobile accident. Given that Dr. Lim testified that plaintiff’s herniated disc

       was caused by the accident, it was reasonable for the jury to reach such a conclusion. As

       discussed above, Dr. Lim’s testimony regarding plaintiff’s herniated disc was properly disclosed

       and admitted. Furthermore, we have already addressed the amount of the award for plaintiff’s

       future medical expenses and found it reasonable under the circumstances. For similar reasons,

       we find no issues with the jury’s award amounts for plaintiff’s future loss of normal life and


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       future pain and suffering. Plaintiff testified that although she is able to perform household

       chores, she does so with difficulty because of the pain symptoms. We cannot say that the

       amounts awarded exceed “the necessarily flexible limits of fair and reasonable compensation or

       [are] so large that [they] shock[] the judicial conscience.” Kindernay, 366 Ill. App. 3d at 572. In

       sum, there was evidentiary support for the jury’s verdict and the award amount, and we cannot

       say that the trial court abused its discretion in denying defendant’s motion for a new trial or

       remittitur.

¶ 79                                         III. CONCLUSION

¶ 80           For the reasons stated, we affirm the judgment of the circuit court of Cook County.

¶ 81           Affirmed.




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