EVIDENCE & OBJECTIONS: Laying Foundations for Introducing and Raising and Rebutting Evidence

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1 The Chicago Bar Association Presents: EVIDENCE & OBJECTIONS: Laying Foundations for Introducing and Raising and Rebutting Evidence Wednesday, October 16, :00-6:00 p.m. The Chicago Bar Association 321 S. Plymouth Court Level of Instruction: Intermediate Presented by: CBA CLE Committee Also Available: Archived Webcast, DVD Rental, Written Materials Objection! Leading...beyond the scope of direct...improper foundation...evidentiary objections can be the bane of the trial lawyer=s existence. One of the greatest fears for the less experienced practitioner is the prospect of not knowing the proper steps to admit a crucial piece of evidence. Attend this seminar and lay your fears to rest. Hear experienced trial lawyers advise you how to avoid potential pitfalls. Learn when to ask for a side bar and how to present your case smoothly and persuasively without irritating the judge and jury. ANTICIPATING OBJECTIONS DURING THE DISCOVERY PHASE AND MOTIONS IN LIMINE Successful Strategy in Drafting Motions in Limine-When Not to AFlag@ Issues How Many Motions is Too Many Effective Psychological Techniques When to AGive@ and When to ADig In@ Michael E. Holden, Romanucci & Blandin PRACTICAL APPLICATIONS OF LAYING FOUNDATIONS Actual demonstrations of laying foundations for common and not-so-common forms of evidence, including: medical records and bills, photographs, accident diagrams, reconstruction testimony, and self authenticating documents Richard B. Foster, Donohue Brown Mathewson & Smyth LLC TRIAL OBJECTIONS AND EFFECTIVELY RESPONDING TO OBJECTIONS Standard Objections Frequently Raised at Trial Effective Presentations of Objections When Not to Object John L. Nisivaco, Boudreau & Nisivaco, LLC (Moderator HANDLING OBJECTIONS FROM THE JUDICIAL PERSPECTIVE Objections Relating to Opening Statements Closings Arguments Jury Instructions and Juror Questions Hon. Elizabeth M. Budzinski, Associate Judge, Law Division-Trial Section, Circuit Court of Cook County PRESERVING THE RECORD FOR APPEAL Voir Dire Examination of Witnesses Offers of Proof Avoiding Reversible Errors David A. Novoselsky, Novoselsky Law Offices

2 TABLE OF CONTENTS Evidence & Objections: Laying Foundations for Introducing and Raising and Rebutting Evidence October 16, 2013 Anticipating Objections During the Discovery Phase and Motions in Limine Michael E. Holden... CBA3 Practical Applications of Laying Foundations Richard B. Foster, III... CBA131 Trial Objections and Effectively Responding to Objections... CBA155 John L. Nisivaco Preserving the Record for Appeal David A. Novoselsky... CBA169 CBA1

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4 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION JOANNE SALVI, Plaintiff, v. No. 08 L GLENVIEW, INC., a domestic corporation, d/b/a Pizano s Pizza & Pasta, Defendants. PLAINTIFF S MOTION IN LIMINE NO. 1 SOLE PROXIMATE CAUSE NOW COMES the Plaintiff, JOANNE SALVI, by and through her attorneys, ROMANUCCI & BLANDIN, and moves this Honorable Court to bar, in limine, any and all voir dire, statement, testimony, questioning, impeachment, cross-examination, expert testimony, argument, direct or indirect, by inuendo or otherwise, at any time during the course of the trial of this action, before any member of the venire, a panel, or the jury, of evidence or arguments which might suggest to the jury that any Plaintiff, any other party or third person was the sole proximate cause of the subject accident. In support thereof, Plaintiff states as follows: 1. The facts of this case and the testimony before this court fails to support an argument that the Plaintiff, any other party, or a third person was the sole proximate cause of this accident. A sole proximate cause argument requires that the defendant present competent and sufficient evidence that a non-defendant (someone or something is the sole proximate cause of the plaintiff s injury. McDonnell v. McPartlin, 192 Ill.2d 505, 516 (2000; Leonardi v. Loyola University of Chicago, 168 Ill.2d 83 (1995. Sample MIL 001 CBA3

5 2. In this case, Plaintiff expects the Defendant to argue that Joanne Salvi was the sole proximate cause of the incident in question. However, there is ample evidence to prove that the Defendant s negligent conduct was a proximate cause of the incident. Specifically, Plaintiff s uncontested expert testimony will show that the handrail at Pizano s was not in compliance with the requirement of the building code applicable to the Village of Glenveiw at the time of the accident, and that this non-compliance was a proximate cause of the Ms. Salvi s fall and injury. Defendant has not retained any expert and has offered no testimony to show that their noncompliance was somehow otherwise reasonable, or that their non-compliance was not a proximate cause of the occurrence. 3. Moreover, this case is similar to the recent line of cases holding that [i]n addition, the duty of care that arises from the business invitor-invitee relationship encompasses the type of risk-i.e., the negligent act of a third person - that led to the decedent's injuries. Marshall v. Burger King Corp., 222 Ill. 2d 422, 440 (2006 (emphasis added. Here, Plaintiff s contention is that handrails are required because it is well known that people mis-step on stairways. The handrail is a safety device to reduce the risk of injury in the case that someone does misstep. Defendant s failure to have a handrail that was in compliance with the building code was a failure to have a safety device to protect invitees from injury should someone s negligence, including their own, cause them to mis-step while navigating the stairway. Allowing the Defendant to argue that Joanne Salvi s conduct was the sole proximate cause is improper, as it would undercut this holding. See also Dillard v. Walsh Press and Die Company, 224 Ill.App.3d 269, 280 (1 st Dist. 1991, Louis v. Stran Steel Corporation, 57 Ill.2d 94, 100 (1974; see also Dugan v. Sears, 113 Ill.App.3d 740, 744 (1 st Dist Sample MIL 002 CBA4

6 4. In the instant case, there is no evidence that Joanne Salvi is the sole proximate cause of her injuries. To the contrary, the uncontested evidence in this matter will be that the conduct of the Defendant in failing to have a handrail that complied with the Village of Glenveiw building code is the proximate cause of Plaintiff s fall and injury. As such, Defendant should not be allowed to argue that Plaintiff was the sole proximate cause of her own injury. WHEREFORE, Plaintiff, JOANNE SALVI, respectfully requests that this Honorable Court enter an order, in limine, barring any and all voir dire, statement, testimony, questioning, impeachment, cross-examination, expert testimony, argument, direct or indirect, by inuendo or otherwise, at any time during the course of the trial of this action, before any member of the venire, a panel, or the jury, of evidence or arguments which might suggest to the jury that any Plaintiff, or any other party or third person was the sole proximate cause of the subject accident. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC Michael E. Holden ROMANUCCI & BLANDIN, LLC 33 North La Salle Street Suite 2000 Chicago, Illinois / Atty. No.: By: Attorney for Plaintiff Sample MIL 003 CBA5

7 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION JOANNE SALVI, Plaintiff, v. No. 08 L GLENVIEW, INC., a domestic corporation, d/b/a Pizano s Pizza & Pasta, Defendants. PLAINTIFF S MOTION IN LIMINE NO. 2 BAR EVIDENCE OF ISSUANCE OF CERTIFICATE OF OCCUPANCY AND/OR NO CITATIONS FOR CODE VIOLATIONS NOW COMES the Plaintiff, JOANNE SALVI, by and through her attorneys, ROMANUCCI & BLANDIN, and moves this Honorable Court to bar, in limine, any and all voir dire, statement, testimony, questioning, impeachment, cross-examination, expert testimony, argument, direct or indirect, by inuendo or otherwise, at any time during the course of the trial of this action, before any member of the venire, a panel, or the jury, of evidence or arguments which might suggest to the jury that Defendant s building was inspected, that Defendant was issued a certificate of occupancy, or that Defendant was not issued any citation of the building code. In support thereof, Plaintiff states as follows: 1. Plaintiff anticipates that Defendant will offer testimony or evidence, make reference to, or argue that Pizano s was inspected prior to opening, that a certificate of occupancy was issued to Defendant, or that Defendant was not issued any citations for violations of the building code. Sample MIL 004 CBA6

8 2. Such evidence, testimony, reference, or argument should be barred because: (1 such evidence is inadmissible and irrelevant to show non-existence of the violation; (2 Defendant has not retained any expert witnesses who can testify that it would be reasonable for Pizano s to rely on the building inspector regarding knowledge of building code violations; and (3 such evidence would prejudice the jury on the ultimate issue of fact in this matter. 3. Any attempt by the Defendant to offer evidence or testimony that a certificate of occupancy was given to Pizano s or that Pizano s was not cited for any violation of the Glenview Building Code is irrelevant to the question of whether or not a violation existed at the time of the occurrence. It is undisputed that the handrail that was in place at the time of the occurrence was not in compliance with the requirement that it extend beyond the bottom riser. Further, the temporary certificate of occupancy issued by the Village of Glenview prior to the occurrence shows that, as far as stairways are concerned, they are only inspected to determine if they are blocked or used for storage (see Fire Inspection Report, attached hereto as Exhibit A. It in no way states that the stairway or handrail were inspected for compliance with the code. As such, any inference that the issuance of the certificate of occupancy directly or indirectly speaks to the condition of the handrail is patently false. The issuance of the certificate of occupancy is wholly irrelevant to this inquiry. Moreover, to allow Defendant to testify that they were issued a were not made aware of the specific violation of the building code indirectly vouches for the capabilities, the veracity, and the credibility of the inspector performing the inspection of the property without affording Plaintiff an opportunity to cross-examine. 4. Additionally, Defendant chose not to retain any expert witnesses in this matter. Defendant could have hired an expert to testify as to the defect alleged by Plaintiff, the reasonableness of reliance on a building inspection, or that the handrail was in some way Sample MIL 005 CBA7

9 reasonable despite its non-compliance with the code. However, it chose not to do so. Defendant cannot now be allowed to back-door such opinion testimony in by stating that the building was not cited for any handrail violation or that the building was issued a certificate of occupancy without giving Plaintiff an opportunity to depose or cross-examine any witness giving that opinion. Allowing such evidence would severely prejudice Plaintiff s ability to present her case in a fair and impartial manner by eliminating the right of the Plaintiff to cross-examine such witnesses. 5. Lastly, allowing the Defendant to offer such evidence would prejudices the jury on an ultimate question in the case: whether the Defendant s conduct was negligent. See Allen v. Yancy, 57 Ill.App.2d 50, 60 (1 st Dist A witness cannot give his opinion about an ultimate issue in the case; ultimate issues must be decided by the jury. Wawryszyn v. Illinois Centeral R. Co., 10 Ill.App.2d 394, 403 (1 st Dist In Allen v. Yancy, a police officer was called to the stand by defense counsel and was asked whether any tickets were issued following the investigation of the automobile accident. Id. at 57. The police officer responded that no summons were issued and the plaintiff objected to no avail. Id. The Appellate Court of Illinois held that the lower court improperly received into evidence the statement of the officer. Id. at 59. Furthermore, because the testimony had not been stricken, the jury could have improperly inferred that in the officer s opinion the defendant was not at fault. Id. The court found that the conclusion it reached was fully consistent with other Illinois case law. Id. (citing Giles v. Kuennen, 50 Ill.App.2d 389, 394 (2d Dist While Allen dealt with a motor vehicle accident, the proposition it stands for is directly on point. There, an officer was not allowed to testify that a traffic citation was not Sample MIL 006 CBA8

10 issued to the driver. Here, Plaintiff anticipates Defendant will attempt to offer evidence that a citation for a building code violation was not issued to the restaurant. Here, like in Allen, such testiomony is improper because it invades the province of the jury as to the ultimate issue of whether Pizano s used reasonable care in the ownership and operation of the restaurant. Allowing Defendant to offer any such testimony may allow the jury to improperly infer that Defendant s conduct with regard to the handrail was reasonable. WHEREFORE, Plaintiff, JOANNE SALVI, respectfully requests that this Honorable Court enter an order in limine, barring any and all voir dire, statement, testimony, questioning, impeachment, cross-examination, expert testimony, argument, direct or indirect, by inuendo or otherwise, at any time during the course of the trial of this action, before any member of the venire, a panel, or the jury, of evidence or arguments which might suggest to the jury that Defendant s building was inspected, that Defendant was issued a certificate of occupancy, or that Defendant was not issued any citation of the building code. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC Michael E. Holden ROMANUCCI & BLANDIN, LLC 33 North La Salle Street Suite 2000 Chicago, Illinois / Atty. No.: By: Attorney for Plaintiff Sample MIL 007 CBA9

11 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION JOANNE SALVI, Plaintiff, v. No. 08 L GLENVIEW, INC., a domestic corporation, d/b/a Pizano s Pizza & Pasta, Defendants. PLAINTIFF S MOTION IN LIMINE NO. 3 BARRING EVIDENCE OF PLAINTIFF S CONSUMPTION OF ALCOHOL NOW COMES the Plaintiff, JOANNE SALVI, by and through her attorneys, ROMANUCCI & BLANDIN, LLC, and moves this Honorable Court to bar, in limine, any and all voir dire, statements, testimony, questioning, impeachment, cross-examination, expert testimony, argument, direct or indirect, by innuendo or otherwise, at any time during the course of the trial of this action, before any member of the venire, panel, or jury, of evidence or arguments which might suggest to the jury that the Plaintiff consumed alcohol at any time prior to the occurrence. In support thereof, Plaintiff states as follows: 1. Plaintiff anticipates that Defendant may attempt to offer testimony or evidence that Plaintiff had consumed alcohol while she was at Pizano s on the date of the occurrence. Further, Plaintiff anticipates that Defendant will argue that Plaintiff s consumption of alcohol, in some way, contributed to Plaintiff s fall. 2. However, such evidence is improper unless the evidence is sufficient to support a jury determination of intoxication as defined in PIE Sample MIL 008 CBA10

12 3. In order to avoid the unfair prejudicial effect often resulting from the mere mention of alcohol, a party may not introduce evidence of alcohol upon the issue of negligence unless the evidence is sufficient to support a jury determination of intoxication as defined in IPI Ballard v. Jones, 21 Ill.App.3d 496 (1974; Sullivan-Coughlin v. Palos Country Club, 349 Ill.App.3d 553 (2004. The record must contain evidence that the individual consumed alcohol and behaved unusually or inappropriately or evidence in the form of an opinion as to such individual s level of intoxication. Id. It must be show that the alcohol resulted in an actual impairment of mental or physical abilities and a corresponding diminuation in ability to act with ordinary care. Weigman v. Hitch-Inn Post, of Libertyville, 308 Ill.App. 3d 789 (1999; McGrew v. Pearlman, 304 Ill.App.3d 697 (1999. Evidence as to drinking not sufficient to support a finding of intoxication is so highly prejudicial as to be treated as reversible error. Miller v. CTA, 3 Ill.App.2d 223 ( Furthermore, a defendant is required to introduce medical expert testimony or other competent evidence of a causal connection between any consumption of alcohol and the injury at issue. Lagestee v. Days Inn Mgmt. Co., 303 Ill.App. 3d 935 (1999. Defendant s evidence must be sufficient to support a finding by a reasonable jury of the causal connection. Wiker v. Pieprzyca-Berkes, 314 Ill.App.3d 421 ( Here, Defendant cannot offer any evidence that Joanne Salvi s consumption of alcohol on February 11, 2008 rose to the level of intoxication. To the contrary, Defendant s own employees testified at their deposition that, based upon their interaction with Joanne Salvi, they did not believe her to be intoxicated. Likewise, Defendants have not retained any experts in this matter, or will offer the opinion from any witness that Joanne Salvi s consumption of alcohol either caused or contributed to her fall in any way. Sample MIL 009 CBA11

13 6. As such, any evidence, testimony, argument, etc. that Plaintiff had consumed any alcohol on February 11, 2008 is highly prejudicial and should be barred. WHEREFORE, Plaintiff, JOANNE SALVI, respectfully requests that this Honorable Court enter an order, in limine, barring any and all voir dire, statements, testimony, questioning, impeachment, cross-examination, expert testimony, argument, direct or indirect, by innuendo or otherwise, at any time during the course of the trial of this action, before any member of the venire, panel, or jury, of evidence or arguments which might suggest to the jury that the Plaintiff consumed alcohol at any time prior to the occurrence. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC Michael E. Holden ROMANUCCI & BLANDIN, LLC 33 North La Salle Street Suite 2000 Chicago, Illinois / Atty. No.: By: Attorney for Plaintiff Sample MIL 010 CBA12

14 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION JOANNE SALVI, Plaintiff, v. No. 08 L GLENVIEW, INC., a domestic corporation, d/b/a Pizano s Pizza & Pasta, Defendants. PLAINTIFF S MOTION IN LIMINE NO. 5 BAR ANY COMMENT, STATEMENT, REFERENCE, OR EVIDENCE THAT ACCIDENT WOULD HAVE OCCURRED EVEN IF COMPLIED WITH CODE NOW COMES the Plaintiff, JOANNE SALVI, by and through her attorneys, ROMANUCCI & BLANDIN, and moves this Court in limine to bar any and all voir dire, statements, testimony, questioning, impeachment, cross-examination, expert testimony, argument, direct or indirect, by innuendo or otherwise, at any time during the course of the trial of this action, before any member of the venire, panel, or jury, of evidence or arguments which might suggest to the jury that this accident would have happened regardless of Defendant s compliance with building code. In support thereof, plaintiffs state as follows: 1. Plaintiff anticipates that Defendant will attempt to offer evidence or testimony, make reference to or suggest, or argue to the jury that Joanne Salvi s fall would have occurred even if Defendant had complied with the applicable building code. 2. Such evidence, testimony, suggestion, reference, or argument should be barred as being speculative in nature. This is especially true in light of the fact that there were no eyewitnesses to the occurrence to say how Ms. Salvi fell, apart from Ms. Salvi herself. Further, Sample MIL 011 CBA13

15 Defendant has disclosed no expert witness to offer opinions as to causation, or to opine that Ms. Salvi s fall was not as result of Defendant s failure to comply with the building code. Any such testimony by any other lay witness in this case would constitute improper lay opinion testimony. 3. Circumstantial evidence must justify an inference of probability, not mere possibility. Committee Comments to I.P.I , citing McCullough v. Gallaheer & Speck, 254 Ill.App.3d 941 (1st Dist Similarly, herein plaintiff seeks to prohibit defendants from offering opinions and arguing these theories as there is simply no evidence, direct or circumstantial, on any other mechanism of injury. It is clear that although anything is possible, not all things are within a reasonable degree of certainty, and that the introduction of mere possibilities would have a tendency to mislead and confuse the jury, thereby creating false issues for their resolution. Thus, plaintiff seeks to insure that all opinions offered upon the trial of this cause are based on a reasonable degree of certainty and do not consist of mere speculation, guess, or conjecture as to what is possible. 4. Furthermore, our appellate courts have held that expert opinion is only as valid as the reasons for the opinion. Modelski v. Navistar, 302 Ill.App.3d 879, 707 N.E.2d 239 (1999. Testimony grounded in guess, surmise, or conjecture not being regarded as proof a fact, is irrelevant as it has no tendency to make the existence of a fact more or less probable. Id. Expert opinions based upon the witness s guess, speculation, or conjecture as to what he believed might have happened are inadmissible. Id. 5. Here, Defendant chose not to disclose any expert witnesses. As such, it cannot now rely on lay witnesses called at trial to offer opinions only properly offered by qualified experts. Specifically, Defendant cannot seek to offer opinions from lay witnesses regarding the Sample MIL 012 CBA14

16 mechanism of Ms. Salvi s fall when no such witness saw, or even claims to have saw Ms. Salvi s fall. Any such testimony would be purely speculative in nature. WHEREFORE, Plaintiff, JOANNE SALVI, respectfully requests that this Honorable Court enter an order barring any and all voir dire, statements, testimony, questioning, impeachment, cross-examination, expert testimony, argument, direct or indirect, by innuendo or otherwise, at any time during the course of the trial of this action, before any member of the venire, panel, or jury, of evidence or arguments which might suggest to the jury that this accident would have happened regardless of Defendant s compliance with building code. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC Michael E. Holden ROMANUCCI & BLANDIN, LLC 33 North La Salle Street Suite 2000 Chicago, Illinois / Atty. No.: By: Attorney for Plaintiff Sample MIL 013 CBA15

17 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION JOANNE SALVI, Plaintiff, v. No. 08 L GLENVIEW, INC., a domestic corporation, d/b/a Pizano s Pizza & Pasta, Defendants. PLAINTIFFS MOTION IN LIMINE NO. 6 BAR ABSENCE OF PRIOR COMPLAINTS NOW COMES the Plaintiff, JOANNE SALVI, by and through her attorneys, ROMANUCCI & BLANDIN, LLC, and moves this Honorable Court, in limine, to bar mention, reference, remark or interrogation, either directly or indirectly in pleadings, documents or by comments of parties or counsel in the presence or hearing of the jury, during the course of this trial that the Defendant had not received complaints regarding the handrail prior to Plaintiff s fall. In support thereof, Plaintiff states as follows: 1. Plaintiff anticipates that Defendant will attempted to offer testimony or evidence regarding an absence of any prior complaints regarding the subject handrail prior to Plaintiff s fall. 2. Such evidence or testimony is irrelevant as to the issue of whether Defendant was negligent on the date of the occurrence. 3. Evidence which is not relevant is not admissible. Ill. R. Evid., R Relevant evidence means evidence having any tendency to make the existence of a fact that is of Sample MIL 014 CBA16

18 consequence more probable or less probable than it would be without the evidence. Ill. R. Evid., R The fact that Defendant did not receive complaints regarding the handrail prior to February 11, 2008 has no tendency to make the fact that the handrail, as it existed on February 11, 2008, was defective any more probable or less probable. As such, such testimony or evidence should be barred. WHEREFORE, Plaintiff, JOANNE SALVI, moves that this Honorable Court, enter an order barring mention, reference, remark or interrogation, either directly or indirectly in pleadings, documents or by comments of parties or counsel in the presence or hearing of the jury, during the course of this trial that the Defendant had not received complaints regarding the handrail prior to Plaintiff s fall. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC Michael E. Holden ROMANUCCI & BLANDIN, LLC 33 North La Salle Street; Suite 2000 Chicago, Illinois Tel: ( Fax: ( Atty. No.: By: Attorney for Plaintiff Sample MIL 015 CBA17

19 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION JOANNE SALVI, Plaintiff, v. No. 08 L GLENVIEW, INC., a domestic corporation, d/b/a Pizano s Pizza & Pasta, Defendants. PLAINTIFFS MOTION IN LIMINE NO. 7 TO BAR TESTIMONY THAT DEFENDANT RELIED ON ARCHITECT, BUILDING INSPECTOR, CONTRACTOR, OR OTHER NON-PARTY TO ADVISE OF VIOLATION OF BUILDING CODE NOW COMES the Plaintiff, JOANNE SALVI, by and through her attorneys, ROMANUCCI & BLANDIN, LLC, and move this Honorable Court, in limine, to enter an order barring the defendants from introducing any evidence, reference, argument, inference, or questioning regarding the defendant relying on an architect, building inspector, contractor, or other non-party to advise them of a violation of the building code. In support thereof Plaintiffs state as follows: 1. Plaintiff anticipates Defendant will offer evidence or testimony that Defendant relied on an architecht, building inspector, contractor, or some other non-party in advising them of any building code violations, and that they were never advised as such. 2. Any assertion by Defendant that it relied on an architect, contractor, building inspector, or other non-party in advising it of building code violations would essentially be Defendant criticizing the conduct of some non-party. Plaintiff moves to bar such evidence, questions, reference, comment, or argument on the grounds that the conduct of various non- Sample MIL 016 CBA18

20 parties is not at issue in this case, and is not relevant to the trial of this matter. Further, Plaintiff moves to bar such evidence, questions, reference, comment, or argument based on the fact that there is absolutely no evidence in this case that any architect, building inspector, contractor, or some other non-party owed a duty to the Plaintiff, that any of these non-parties breached any duty to the Plaintiff, or that the conduct of any of these non-parties was a proximate cause of Plaintiff s fall and injuries. To allow Defendants to now point at some other company, claiming that this company was responsible for the accident or owed a duty to the Plaintiff only serves to confuse the jury on the issues present, and, more importantly, is not supported by the evidence. 3. Plata Corp. was a sub-consultant hired by Edwards & Kelsey on the subject project. More or less, Plata was hired to review the safety programs for the project, but Earth Tech was hired to be the actual safety inspectors on the jobsite. At no time since this case was filed was Plata Corp. a party to this case. 4. Defendants have not offered any expert opinions or testimony that any of these non-parties had any responsibility for safety at Pizano s, owed a duty to Plaintiff in any capacity, breached a duty to Plaintiff, or that these non-parties conduct was in any way a proximate cause of Plaintiff s fall and injuries. 5. Illinois Rule of Evidence 401 defines relevant evidence as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence. Ill. R. Evid., 401. Illinois Rule of Evidence 402 provides that evidence which is not relevant is not admissible. Ill. R. Evid., In the case at bar, whether these non-parties had any negligence in this case does not have any tendency to make any fact that is of consequence, namely any fact that pertains to Sample MIL 017 CBA19

21 whether Defendants were negligent, any more or less probable. These non-parties have not been named as a as a defendant (or third party defendant at any time during the course of this case, and are not a party at the trial of this matter. As such, the jury will not be asked to weigh any purported negligence of these entities during their deliberations of this case, and any evidence, suggestion, or reference regarding these non-parties as having responsibility to prevent Plaintiff s fall, that these non-parties conduct was a proximate cause of the occurrence, or that they were responsible for safety should be barred. 7. Even if this Court finds this evidence to be relevant under Rule 401, this evidence should be barred under Rule 403 as its prejudicial effect outweighs any probative value it may have. Illinois Rule of Evidence 403 states that evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. As such, even if this Court deems evidence of these non-parties negligence relevant to the trial of this case, such testimony should be barred as being unfairly prejudicial and threatens to confuse the issues and mislead the jury in this case. 8. Evidence of non-parties negligence will only serve to prejudice the jury, will create the potential that the jury will confuse the issues during deliberation, and will likely mislead the jury as to whose negligence to consider during deliberations. To allow Defendants to suggest that someone else was responsible for safety at Pizano s, or that Defendant relied on others for safety, creates the impression that these non-parties had a duty to prevent the evidence. Such suggestion is not supported by the factual evidence in this case, and is not supported by the expert testimony in this matter. Sample MIL 018 CBA20

22 WHEREFORE, Plaintiff, JOANNE SALVI, respectfully requests that this Honorable Court enter an order barring the Defendant from introducing any evidence, reference, argument, inference, or questioning regarding the defendant relying on an architect, building inspector, contractor, or other non-party to advise them of a violation of the building code. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC Michael E. Holden ROMANUCCI & BLANDIN, LLC 33 North La Salle Street; Suite 2000 Chicago, Illinois Tel: ( Fax: ( Atty. No.: By: Attorney for Plaintiff Sample MIL 019 CBA21

23 IN THE CIRCUIT COURT FOR THE TWELFTH JUDICIAL CIRCUIT WILL COUNTY, ILLINOIS ZACHARY MONAHAN, Plaintiff, vs. No.: 07 L 563 JOSEPH GIORDANO, M.D., et al. Defendants. PLAINTIFFS MOTION IN LIMINE NO. 1 TO BAR CUMULATIVE EXPERT TESTIMONY NOW COMES the Plaintiff, ZACHARY MONAHAN, by and through his attorneys, ROMANUCCI & BLANDIN, LLC, and moves this Honorable Court, in limine, to bar duplicative and cumulative testimony by Defendants experts. In support thereof, Plaintiff states as follows: 1. This is a medical malpractice action arising out of Defendant s failure to timely diagnose and treat Plaintiff s bacterial endocarditis in early 2001, resulting in Plaintiff suffering a stroke on May 15, On September 21, 2010, Defendants disclosed their 213(f(3 witnesses. Combined, Defendants disclosed a total of 4 controlled expert witnesses (Dr. Giordano, Dr. Czepiel, Dr. Schwer, and Dr. Flaherty, including 2 retained expert witnesses (Schwer and Flaherty. 3. Each of these witnesses purports to offer testimony as to whether Joseph Giordano, D.O. and Edward Health Ventures complied with the standard of care in the care and treatment of Zachary Monahan in the Spring of The opinions of these 4 witnesses are duplicative of each other, and are nothing more than Defendants attempt to offer several Sample MIL 020 CBA22

24 witnesses to testify as to the relevant standard of care. This is especially apparent in Defendant s disclosures, which states that these witnesses will testify consistent with the opinions and testimony of Drs. Schwer and Flaherty, acknowledging that such testimony would be duplicative of each other. 4. Illinois Rule 403 states that relevant evidence may be excluded if the probative value is outweighed by, among other things, needless presentation of cumulative evidence (See also, Gill v. Foster, 157 Ill.2d 304, 313 (1993. Here, these witnesses are needlessly cumulative of one another. 5. Further, multiple expert witnesses expressing the same opinions on a subject is needlessly cumulative and will be more prejudicial than probative in the matter. It is within this Court s sound discretion to exclude cumulative evidence and bar testimony from an expert that would be duplicative. Dillon v. Evanston Hospital, 199 Ill.2d 483 ( In Dillon, a Illinois Supreme Court case, the trial court barred one of the Defendant s expert witnesses, who purportedly was going to offer testimony that the Defendant doctor complied with the standard of care, on the grounds that this testimony was cumulative with Defendant s other expert witness. 199 Ill.2d at 494. The appellate court found no abuse of discretion in the trial court s ruling. Id. The Supreme Court affirmed, stating, the exclusion of cumulative evidence is within the discretion of the trial court, whose ruling will not be reversed absent a clear abuse of that discretion. [citations omitted] This discretion includes limiting the number of expert witnesses. [citations omitted]. Id. at 495. On appeal, Defendant argued that it was uneven treatment of the parties to bar its expert. Id. at 495. The Supreme Court stated We cannot accept this contention. As in the appellate court, Dr. Sener and the hospital do not indicate how the evidence that Dr. Raaf would have presented, i.e., his opinion that Dr. Sener Sample MIL 021 CBA23

25 had met the medically relevant standard of care, was not cumulative to the testimony of Dr. Vasquez. Id at Defendants should be required to choose which of the witnesses, along with the Defendant, is going to offer testimony as to the standard of care and that Defendants complied with it. Defendants should not be afforded the opportunity to present trial testimony from Dr. Giordano as to whether Dr. Czepiel complied with the standard of care, and from Dr. Czepiel as to whether Dr. Giordano complied with the standard of care, in addition to presenting 2 retained experts to testify that Dr. Giordano and other physicians from Edward Medical Group complied with the standard of care. In attempting to do so, Defendants are seeking to have 3 bites at the apple for each Defendant when Plaintiff gets only 1. Considerations of fundamental fairness among the parties also require that Defendant be limited in their presentation of these witnesses. 8. In the case at bar, the disclosed testimony of the Defendants controlled expert witnesses is cumulative and should be stricken insofar as the witnesses offer the same testimony relating to the standard of care, deviation therefrom, causation and damages, as well as duplicitous testimony regarding the care and treatment of plaintiff. Such testimony would unfairly prejudice Plaintiffs and would be a waste of the trial court s time. 9. Here, like in Dillon, Defendants cannot show that the testimony of Dr. Schwer and Dr. Flaherty is not cumulative. As such, Defendant should be barred from offering any cumulative testimony on the issue of whether Defendants complied with the standard of care in this matter. WHEREFORE, Plaintiff, ZACHARY MONAHAN, respectfully requests that this Honorable Court enter an order barring the cumulative and duplicative testimony of Defendants witnesses, and for any further relief that this Court deems appropriate and just. Sample MIL 022 CBA24

26 Respectfully Submitted, ROMANUCCI & BLANDIN, LLC Stephan D. Blandin Antonio M. Romanucci ROMANUCCI & BLANDIN, LLC 33 North La Salle Street; Suite 2000 Chicago, Illinois Tel: ( Fax: ( By: Attorney for Plaintiff Sample MIL 023 CBA25

27 IN THE CIRCUIT COURT FOR THE TWELFTH JUDICIAL CIRCUIT WILL COUNTY, ILLINOIS ZACHARY MONAHAN, Plaintiff, vs. No.: 07 L 563 JOSEPH GIORDANO, M.D., et al. Defendants. PLAINTIFF S MOTION IN LIMINE NO. 2 TO BAR REFERENCE, COMMENT, ARGUMENT, OR EVIDENCE REGARDING OTHER PHYSICIANS NOT HEARING HEART MURMUR NOW COMES the Plaintiff, ZACHARY MONAHAN, by and through his attorneys, ROMANUCCI & BLANDIN, LLC, and moves this Honorable Court, in limine, to bar Defendants, their attorneys and all other witnesses heard upon the trial of this cause from offering any evidence, questions, testimony, reference, comment, or argument that other Physicians did not hear Zachary Monahan s heart murmur prior to the stroke. In support thereof, Plaintiff states as follows: 1. One of the allegations in this matter is the that the Dr. Giordano, a primary care clinician, failed to properly listen and recognize Zachary Monahan s pre-existing heart murmur prior to his diagnosis of bacterial endocarditis and stroke. 2. It is anticipated that Defendants may offer evidence, ask questions, make reference, comment, or argue that other physicians who treated Zachary Monahan prior to the stroke on May 15, 2001, also failed to recognize and/or hear Plaintiff s heart murmur. 3. Plaintiff moves to bar such evidence, questions, reference, comment, or argument on the grounds that whether other physicians heard or did not hear Plaintiff s heart murmur, prior Sample MIL 024 CBA26

28 to the stroke on May 15, 2001, is not at issue in this case and is not relevant to the trial of this matter. 4. Illinois Rule of Evidence 401 defines relevant evidence as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence. Ill. R. Evid., 401. Illinois Rule of Evidence 402 provides that evidence which is not relevant is not admissible. Ill. R. Evid., In the case at bar, whether other physicians that are not primary care clinicians, that treated Zachary Monahan listened for, heard, or recognized Zachary Monahan s heart murmur prior to May 15, 2001, has no bearing on the issue of whether Defendants heard, listened for, or recognized Zachary Monahan s heart murmur. 6. Further, whether other physicians did or did not listen, hear, or recognize Zachary Monahan s heart murmur is not indicative of the standard of care required of the Defendants. There is no testimony from any witness that these other physicians did or did not comply with the standard of care in their treatment of Plaintiff. Without testimony indicating that the standard of care of these other physicians required or did not require them to listen, hear, and recognize Zachary Monahan s heart murmur, and testimony that the same standard of care that applied to these physicians also applies to the Defendants, testimony regarding whether these physicians heard, listened for, or recognized Plaintiff s heart murmur is nothing more than conjecture and the Defendants saying if they didn t, why should we. 7. Should the Court find that such testimony is relevant, it should still be barred under Illinois Rule of Evidence, 403. Illinois Rule of Evidence 403 states that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair Sample MIL 025 CBA27

29 prejudice, confusion of the issues, or misleading the jury. Ill. R. Evid., 403. Here, the risk that the jury will take such evidence as evidence of the standard of care required of the Defendants, without the required expert testimony opining as such, substantially outweighs any probative value the evidence may have. WHEREFORE, Plaintiff, ZACHARY MONAHAN, respectfully requests that this Honorable Court enter an order barring Defendants, their attorneys and all other witnesses heard upon the trial of this cause from offering any evidence, questions, testimony, reference, comment, or argument that other Physicians did not hear Zachary Monahan s heart murmur prior to the stroke, and for any further relief this Court deems appropriate and just. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC By: Attorney for Plaintiff Stephan D. Blandin Antonio M. Romanucci Michael E. Holden ROMANUCCI & BLANDIN, LLC 33 North La Salle Street Suite 2000 Chicago, Illinois Tel: ( Fax: ( Sample MIL 026 CBA28

30 IN THE CIRCUIT COURT FOR THE TWELFTH JUDICIAL CIRCUIT WILL COUNTY, ILLINOIS ZACHARY MONAHAN, Plaintiff, vs. No.: 07 L 563 JOSEPH GIORDANO, M.D., et al. Defendants. PLAINTIFF S MOTION IN LIMINE NO. 3 TO BAR REFERENCE, COMMENT, ARGUMENT, OR EVIDENCE REGARDING OTHER PHYSICIANS WERE NEGLIGENT IN THEIR CARE OF PLAINTIFF NOW COMES the Plaintiff, ZACHARY MONAHAN, by and through his attorneys, ROMANUCCI & BLANDIN, LLC, and moves this Honorable Court, in limine, to bar Defendants, their attorneys and all other witnesses heard upon the trial of this cause from offering any evidence, questions, testimony, reference, comment, or argument that other Physicians were negligent in their care of Zachary Monahan. In support thereof, Plaintiff states as follows: 1. It is anticipated that Defendants may offer evidence, ask questions, make reference, comment, or argue that other physicians who treated Zachary Monahan failed to comply with the standard of care required of them, and that such failure is the cause of Plaintiff s injuries. 2. Plaintiff moves to bar such evidence, questions, reference, comment, or argument on the grounds that whether other physicians did or did not comply with the standard of care required of them is not at issue in this case, and is not relevant to the trial of this matter. 3. Illinois Rule of Evidence 401 defines relevant evidence as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the Sample MIL 027 CBA29

31 action more probable or less probable that it would be without the evidence. Ill. R. Evid., 401. Illinois Rule of Evidence 402 provides that evidence which is not relevant is not admissible. Ill. R. Evid., In the case at bar, whether other physicians whom treated Zachary Monahan were negligent in their care of Zachary Monahan does not have any tendency to make any fact that is of consequence, namely any fact that pertains to whether Defendants were negligent, any more or less probable. 5. Further, whether other physicians were or were not negligent in their care of Zachary Monahan is not supported by any expert evidence in this case. Plaintiff is not offering any opinion testimony that any physician, other than the Defendants herein, failed to comply with the standard of care. Additionally, Defendants have not offered any expert testimony that relates to the standard of care as it applies to any physician outside of the parties to this case. There is no testimony from any witness that these other physicians did or did not comply with the standard of care in their treatment of Plaintiff. Without the required expert testimony, such testimony, argument, or comment would be nothing more than conjecture. As such, it should be barred from the trial of this matter. WHEREFORE, Plaintiff, ZACHARY MONAHAN, respectfully requests that this Honorable Court enter an order barring Defendants, their attorneys and all other witnesses heard upon the trial of this cause from offering any evidence, questions, testimony, reference, Sample MIL 028 CBA30

32 comment, or argument that other Physicians did not hear Zachary Monahan s heart murmur prior to the stroke, and for any further relief this Court deems appropriate and just. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC By: Attorney for Plaintiff Stephan D. Blandin Antonio M. Romanucci Michael E. Holden ROMANUCCI & BLANDIN, LLC 33 North La Salle Street Suite 2000 Chicago, Illinois Tel: ( Fax: ( Sample MIL 029 CBA31

33 IN THE CIRCUIT COURT FOR THE TWELFTH JUDICIAL CIRCUIT WILL COUNTY, ILLINOIS ZACHARY MONAHAN, Plaintiff, vs. No.: 07 L 563 JOSEPH GIORDANO, M.D., et al. Defendants. PLAINTIFF S MOTION IN LIMINE NO. 4 TO BAR ANY EVIDENCE, COMMENT, REFERENCE, OR ARGUMENT REGARDING PLAINTIFF S ANGER MANAGEMENT ISSUES, POLICE CALLS, AND VIOLENT OUTBURSTS OR PHYSICAL ALTERCATIONS NOW COMES the Plaintiff, ZACHARY MONAHAN, by and through his attorneys, ROMANUCCI & BLANDIN, LLC, and moves this Honorable Court, in limine, to enter an order barring any evidence, comment, reference, or argument regarding any of Zachary Monahan s anger management issues, police calls, or violent outbursts with his ex-wife or other family members. In support thereof, Plaintiff states as follows: 1. It is anticipated that Defendants may seek to offer testimony or evidence, or make comment or reference to, or argument regarding Zachary Monahan s anger management issues, police calls, and/or violent outbursts and actions with his ex-wife or other family members. 2. Such evidence is not relevant to the issues in this case, and would be offered for no other purpose than to prejudice the jury against Mr. Monahan. 3. There is suggestion in the medical records and at the depositions of Zachary Monahan, his ex-wife, his mother, and his grandmother, that, since suffering the stroke in May of 2001, that Zachary Monahan has had difficulty controlling his anger. Further, there is suggestion in the records and testimony that, because of his anger management issues, that there have been Sample MIL 030 CBA32

34 violent outbursts and physical altercations with Plaintiff s ex-wife and other family members, and that the police have been called on Mr. Monahan because of these outbursts and altercations. However, in this case, Plaintiff is not making any claim for damages relating to the anger management issues, and is not claiming that the stroke was the cause of the anger management issues, police calls, violent outbursts, and physical altercations. 4. Under Illinois Rule of Evidence 401, relevant evidence is limited to evidence having any tendency to make the existence of a fact that is of consequence any more probable or less probable that it would be without the evidence. 5. Because Plaintiff is not making a claim for any damages relating to Mr. Monahan s anger issues, any relevance that these items may have had is removed. Whether Mr. Monahan has had anger management issues, whether there have been violent outbursts and/or altercations, and whether police have been called for Zachary Monahan has no tendency to make any fact of consequence any more or less probable, and is not relevant under Illinois Rule of Evidence 401. As such, all such evidence, comment, reference, or argument of any of such conduct should be barred. 6. Further, any relevance that these items may have to the trial of this matter are substantially outweighed by the prejudicial impact that this evidence would have on the jury. As such, even if relevant, this evidence should be barred under Illinois Rule of Evidence 403. WHEREFORE, Plaintiff, ZACHARY MONAHAN, moves this Honorable Court to enter an order barring any evidence, comment, reference, or argument regarding any of Zachary Sample MIL 031 CBA33

35 Monahan s anger management issues, police calls, or violent outbursts with his ex-wife or other family members. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC Stephan D. Blandin Antonio M. Romanucci Michael E. Holden ROMANUCCI & BLANDIN, LLC 33 North La Salle Street; Suite 2000 Chicago, Illinois Tel: ( Fax: ( By: Attorney for Plaintiff Sample MIL 032 CBA34

36 IN THE CIRCUIT COURT FOR THE TWELFTH JUDICIAL CIRCUIT WILL COUNTY, ILLINOIS ZACHARY MONAHAN, Plaintiff, vs. No.: 07 L 563 JOSEPH GIORDANO, M.D., et al. Defendants. PLAINTIFF S MOTION IN LIMINE NO. 5 TO BAR ANY EVIDENCE, COMMENT, ARGUMENT, OR REFERENCE TO ZACHARY MONAHAN S FAMILY HISTORY OF BIPOLAR DISORDER NOW COMES the Plaintiff, ZACHARY MONAHAN, by and through his attorneys, ROMANUCCI & BLANDIN, LLC, and moves this Honorable Court, in Limine, to bar Defendant from offering any evidence or making any comment, reference to, or argument regarding Zachary Monahan s family history of bipolar disorder. In support thereof, Plaintiff states as follows: 1. It is anticipated that Defendants may attempt to offer evidence or make comment, reference, to, or argument that Zachary Monahan s family history of bipolar disorder is the cause of his emotional suffering and/or psychological damages. 2. In the medical records of Zachary Monahan that have been disclosed throughout the discovery process of this case, there is mention that Zachary Monahan has a family history of bipolar disorder. However, nowhere in the medical records or in the testimony of Zachary Monahan s treating physicians, does any physician suggest that Zachary Monahan personally had a history of bipolar disorder at any time prior to the May 15, 2001 stroke. Further, there is no reference in any of the records to any diagnosis of bipolar disorder for Zachary Monahan. Sample MIL 033 CBA35

37 3. Additionally, no physician that has offered testimony in this matter suggests that Zachary Monahan s emotional and psychological issues are in any way related to this family history of bipolar disorder. 4. As such, any evidence, reference, comment, or argument regarding Plaintiff s family history of bipolar disorder is not relevant under Illinois Rule of Evidence 401, and should be barred from mention at the trial of this matter. WHEREFORE, Plaintiff, ZACHARY MONAHAN, moves this Honorable Court to enter an order barring any evidence, comment, reference to, or argument regarding Zachary Monahan s bipolar disorder, and for any further relief this Court deems appropriate and just. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC Stephan D. Blandin Antonio M. Romanucci Michael E. Holden ROMANUCCI & BLANDIN, LLC 33 North La Salle Street; Suite 2000 Chicago, Illinois Tel: ( Fax: ( By: Attorney for Plaintiff Sample MIL 034 CBA36

38 IN THE CIRCUIT COURT FOR THE TWELFTH JUDICIAL CIRCUIT WILL COUNTY, ILLINOIS ZACHARY MONAHAN, Plaintiff, vs. No.: 07 L 563 JOSEPH GIORDANO, M.D., et al. Defendants. PLAINTIFF S MOTION IN LIMINE NO. 7 TO BAR EVIDENCE, REFERENCE, ARGUMENT, INFERENCE, OR QUESTIONING REGARDING DEFENDANT OR DEFENSE COUNSEL: (1 FEELING BAD OR SYMPATHETIC TOWARDS THE PLAINTIFF; (2 THAT THEY TRIED THEIR BEST ; (3 OR THAT THEY ARE SAVED PLAINTIFF S LIFE NOW COMES the Plaintiff, ZACHARY MONAHAN, by and through his attorneys, ROMANUCCI & BLANDIN, and moves this Honorable Court, in limine, to enter an order barring the defendants from introducing any evidence, reference, argument, inference, or questioning regarding defense counsel or the defendant: (1 feeling bad for or being sympathetic towards the Plaintiff; (2 that Defendants tried their best ; or (3 that Defendants saved Plaintiff s life. Any such evidence, reference, inference, questioning, or argument has no relevance under Illinois Rule of Evidence 401 (See also People v. Monroe, 66 Ill.2d 317 (1977. Whether or not defense counsel or the defendant feels bad about this case is irrelevant and has no bearing on the liability of the defendants. Likewise, whether the Defendants tried their best also has no relevance in this case. Further, Defendants cannot claim to have saved Plaintiff s life since the emergent situation that put Plaintiff s life at risk was created by the negligence of the Defendants. Even if this Court find that such comments are relevant, the prejudice to the Plaintiff and the risk that such comments would be improperly considered by the jury warrants Sample MIL 035 CBA37

39 its exclusion under Illinois Rule of Evidence 403 (See also Gill v. Foster, 157 Ill.2d 304 (1993. Such comments and/or argument would only serve to attempt to elicit sympathy from the jury. WHEREFORE, Plaintiffs, ZACHARY MONAHAN, moves this Honorable Court to enter an order barring the defendants from introducing any evidence, reference, argument, inference, or questioning regarding defense counsel or the defendant: (1 feeling bad for or being sympathetic towards the Plaintiff; (2 that Defendants tried their best ; or (3 that Defendants saved Plaintiff s life, and for any further relief this Court deems appropriate and just. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC Stephan D. Blandin Antonio M. Romanucci Michael E. Holden ROMANUCCI & BLANDIN, LLC 33 North La Salle Street; Suite 2000 Chicago, Illinois Tel: ( Fax: ( By: Attorney for Plaintiff Sample MIL 036 CBA38

40 IN THE CIRCUIT COURT FOR THE TWELFTH JUDICIAL CIRCUIT WILL COUNTY, ILLINOIS ZACHARY MONAHAN, Plaintiff, vs. No.: 07 L 563 JOSEPH GIORDANO, M.D., et al. Defendants. PLAINTIFF S MOTION IN LIMINE NO. 11 TO BAR ANY EVIDENCE, COMMENT, REFERENCE, OR ARGUMENT THAT PLAINTIFF SHOULD HAVE VOLUNTEERED HIS HISTORY OF A MURMUR NOW COMES the Plaintiff, ZACHARY MONAHAN, by and through his attorneys, ROMANUCCI & BLANDIN, LLC, and moves this Honorable Court, in limine, to enter an order barring any evidence, comment, reference, or argument that Zachary Monahan should have volunteered his history of a heart murmur without questions from his physicians regarding preexisting cardiac problems: 1. It is anticipated that Defendants may seek to offer testimony or evidence, or make comment or reference to, or argument that Zachary Monahan had the duty or responsibility to volunteer his pre-existing heart murmur without questions from his doctors about any preexisting history of cardiac problems. 2. There is no testimony in this matter from any expert witness that Zachary Monahan had an affirmative duty to notify his physicians of a history of heart murmurs absent direct questions from his physicians regarding his cardiac history. 3. Further, there are no medical records which indicate that Zachary Monahan was ever asked directly about any history of cardiac issues, or that Zachary Monahan ever specifically denied having any cardiac problems. Sample MIL 037 CBA39

41 4. As such, any attempt by Defendants to place a duty on Zachary Monahan is not supported by the evidence in this case and would be nothing more than an attempt to place comparative negligence on Plaintiff, which in not at issue in a medical malpractice case. WHEREFORE, Plaintiff, ZACHARY MONAHAN, moves this Honorable Court to enter an order barring any evidence, comment, reference, or that Zachary Monahan should have volunteered his history of a heart murmur without questions from his physicians regarding preexisting cardiac problems, and for any further relief that this Court deems appropriate and just. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC Stephan D. Blandin Antonio M. Romanucci Michael E. Holden ROMANUCCI & BLANDIN, LLC 33 North La Salle Street; Suite 2000 Chicago, Illinois Tel: ( Fax: ( By: Attorney for Plaintiff Sample MIL 038 CBA40

42 IN THE CIRCUIT COURT FOR THE TWELFTH JUDICIAL CIRCUIT WILL COUNTY, ILLINOIS ZACHARY MONAHAN, Plaintiff, vs. No.: 07 L 563 JOSEPH GIORDANO, M.D., et al. Defendants. PLAINTIFF S MOTION IN LIMINE NO. 12 TO STRIKE TESTIMONY OF DR. CLARK THAT ALL BICUSPID AORTIC VALVES DO NOT PRODUCE A MURMUR NOW COMES the Plaintiff, ZACHARY MONAHAN, by and through his attorneys, ROMANUCCI & BLANDIN, LLC, and moves this Honorable Court, in limine, to enter an order striking the testimony of Dr. Stanley Clark that all bicuspid aortic valves do not produce a murmur. In support thereof, Plaintiff states as follows: 1. One of the issues in this matter is whether Zachary Monahan had an audible heart murmur prior to the May 14, 2001 admission to Edward Hospital. The evidence in this case will show that Zachary Monahan had a congenital bicuspid aortic valve prior to the stroke. 2. At the evidence deposition of Stanley Clark, Plaintiff s treating cardiologist, Dr. Clark testified that all bicuspid aortic valves do not produce an audible murmur. 3. Plaintiff moves to strike such testimony because: (1 whether all bicuspid aortic valves produce an audible murmur is not at issue in this case and is not relevant to whether Zachary Monahan s bicuspid aortic valve produced an audible murmur prior to the May 14, 2001 admission; and (2 Dr. Clark s testimony is a volunteered and undisclosed opinion that was not in response to any question seeking an opinion on the matter. Sample MIL 039 CBA41

43 4. Illinois Rule of Evidence 401 defines relevant evidence as evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence. Ill. R. Evid., 401. Illinois Rule of Evidence 402 provides that evidence which is not relevant is not admissible. Ill. R. Evid., In the case at bar, whether, generally speaking, all bicuspid aortic valves produce an audible murmur has no bearing on the issue of whether Zachary Monahan s congenital bicuspid aortic valve produced an audible murmur prior to the May 14, 2001 admission. 6. In offering this opinion, Dr. Clark did not speak of the specifics of Zachary Monahan s bicuspid aortic valve, only testifying that, generally, all such conditions do not always produce an audible murmur. This testimony has no tendency to make it any more or less probable that Zach Monahan s bicuspid aortic valve produced an audible murmur. 7. Further, as previously stated, such testimony was an opinion volunteered by Dr. Clark and was not in response to any question seeking an opinion on the matter. 8. Lastly, even if this Court find that such testimony is relevant, it should still be barred under Illinois Rule of Evidence, 403. Illinois Rule of Evidence 403 states that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Ill. R. Evid., 403. Here, the risk that the jury will take such evidence as evidence that Zach Monahan s bicuspid aortic valve did not produce an audible murmur far outweighs any probative value this testimony has. WHEREFORE, Plaintiff, ZACHARY MONAHAN, moves this Honorable Court to enter an order barring any evidence, comment, reference, or argument regarding any of Zachary Sample MIL 040 CBA42

44 Monahan s anger management issues, police calls, or violent outbursts with his ex-wife or other family members. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC Stephan D. Blandin Antonio M. Romanucci Michael E. Holden ROMANUCCI & BLANDIN, LLC 33 North La Salle Street; Suite 2000 Chicago, Illinois Tel: ( Fax: ( By: Attorney for Plaintiff Sample MIL 041 CBA43

45 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION PAMELA & MICHAEL TINMAN parents and next friends of their son JAKE TINMAN, a minor, Plaintiffs, vs. No.: 02 L ADVOCATE CHRIST HOSPITAL & MEDICAL CENTER, et al., Defendants. PLAINTIFFS MOTION IN LIMINE NO. 12 TO BAR CUMULATIVE EVIDENCE NOW COME the Plaintiffs, PAMELA TINMAN and MICHAEL TINMAN, as parents and next friends of their son, JAKE TINMAN, a minor, by and through their attorneys, ROMANUCCI & BLANDIN, LLC, and moves this Honorable Court in limine to bar duplicative and cumulative testimony by Defendants experts. In support thereof, Plaintiffs state as follows: 1. This is a medical malpractice action arising out of the care and treatment of Jake Tinman in May On July 14, 2009, Defendants each disclosed their 213(f(3 witnesses. Combined, Defendants disclosed a total of 14 controlled expert witnesses, including 7 retained expert witnesses. Specifically, Defendants seek to introduce testimony from: a. 5 registered nurses (Peterson, Henrichs, Kehoe, Foley, and Konkel, including 1 retained expert witness (Konkel; b. 4 pediatric cardiologists (Muangminsuk, Husayni, Vincent, and Moore, including 2 retained expert witnesses (Vincent and Moore; c. 2 pediatric cardiovascular surgeons (Konstantinov, and Brown, including 1 retained expert witnesses (Brown ; 1 Sample MIL 042 CBA44

46 d. 2 retained pediatric neurologists (Pavlakis and Bale; and e. 1 retained pediatric hematologist, John Paul Scott (in addition to a pediatric hematologist identified as an 213(f(2 treating physician. 3. Further, Defendants, ADVOCATE and HUSAYNI, expressly adopt the expert witnesses disclosed by all co-defendants. 4. Plaintiffs move to bar Defendants 213(f(3 witnesses from testifying as to cumulative and/or duplicative matters. Specifically, Plaintiffs seek the following: a. To bar Defendant, HUSAYNI, from offering any opinion testimony regarding Defendant, MUANGMINSUK s compliance with the Standard of Care as Defendant, MUANGMINSUK, will offer testimony from his own expert on the subject. Further, Dr. Husayni is not qualified to offer any opinion testimony regarding any of the remaining defendants compliance with the standard of care, and such testimony, if allowed, would be duplicative and cumulative since each Defendant will offer testimony from their own expert. b. To bar Defendant, MUANGMINSUK, from offering any opinion testimony regarding Defendant, HUSAYNI s compliance with the standard of care, as Defendant, HUSAYNI, will offer testimony from his own expert on the subject. Further, Dr. Muangmingsuk is not qualified to offer any opinion testimony regarding any of the remaining defendants compliance with the standard of care, and such testimony, if allowed, would be duplicative and cumulative since each Defendant will offer testimony from their own expert. c. To limit the testimony of John Brown, M.D., a surgeon offered by Defendant, ADVOCATE, to the standard of care as it relates to Defendant, KONSTANTINOV. Dr. Brown is not qualified to testify as to any remaining Defendants compliance with the standard of care, and such testimony, if allowed, would be duplicative and cumulative since each Defendant will offer testimony from their own experts on the matter. d. To limit the testimony of Robert Vincent, M.D., a pediatric cardiologist offered by Defendant, ADVOCATE, to the standard of care as it relates to Defendant, MUANGMINSUK. Any testimony by Dr. Vincent as to Defendant, HUSAYNI, would be duplicative and cumulative as Dr. Husayni will offer testimony from his own expert on the matter. Further, Dr. Vincent is not qualified to render any opinion testimony regarding the standard of care of any remaining Defendant, and such testimony would be duplicative and cumulative as each Defendant will offer testimony from their own expert on the matter. 2 Sample MIL 043 CBA45

47 e. To limit the testimony of Terri Konkel, R.N., a nurse offered by Defendant, ADVOCATE, as to the standard of care as it relates to Defendants, PETERSON and HENRICHS. Nurse Konkel is not qualified to offer any opinion testimony as to the standard of care of any of the Defendant physicians in this matter, and such testimony, if allowed, would be duplicative and cumulative. f. To limit the testimony of John Moore, M.D., a pediatric cardiologist offered by Defendant, HUSAYNI, to the standard of care as it relates to Defendant, HUSAYNI. Any testimony by Dr. Moore as to Defendant, MUANGMINGSUK s compliance with the standard of care would be duplicative and cumulative as Dr. Muangminsuk will offer testimony from his own expert on the matter. Further, Dr. Moore is not qualified to render any opinion regarding any remaining Defendants compliance with the standard of care, and such testimony, if allowed would be duplicative as each Defendant will offer testimony from their own expert on the matter. 5. The testimony of these witnesses, if allowed to offer expert opinions regarding the care and treatment of Jake Tinman in May of 1999, will be cumulative and duplicative. If allowed to stand, each Defendant will be given the opportunity to offer testimony from up to 5 expert witnesses to rebut the testimony from Plaintiffs one witness. For example, Defendant, HUSAYNI, a pediatric cardiologist will have the opportunity to offer expert testimony from himself, Sunthorn Muangminsuk, his own retained expert witness, John Moore, and Advocate s retained expert witness, John Brown regarding the pediatric cardiology treatment received by Jake Tinman. The same can be said for Defendant, ADVOCATE. 6. In the case at bar, the disclosed testimony of the Defendants controlled expert witnesses is cumulative and should be stricken insofar as the witnesses offer the same testimony relating to the standard of care, deviation therefrom, causation and damages, as well as duplicitous testimony regarding the care and treatment of plaintiff. Such testimony would unfairly prejudice Plaintiffs and would be a waste of time. 7. Multiple expert witnesses expressing the same opinions on a subject is needlessly 3 Sample MIL 044 CBA46

48 cumulative and will be more prejudicial than probative in the matter. 8. It is within this Court s sound discretion to exclude cumulative evidence and bar testimony from an expert that would be duplicative. Dillon v. Evanston Hospital, 199 Ill.2d 483 (2002. WHEREFORE, Plaintiffs, PAMELA TINMAN and MICHAEL TINMAN, as parents and next friends of JAKE TINMAN, a minor, respectfully ask that this Honorable Court enter an order barring the cumulative and duplicative testimony of Defendants witnesses, and for any further relief that this Court deems appropriate and just. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC Stephan D. Blandin Antonio M. Romanucci ROMANUCCI & BLANDIN, LLC 33 North La Salle Street; Suite 2000 Chicago, Illinois Tel: ( Fax: ( Atty. No.: By: Attorney for Plaintiff 4 Sample MIL 045 CBA47

49 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION PAMELA & MICHAEL TINMAN parents and next friends of their son JAKE TINMAN, a minor, Plaintiffs, vs. No.: 02 L ADVOCATE CHRIST HOSPITAL & MEDICAL CENTER, et al., Defendants. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS MOTION IN LIMINE NO. 12 TO BAR CUMULATIVE EVIDENCE NOW COME the Plaintiffs, PAMELA TINMAN and MICHAEL TINMAN, as parents and next friends of their son, JAKE TINMAN, a minor, by and through their attorneys, ROMANUCCI & BLANDIN, LLC, and moves this Honorable Court in limine to bar duplicative and cumulative testimony by Defendants experts. In support thereof, Plaintiffs state as follows: In Illinois, the trial court has considerable power to exclude evidence that is cumulative, and may bar an expert from testifying if the expert s testimony would be cumulative. Dillon v. Evanston Hospital, 199 Ill.2d 483 (2002; Kotvan v. Kirk, 321 Ill.App.3d 733, (1st Dist. 2001; Hunt v. Harrison, 303 Ill.App.3d 54 (1st Dist The Supreme Court of Illinois has held that it is proper to bar cumulative medical testimony at trial. Dillon, 199 Ill.2d at 364. In Dillon, a retained expert testified that the defendant physician had met the medically relevant standard of care. Id. When the defendant physician attempted to call a second expert regarding the medical standard of care, that 1 Sample MIL 046 CBA48

50 testimony was deemed to be cumulative and was accordingly barred. Id. at 365. The Court found that the cumulative nature of the evidence was prejudicial to the plaintiff. Id. The facts of Dillon are analogous to the instant case. Here, the Defendants will have the opportunity to each call expert witnesses regarding the medical standard of care. It would be possible for each expert to testify not only to the medical standard of care of Defendant ADVOCATE but also to the medical standard of care with regards to Defendant HUSAYNI. This testimony, if it were allowed at trial, would be cumulative, as well as prejudicial to the Plaintiffs, who may only introduce one expert with regards to the medical standard of care for each Defendant. Additionally, the Northern District of Illinois has taken the position that it is generally the practice in this district to prohibit a party from offering multiple experts to express the same opinions on a subject. Commonwealth Ins. Co. v. Stone Container Corp., 2002 WL 38559, *6 (N.D. Ill. Mar. 12, Local Rule of the Northern District of Illinois states that ordinarily, only one [expert] witness on each subject for each party will be permitted to testify absent good cause shown. N.D. Ill. Form LR at 2 n.7; see also Dahlin v. Evangelical Child & Family Agency, 2002 WL , *5 (N.D. Ill. Dec. 18, 2002(court excluded duplicative expert testimony; Sunstar, Inc. v. Alberto-Culver Co., Inc., 2004 WL , *25 (N.D. Ill. Aug. 23, 2004(permitting only one expert to testify at trial on each subject. The rule helps to reduce the unfair possibility that jurors will resolve competing expert testimony by counting heads rather than evaluating the quality and credibility of the testimony. Sunstar, 2004 WL *25. Allowing Defendants expert witnesses to express opinions with regard to the standard of care of both ADVOCATE and HUSAYNI is both needlessly cumulative and a waste of time. 2 Sample MIL 047 CBA49

51 Such testimony, if allowed, would be highly prejudicial and increase the possibility that jurors may count heads instead of properly evaluating the testimony of each party s experts. WHEREFORE, Plaintiffs, PAMELA TINMAN and MICHAEL TINMAN, as parents and next friends of JAKE TINMAN, a minor, respectfully request that this Honorable Court enter an order barring the medical testimony of Defendants expert witnesses as to the standard of care of more than one party as cumulative, and for any further relief that this Court deems appropriate Respectfully Submitted, ROMANUCCI & BLANDIN, LLC Stephan D. Blandin Antonio M. Romanucci 33 N. LaSalle St. Suite 2000 Chicago, IL Tel: ( Fax: ( By: Attorney for Plaintiffs 3 Sample MIL 048 CBA50

52 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION PAMELA & MICHAEL TINMAN parents and next friends of their son JAKE TINMAN, a minor, Plaintiffs, vs. No.: 02 L ADVOCATE CHRIST HOSPITAL & MEDICAL CENTER, et al., Defendants. MEMORANDUM OF LAW IN SUPPORT OF THE USE OF ILLINOIS PATTERN JURY INSTRUCTION 5.01 NOW COME the Plaintiffs, PAMELA TINMAN and MICHAEL TINMAN, as parents and next friends of their son, JAKE TINMAN, a minor, by and through their attorneys, ROMANUCCI & BLANDIN, LLC, and in support of the use of IPI 5.01, state as follows: On May 29, 1999, the physicians treating Jake Tinman performed an echocardiogram in an effort to diagnose his occluded shunt. Plaintiffs contend, and the medical records show, that the echocardiogram revealed a narrowing in the shunt in Jake s heart. Defendant ADVOCATE contends that the echocardiogram was inconclusive, thus necessitating the cardiac catheterization performed later in the day. However, ADVOCATE cannot produce the echocardiogram itself. The failure of a party to produce physical evidence within his control creates a presumption that the evidence, if produced, would have been adverse to him. Beery v. Breed, 311 Ill.App. 469, (2d Dist. 1941; Zegarski v. Ashland Sav. & Loan Ass n, 4 Ill.App.2d 118, 123 (1st Dist The appropriate method of explaining this presumption to the jury is through the reading of Illinois Pattern Jury Instruction ( IPI Shiner v. Friedman, Sample MIL 049 CBA51

53 Ill.App.3d 73 (1st Dist Whether to give IPI 5.01 is a matter within the sound discretion of the trial court. Roeseke v. Pryor, 152 Ill.App.3d 771 (1st Dist Before giving IPI 5.01, the trial court must first determine that in all likelihood, a party would have produced the evidence under the existing facts and circumstances, except for the fact that the contents would be unfavorable. Tuttle v. Fruehauf Corp., 122 Ill.App.3d 835, 843 (1st Dist The instruction is warranted when some evidence is presented on each of the four following elements: (1 the evidence was under the control of the party and could have been produced with the exercise of due diligence, (2 the evidence was not equally available to the adverse party, (3 a reasonably prudent person under such circumstances would have produced the evidence if he believed it would have been favorable to him and (4 there was no reasonable excuse for the failure to produce the evidence. Id. The missing echocardiogram clearly merits giving IPI 5.01, as all four elements of Tuttle are met. The evidence was under the sole control of Defendant ADVOCATE and clearly not available to the Plaintiff. Additionally, if the echocardiogram truly were equivocal as argued by the Defendants, it would be favorable to their position and would have been produced by a reasonably prudent person. Clearly, the first three elements of Tuttle have been met. The final element under Tuttle is that there is no reasonable excuse for the failure to produce the evidence. ADVOCATE maintains that the echocardiogram must have been destroyed, and has not been produced for that reason. However, this excuse is unreasonable. Under Illinois law, ADVOCATE is required to keep all medical records for a minimum of ten years. 210 ILCS 85/6.17 (West If the medical records are material to litigation, Illinois law requires that the records be kept until the litigation ends, provided that the hospital is notified within the first ten years. 210 ILCS 85/6.17 (West While this matter has moved beyond 2 Sample MIL 050 CBA52

54 the ten year mark, a timely claim was filed in this matter in Discovery has been ongoing throughout that time, and ADVOCATE has not been able to produce that portion of Jake s medical records. It is important to note that just last week, ADVOCATE was able to locate Jake s cardiac catheterization films, which they had previously maintained were also destroyed. The fact that the law requires the medical records be kept for at least ten years and longer when litigation is ongoing, combined the fact that ADVOCATE recently located other medical records that were claimed to have been destroyed, leads to the conclusion that the excuse for not producing Jake s echocardiogram was unreasonable. Because there is evidence to satisfy each of the four elements of Tuttle, it is appropriate for this Court to determine that in all likelihood, ADVOCATE would have produced the evidence under the existing facts and circumstances, except for the fact that the contents would be unfavorable, and instruct the jury with IPI WHEREFORE, Plaintiffs PAMELA TINMAN and MICHAEL TINMAN, as parents and next friends of JAKE TINMAN, a minor, respectfully request that this Honorable Court enter an order to provide the jury with Illinois Pattern Jury Instruction Respectfully Submitted, ROMANUCCI & BLANDIN, LLC Stephan D. Blandin Antonio M. Romanucci ROMANUCCI & BLANDIN, LLC 33 North La Salle Street; Suite 2000 Chicago, Illinois Tel: ( Fax: ( Atty. No.: By: Attorney for Plaintiff 3 Sample MIL 051 CBA53

55 IN THE CIRCUIT COURT OF THE 13 TH JUDICIAL DISTRICT, LAW DIVISION OF LASALLE COUNTY GEORGE STEINBACH, as Special Administrator of the Estate of BRYANT STEINBACH, a deceased minor Plaintiff, v. No.: 02 L 87 CSX TRANSPORTATION, INC., a Foreign Corporation, Defendant, PLAINTIFF S MOTION IN LIMINE NO. TO BAR MENTION OF MARIJUANA IN BRYANT STEINBACH S SYSTEM AT TIME OF ACCIDENT NOW COMES the Plaintiff, GEORGE STEINBACH, as Special Administrator of the Estate of BRYANT STEINBACH, deceased, by and through his attorneys, ROMANUCCI & BLANDIN, LLC, and moves this Court bar any mention of marijuana in Bryant Steinbach s system at the time of the accident. In support thereof, Plaintiff states as follows: It is expected that the Defendant will attempt to elicit testimony regarding the fact that Bryant Steinbach had marijuana in his system at the time of the occurrence. However, Defendant has offered no evidence from any qualified witness to suggest that the presence of marijuana in Bryant Steinbach s system of the time of the occurrence contributed to this accident in any way. Any such testimony or evidence serves no purpose in this case other than to prejudice the jury against the Plaintiff. There is no evidence from any witness that Bryant was using marijuana immediately prior the occurrence, nor is there any testimony to suggest that Bryant was in any way intoxicated at the time of the occurrence. As such, such testimony is 1 Sample MIL 052 CBA54

56 completely irrelevant to the issues at the trial of this case, and would serve only to prejudice the jury against Plaintiff. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence. Ill. R. of Evidence, R Under Illinois Rule of Evidence 402, [e]vidence which is not relevant is not admissible. Here, there is nothing that Defendant can point to that would make this testimony relevant to any issue at trial. As such, it should be barred purely on relevance grounds. However, if this Court determines that such testimony has some relevance to some issue in this case, it should be barred under Illinois Rule of Evidence 403, since its prejudicial impact substantially outweighs any probative value. Illinois Rule 403 states that evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Under Illinois law, in order to avoid the unfair prejudicial effect resulting from the suggestion of intoxication or drug use, a party may not introduce evidence of intoxication or drug use upon the issue of negligence unless the evidence is sufficient to support a jury determination of intoxication as defined in IPI-Civil Sullivan-Coughlin v. Palos Country Club, 349 Ill.App.3d 553 (2004 (discussing the admission of testimony regarding alcohol consumption. It must be shown that the use of drugs or alcohol resulted in actual impairment of mental or physical abilities and a corresponding diminution in ability to act with ordinary care. Wiegman v. Hitch-Inn Post, of Libertyville 308 Ill.App.3d 789, (1999 (discussing use of alcohol. 2 Sample MIL 053 CBA55

57 As stated above, there is no testimony from any witness in this case that Bryant Steinbach had ingested marijuana in the hours prior to the occurrence. Further, there is absolutely no testimony from any witness that Bryant Steinbach was, or appeared to be intoxicated from any substance at the time of the occurrence. As such, any evidence offered by Defendants regarding the presence of marijuana in Bryant s system would only serve to prejudice the jury, and should be barred under Rule 403. Further, Defendants have offered no evidence from any witness to suggest that Bryant Steinbach was impaired, either physically or mentally by any substance at the time of the occurrence, or that such impairment caused or contributed to the occurrence itself. As such, any evidence the regarding the presence of marijuana in Bryan Steinbach s system at the time of his death should be barred. WHEREFORE, Plaintiff, GEORGE STEINBACH, as Special Administrator of the Estate of BRYANT STEINBACH, a Deceased Minor, by and through their attorneys, ROMANUCCI & BLANDIN, LLC, respectfully request this Honorable Court to enter an order barring any evidence, testimony, questioning, statement, remark, argument, and/or any other reference to the fact that Bryant Steinbach had marijuana in his system at the time of the accident, and for any further relief this Court deems appropriate and just. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC Stephan D. Blandin Michael E. Holden ROMANUCCI & BLANDIN, LLC 33 North La Salle Street; Suite 2000 Chicago, Illinois Tel: ( Fax: ( Atty. No.: By: Attorney for Plaintiff 3 Sample MIL 054 CBA56

58 IN THE CIRCUIT COURT OF THE 13 TH JUDICIAL DISTRICT, LAW DIVISION OF LASALLE COUNTY GEORGE STEINBACH, as Special Administrator of the Estate of BRYANT STEINBACH, a deceased minor Plaintiff, v. No.: 02 L 87 CSX TRANSPORTATION, INC., a Foreign Corporation, Defendant, PLAINTIFF S MOTION IN LIMINE NO. TO BAR WILLIAM EVANS TESTIMONY NOW COMES the Plaintiff, GEORGE STEINBACH, as Special Administrator of the Estate of BRYANT STEINBACH, deceased, by and through his attorneys, ROMANUCCI & BLANDIN, LLC, and moves this Court bar the opinion testimony of Deputy William Evans, the LaSalle County Sheriff deputy, who re-constructed the accident scene. William Evans is a deputy sheriff with the LaSalle County Sheriff s Department. On the day of the occurrence, Deputy Evans performed an investigation regarding the subject incident and authored a report with conclusions regarding various aspects of the accident. Namely, Deputy Evans opined that, based on his calculations; Bryant Steinbach was traveling between 42.6 and 53.8 miles per hour at the time of the collision (See Report, attached hereto as Exhibit A. However, Deputy Evans opinions regarding the speed of Bryant Steinbach at the time of the occurrence lack sufficient foundation, are improperly calculated, and are based on assumptions made by Deputy Evans during his investigation of the occurrence. As such, Deputy 1 Sample MIL 055 CBA57

59 Evans opinions are inherently unreliable and should be barred at the trial of this matter pursuant to Illinois Rule of Evidence 702. Deputy Evans is not an accident reconstructionist expert and received only minimal training regarding accident reconstruction while serving his duties as a Deputy. Specifically, Deputy Evans attended several one to two-week long courses on accident reconstruction at Northwestern, meeting the minimum requirements for state certification, which he obtained in 1995 (Evans Depo., p There is no continual education required after getting certified (Id.. As such, between 1995 and 2001, the date of this occurrence, Deputy Evans received no further training or education regarding proper accident reconstruction. Further, according to Deputy Evans discovery deposition, there is also no department of the LaSalle County Sheriff s Office dedicated to accident re-construction (Id. at Deputy Evans testified in his discovery deposition that he is a deputy sheriff who does accident reconstructions, which is a task above and beyond his duties. Therefore, Deputy Evans position was as a deputy sheriff, not an accident re-constructionist expert. His opinions in this matter, therefore are lay opinions. According to Illinois Rules of Civil Procedure, Rule 701, if the witness is not testifying as an expert, the witness testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a rationally based on the perception of the witness, and (b helpful to a clear understanding of the witness testimony or the determination of a fact in issue, and (c not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. The opinions that Deputy Evans sets forth can only be concluded by an expert witness with specialized knowledge within the scope of Rule Sample MIL 056 CBA58

60 Moreover, Deputy Evans opinions are inaccurate. In his re-construction of the accident, he makes several assumptions that materially change any calculations as to speed, and materially change how the reconstruction of this occurrence is performed. First and foremost, Deputy Evans makes the assumption that marks in and around the cable were skid marks, and were evidence of Bryant applying the brakes prior to the occurrence. However, at his deposition, Deputy Evans admitted that it was difficult to tell whether the marks depicted in the photographs were skid marks at all. Further, Deputy Evans admitted that there were multiple tire marks from multiple vehicles on the scene of the occurrence, and that his only basis for believing that these marks were skid marks from Bryant s dirt bike was the fact that the mark leads up to furrows in the dirt near where the dirt bike came to rest. Furthermore, Deputy Evans fails to account for the fact that the purported skid mark continues beyond where Bryant was knocked from his dirt bike and, therefore, would not be physically able to apply any breaking whatsoever. As such, the purported skid mark, in all likelihood is merely displaced gravel from the dirt bike traveling over the gravel surface, and is not indicative of any breaking at all. Should the purported skid mark be merely tire marks, it is consistent with Bryant having never seen the cable prior to the collision, with the bike continuing to roll after Bryant was knocked from the dirt bike until it fell at the point the furrow marks appear. If this were to be the case, Bryant s dirt bike would have been traveling at a constant speed prior to striking the cable. Deputy Evans does not take any of these scenarios into consideration in reaching his conclusions in this matter. Additionally, in his calculations of speed, Deputy Evans makes the assumption that Bryant applied full breaking (i.e. both front and rear brakes fully applied and locked. However, 3 Sample MIL 057 CBA59

61 literature and physics dictate that in situations where a 2 wheeled motorcycle fully applies both the front and rear brakes, the operator will be unable to maintain control of the vehicle, which will cause the vehicle to fall from an upright position (See Lynn Fricke, Traffic Crash Reconstruction, Second Edition, 2010, p In this matter, we know that Bryant Steinbach s dirt bike was in an upright position at the time he collided with the cable. As such, it is impossible that Bryant applied both the front and rear brakes prior to the occurrence. Assuming that Bryant Steinbach saw the cable prior to the occurrence and applied his brakes at all, it is more likely that he applied the rear brakes only (partially because if he applied front brakes only, it is unlikely that a rider with Bryant s experience would be able to keep the bike upright. This error causes the speed estimate performed by Deputy Evans to be artificially high, assuming that all other calculations and assumptions made by Deputy Evans are correct. Due to Deputy Evans lack of expertise on the matter, and his material mistakes in the assumptions and calculations made during his reconstruction of this occurrence, Deputy Evans conclusions are inherently unreliable and should be barred in this matter pursuant to Illinois Rules of Evidence 701 and 702. WHEREFORE, Plaintiff, GEORGE STEINBACH, as Special Administrator of the Estate of BRYANT STEINBACH, a Deceased Minor, by and through their attorneys, ROMANUCCI & BLANDIN, LLC, respectfully request this Honorable Court to enter an order barring any opinion testimony of Deputy William Evans. Respectfully submitted, Stephan Blandin ROMANUCCI & BLANDIN 33 North La Salle Street By: Attorney for Plaintiff 4 Sample MIL 058 CBA60

62 Suite 2200 Chicago, Illinois / Atty. No.: Sample MIL 059 CBA61

63 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION RALPH LIVINGSTON, Plaintiff, v. Case No: 04 L WILLIAM EARMAN, D.O., Defendant. PLAINTIFF S MOTION IN LIMINE NO. 6 COMPARISON TO OTHER CASES NOW COMES the Plaintiff, RALPH LIVINGSTON, by and through his attorneys, ROMANUCCI & BLANDIN, and moves this Honorable Court prior to the trial and selection of the jury in this matter in limine to inform the defendant, defendant's witnesses, and defendant s counsel to refrain from statements, remarks, arguments, questions, testimony, introduction of evidence, or any other attempts to convey to the jury information regarding or making any references or comparison to the amount of previous awards or settlements in similar cases or claims arising out of the same or similar circumstances or involving similar injuries or references to verdict or settlements in other cases, including any infamous cases, i.e. McDonald coffee case or the Barton v. Metra case, or that the plaintiff s damage award request should be tested for excessiveness against such other cases through either argument or voir dire. In support thereof, Plaintiff states that argument of this type is highly prejudicial and has been consistently held by the Illinois courts that it is improper to compare or request for damages to the verdicts of other cases. Simmons v. University of Chicago Hospitals, 247 Ill. App. 3d 177, 617 N.E.2d 278 (1st Dist. 1993; Northern Trust Co., v. County of Cook, 135 Ill. App. 3d 329, 481 N.E.2d 957 (1st Dist Sample MIL 060 CBA62

64 WHEREFORE, Plaintiff prays that this Honorable Court, enter an order excluding the aforesaid admission into evidence and prohibiting any questions, arguments or commentary during any stage of the trial relating in any way to the aforesaid. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC By: Attorney for Plaintiff Antonio M. Romanucci, Esq. Stephan D. Blandin, Esq. ROMANUCCI & BLANDIN, LLC 33 North La Salle Street Suite 2000 Chicago, Illinois / Atty. No.: Sample MIL 061 CBA63

65 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION RALPH LIVINGSTON, Plaintiff, v. Case No: 04 L WILLIAM EARMAN, D.O., Defendant. PLAINTIFF S MOTION IN LIMINE NO. 8 COLLATERAL SOURCE PAYMENTS TO PLAINTIFF NOW COMES the Plaintiff, RALPH LIVINGSTON, by and through his attorneys, ROMANUCCI & BLANDIN, and moves this Honorable Court, in limine, to bar mention, reference, remark or interrogation, either directly or indirectly in pleadings, documents or by comments of parties or counsel in the presence or hearing of the jury, during the course of this trial that the Plaintiff, or any of them, have received or are receiving benefits from collateral sources of any kind, including but not limited to Public Aid, Medicare, disability insurance, pension plans, financial assistance and/or medical assistance, or federal aid. Plaintiff further prays that if the issue of Plaintiff s collateral source benefits is revealed to the jury in this matter, that the Court provide a limiting instruction to the jury in the form of: Ladies and Gentleman of the jury I would like to caution you that you shall not speculate about or consider and possible sources of benefits the Plaintiffs may have received or might receive. After you have returned your verdict the court will make whatever adjustments are necessary in this regard. Sample MIL 062 CBA64

66 It is well established in Illinois that evidence of benefits received by a personal injury Plaintiff from collateral sources independent of the tort-feasor will not serve to diminish any damages otherwise recoverable. Lang v. Lake Shore Exhibits, Inc., 305 Ill.App.3d 283, 289 (1 st Dist. 1999; Hammock v. Henry, 222 Ill.App.3d 487 (1 st Dist The First District recognizes that the theory behind this rule is to keep the jury from learning anything about collateral income which could influence the decision of the jury; allowance of any evidence regarding the benefits would render this long standing rule meaningless. Lang, 305 Ill.App.3d at 289. WHEREFORE, Plaintiff prays that this Honorable Court, enter an order excluding the aforesaid admission into evidence and prohibiting any questions, arguments or commentary during any stage of the trial relating in any way to the aforesaid. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC By: Attorney for Plaintiff Antonio M. Romanucci, Esq. Stephan D. Blandin, Esq. ROMANUCCI & BLANDIN, LLC 33 North La Salle Street Suite 2000 Chicago, Illinois / Atty. No.: Sample MIL 063 CBA65

67 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION RALPH LIVINGSTON, Plaintiff, v. Case No: 04 L WILLIAM EARMAN, D.O., Defendant. PLAINTIFF S MOTION IN LIMINE NO. 17 LAWSUIT CRISIS/ TORT REFORM NOW COMES the Plaintiff, RALPH LIVINGSTON, by and through his attorneys, ROMANUCCI & BLANDIN, and moves this Honorable Court, prior to the trial and selection of the jury in this matter, to bar, in limine, any and all voir dire, statement, testimony, questioning, impeachment, cross-examination, expert testimony, argument, direct or indirect, by innuendo or otherwise, at any time during the course of the trial of this action, before any member of the venire, a panel, or the jury, any reference to a litigation or lawsuit crisis, litigation explosion, the need for tort reform, or the like, or the effect a verdict for the Plaintiff and against Defendants. Such evidence is irrelevant and has no bearing on the issues in this case. See Kolakowski v. Voris, 94 Ill. App. 3d 404, (1st Dist. 1981; Torrez v. Raag, 43 Ill. App. 3d 779, 783 (2d Dist Further, Plaintiff moves to bar any reference to any type of litigation explosion, tort reform, or eluding to what effect an award for the Plaintiff would have on the taxpayers, the jurors, insurance premiums, the economy, or the defendant. Rush v. Handy, 255 Ill.App.3d 352 Sample MIL 064 CBA66

68 (4 th Dist. 1993; Kowalski v. Voris, 94 Ill.App.3d 404 (1 st Dist. 1981; Torrez v. Raag, 43 Ill.App.3d 799 (2 nd Dist. 1976; Lukch v. Angeli, 31 Ill.App.2d 20 (1 st Dist WHEREFORE, Plaintiff moves this Honorable Court, in limine, to bar reference to or introduction of the foregoing by Defendants, their counsel or witnesses, at anytime during the trial of this action in the presence of the venire, a panel or the jury. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC Antonio M. Romanucci, Esq. Stephan D. Blandin, Esq. ROMANUCCI & BLANDIN, LLC 33 North La Salle Street Suite 2000 Chicago, Illinois / Atty. No.: By: Attorney for Plaintiff Sample MIL 065 CBA67

69 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION RALPH LIVINGSTON, Plaintiff, v. Case No: 04 L WILLIAM EARMAN, D.O., Defendant. PLAINTIFF S MOTION IN LIMINE NO. 22 TREATING DOCTORS NOT MEETING WITH DEFENSE ATTORNEY NOW COMES the Plaintiff, RALPH LIVINGSTON, by and through his attorneys, ROMANUCCI & BLANDIN, and before the trial and selection of the jury of this cause, move this Honorable Court, in limine, to bar mention, reference, remark or interrogation, either directly or indirectly in pleadings, documents, or by comments of parties or counsel in the presence or hearing of the jury, during the course of this trial, that counsel for the Defendant did not have an opportunity to meet with Plaintiff's treating physicians and in support thereof states as follows: It is anticipated that at the time of trial that counsel for the Defendants may attempt to elicit testimony that Plaintiff s medical care providers did not meet with Defendants attorneys prior to their testimony or that Plaintiff s counsel arranged the date and time of the medical care provider s testimony. Any attempt by Defendants attorneys to ask such questions can only serve to imply that there was some impropriety with a doctor meeting with Plaintiff s attorney. Such inference is not only highly improper, but said questioning flies in the face of the well established rule in Illinois that a defense attorney in a personal injury action is prohibited from interviewing the plaintiff's Sample MIL 066 CBA68

70 treating physician ex parte. Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 499 N.E.2d 952, 966 (1st Dist cert. denied. While IPI (Civil 3d attempts to offset the 'ancient trick' of implying that there is impropriety with a witness meeting with one of the attorneys, said instruction cannot offset the implication that counsel herein is attempting to establish, i.e., that plaintiff's medical witnesses refused to meet with Defendant s attorney. Allowing Defendant s attorney to imply that his compliance and a treating doctor's compliance with Illinois law somehow benefits the plaintiff or somehow disadvantaged the defendant is highly improper and can only serve to mislead the jury. WHEREFORE, Plaintiff prays this Honorable Court for an order barring the Defendant s counsel from questioning Plaintiff's treating physicians as to whether said physicians met with, or had the opportunity to meet with Defendant's counsel, as such questioning is highly prejudicial. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC By: Attorney for Plaintiff Antonio M. Romanucci, Esq. Stephan D. Blandin, Esq. ROMANUCCI & BLANDIN, LLC 33 North La Salle Street Suite 2000 Chicago, Illinois / Atty. No.: Sample MIL 067 CBA69

71 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION RALPH LIVINGSTON, Plaintiff, v. Case No: 04 L WILLIAM EARMAN, D.O., Defendant. PLAINTIFF S MOTION IN LIMINE NO. 23 OPINIONS AND TESTIMONY BASED ON MERE POSSIBILITIES NOW COMES the Plaintiff, RALPH LIVINGSTON, by and through his attorneys, ROMANUCCI & BLANDIN, and moves this Court in limine and prior to the commencement of trial to prohibit all witnesses heard upon trial of this cause from making any reference, suggestion, or innuendo regarding testimony and opinions which are merely possibilities and speculation. In support thereof, plaintiff states as follows: ARGUMENT I.P.I. Civil 1.01[2], states that a juror's "verdict must be based upon evidence and not upon speculation, prejudice or sympathy." It is equally certain that expert opinion testimony may not consist of conjecture, guess or speculation. Dyback v. Weber, 114 Ill. 2d 232, 500 N.E.2d 8 (1986. Herein, plaintiff seeks to prohibit the introduction of opinion testimony or argument which is based on a mere possibility of an event. Such testimony is improper as it fails to meet the standard of admissibility, as testimony of a mere possibility is inadmissible as it tends to confuse the issues and mislead the jury. Sample MIL 068 CBA70

72 Circumstantial evidence must justify an inference of probability, not mere possibility. Committee Comments to I.P.I , citing McCullough v. Gallaheer & Speck, 254 Ill.App.3d 941 (1st Dist Similarly, herein plaintiff seeks to prohibit defendants from offering opinions and arguing these theories as there is simply no evidence, direct or circumstantial, on any other mechanism of injury. It is clear that although anything is possible, not all things are within a reasonable degree of certainty, and that the introduction of mere possibilities would have a tendency to mislead and confuse the jury, thereby creating false issues for their resolution. Thus, plaintiff seeks to insure that all opinions offered upon the trial of this cause are based on a reasonable degree of certainty and do not consist of mere speculation, guess, or conjecture as to what is possible. Our appellate courts have held that expert opinion is only as valid as the reasons for the opinion. Modelski v. Navistar, 302 Ill.App.3d 879, 707 N.E.2d 239 (1999. Testimony grounded in guess, surmise, or conjecture not being regarded as proof a fact, is irrelevant as it has no tendency to make the existence of a fact more or less probable. Id. Expert opinions based upon the witness s guess, speculation, or conjecture as to what he believed might have happened are inadmissible. Id. In Modelski, it was reversible error for the trial court to allow Defendant s accident reconstruction witness to present a theory that a tractor had stalled and that the operator was run over by the tractor while standing on the ground. Said witness opinions on a mechanical breakdown, necessitating the operator to dismount the tractor, were based on sheer speculation and inadmissible. 302 Ill.App.3d at 886. WHEREFORE, on the basis of the foregoing, Plaintiff moves in limine that defendants be prohibited from introducing into evidence as to mere possibilities and speculation. Sample MIL 069 CBA71

73 Respectfully Submitted, ROMANUCCI & BLANDIN, LLC By: Attorney for Plaintiff Antonio M. Romanucci, Esq. Stephan D. Blandin, Esq. ROMANUCCI & BLANDIN, LLC 33 North La Salle Street Suite 2000 Chicago, Illinois / Atty. No.: Sample MIL 070 CBA72

74 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS LAW DIVISION, COUNTY DEPARTMENT ANDRZEJ SWIDERSKI, SR., Individually and as Special Administrator of the Estate of ANDRZEJ SWIDERSKI, JR., Deceased, Plaintiff, v. v. No. 04 L GEORGE KARKAZIS, Individually and as Special Administrator of the Estate of STELLA KARKAZIS, Deceased, as Trustee of the Stella Karkazis Trust, No , held at Northern Trust, and as Landlord and Owner of Strip Mall at 6352 N. Milwaukee Ave., Chicago, IL, Defendant. MEMORANDUM IN SUPPORT OF PLAINTIFF S MOTION IN LIMINE NO. TO BAR REFERENCES TO THE CHARACTER OF ANDRZEJ SWIDERSKI, JR. NOW COMES the Plaintiff, ANDRZEJ SWIDERSKI, SR., Individually and as Special Administrator of the Estate of ANDRZEJ SWIDERSKI, JR., Deceased, by and through his attorneys, ROMANUCCI & BLANDIN, and moves this Honorable Court, in limine, to preclude any references by the parties to the character and criminal background of ANDRZEJ SWIDERSKI, JR., and in support whereof states as follows: Plaintiff anticipates that the Defendant will attempt to introduce evidence of prior criminal convictions of Andrzej Swiderski, Jr., on the grounds that they are relevant to damages. In Illinois, character evidence is inadmissible where are party s character is not at issue. In a civil case, the reputation or character of a party is not an issue. Wendell v. Turzynski 128 Ill.App.2d 139, 150, (1st Dist Mr. Swiderski s character is not an issue in this case, and Sample MIL 071 CBA73

75 any reference to his criminal record should be excluded as irrelevant because the probative value of the evidence outweighs its prejudicial effect. All Illinois cases that address the admissibility of evidence regarding the decedent s character are criminal matters where the defendant claims self-defense and the decedent has a violent criminal record. There are no cases inside of Illinois that consider the admissibility of prior convictions of a decedent in a wrongful death claim. However, a number of other jurisdictions have considered the matter. The Supreme Court of New Jersey found that evidence of a decedent s conviction was not relevant to damages claim for loss of advice, guidance, or counsel as a parent, and that the admission of such evidence at trial constituted a reversible error. Johnson v. Dobrosky, 187 N.J. 594, (N.J In Johnson, the court found that the decedent s welfare fraud conviction was not admissible in the wrongful death action where the sole pecuniary damages claim was for loss of the decedent s advice, guidance, and counsel. Id. at The court stated that such general character evidence was not relevant to the relationship that the decedent had with her family or to the probability that she would advise, guide and counsel her children in the future. Id. at 598. They analogized the character of the decedent to the character of the plaintiff in a personal injury action, and stated that the decedent s character is not in issue in a wrongful death action except insofar as it is an element of a particular claim or defense. Id. In another wrongful death matter, an Arizona court found that there was no error in a trial court s ruling to exclude any reference to the decedent s prior felony conviction. Ritchie v. Krasner, 221 Ariz. 288, 211 P , (Ariz.App.Div The trial court found that the claimant-decedent s prior felony conviction could be used only to attack his credibility as a Sample MIL 072 CBA74

76 witness, and the appellate court upheld the ruling, noting that it was not an abuse of discretion to exclude evidence of prior convictions on the basis that its prejudicial effect is greater than the probativeness. Id. at ---, Lastly, Mr. Swiderski s convictions are not admissible under People v. Montgomery, which adopted the then-proposed Federal Rule of Evidence (FRE Ill.2d 510 (1971. The adoption of this rule allows evidence that a witness has been convicted of a crime to be admitted, for the purposes of impeachment only, provided that the probative value of the evidence of the crime is substantially outweighed by the danger of undue prejudice. Id. at In Knowles v. Panopoulos, the Montgomery holding was extended to civil cases. 66 Ill.2d 585 (1977. Mr. Swiderski is not a witness in this matter, and as such his felony convictions are not admissible under this rule. Again, while no Illinois court has considered the matter, the Federal District Court for the Northern District of Illinois published an opinion rulings on motions in limine in Thomas v. Sheahan, and ruled that evidence of the decedent s history of criminal involvement, prior arrests and convictions should be barred in a wrongful death suit. 514 F.Supp.2d 1083, (N.D.Ill In their ruling, the court found that the evidence is not admissible under FRE 609 not only because the decedent is clearly not a witness at the trial, but also because the probative value of the conviction outweighs its prejudicial effect. In conclusion, there are no grounds for introducing any evidence or testimony regarding the prior criminal history of Andrzej Swiderski, Jr., at trial. Any references to his arrests or criminal record are irrelevant, highly prejudicial, and inadmissible for any purpose. Sample MIL 073 CBA75

77 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS LAW DIVISION, COUNTY DEPARTMENT ANDRZEJ SWIDERSKI, SR., Individually and as Special Administrator of the Estate of ANDRZEJ SWIDERSKI, JR., Deceased, Plaintiff, v. No. 04 L GEORGE KARKAZIS, Individually and as Special Administrator of the Estate of STELLA KARKAZIS, Deceased, as Trustee of the Stella Karkazis Trust, No , held at Northern Trust, and as Landlord and Owner of Strip Mall at 6352 N. Milwaukee Ave., Chicago, IL, Defendant. PLAINTIFF S MOTION IN LIMINE NO. 3 BAR LAY OPINIONS RE: SPEED OF MANN VEHICLE NOW COMES the Plaintiff, ANDRZEJ SWIDERSKI, SR, Individually and as Special Administrator of the Estate of ANDRZEJ SWIDERSKI, JR., Deceased by and through his attorneys, ROMANUCCI & BLANDIN, LLC, and moves this Honorable Court to bar any testimony related to a lay opinion of the speed of the Mann Vehicle. Plaintiffs expect that Defendants may refer to lay eyewitness accounts regarding the speed of the Mann vehicle. For instance, in her testimony, Susan Doyle testified that the Mann vehicle was going over 20 miles per hour. (Doyle Depo. at pg Moreover, she also testified that it was going fast for the conditions of being in the parking lot. (Doyle Depo. 34:9 Furthermore, she admitted that she told police that she thought Mann was going about 30 to 40 miles an hour. (Doyle Depo. 36: Other eyewitnesses gave various accounts and guesses about the speed of the vehicle, either in the police report or in their testimony. However, each was a lay bystander, and had no Sample MIL 074 CBA76

78 background in forensic or accident reconstruction, and the estimates vary widely. Therefore, any guesses at the speed of the Mann vehicle by any of these witnesses are mere speculation without any foundation. The only witness in this case that actually establishes the speed of the Mann vehicle is Plaintiff s Expert, Professor Ralph Barnett, who used measurements and a formula involving the coefficient of friction and the weight of the vehicle. (Depo. of Barnett, at Defendant s expert testified that he could not give opinions because a lot of testing [would] be necessary to figure out what the speed of this particular vehicle would be. (Depo. of Wisniewski 54: Surely, if Defendant s expert cannot determine the speeds, even after being provided the measurements and formula that Plaintiff s expert based his calculations on, than a lay bystander cannot give reliable testimony regarding the same subject matter. WHEREFORE, Plaintiff moves this Honorable Court, in limine, to bar reference to or introduction of the foregoing by Defendants, their counsel or witnesses, at anytime during the trial of this action in the presence of the venire, a panel or the jury. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC Antonio M. Romanucci, Esq. David J. Vander Ploeg, Esq. ROMANUCCI & BLANDIN, LLC 33 North La Salle Street, Suite 2000 Chicago, Illinois / Atty. No.: By: Attorney for Plaintiff Sample MIL 075 CBA77

79 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS LAW DIVISION, COUNTY DEPARTMENT ANDRZEJ SWIDERSKI, SR., Individually and as Special Administrator of the Estate of ANDRZEJ SWIDERSKI, JR., Deceased, Plaintiff, v. No. 04 L GEORGE KARKAZIS, Individually and as Special Administrator of the Estate of STELLA KARKAZIS, Deceased, as Trustee of the Stella Karkazis Trust, No , held at Northern Trust, and as Landlord and Owner of Strip Mall at 6352 N. Milwaukee Ave., Chicago, IL, Defendant. PLAINTIFF S MOTION IN LIMINE NO. 4 BAR OPINIONS RE: CAUSATION BY OFFICER HOLLAND-HUELS NOW COMES the Plaintiff, ANDRZEJ SWIDERSKI, SR, Individually and as Special Administrator of the Estate of ANDRZEJ SWIDERSKI, JR., Deceased by and through his attorneys, ROMANUCCI & BLANDIN, LLC, and moves this Honorable Court to bar any opinion testimony regarding the causation of the incident by any witness other than those disclosed pursuant to 213(f(3. Plaintiffs expect that Defendants may refer to an investigating officer s opinions as to the causation of this incident. In her testimony, Officer Talissa Holland- Huels, who took the photographs of the scene of the occurrence, testified that she believed that the cause of this incident was that Mr. Mann put his foot on the accelerator instead of the brake. (Depo. Holland- Huels 49: Moreover, she stated that her opinion was Based on the damage, the injuries and the property damage. (Depo. Holland- Huels 50:2-3. Sample MIL 076 CBA78

80 However, she also testified that she never heard Hyman Mann make any such statements, as she wasn t close enough to overhear any conversations Mr. Mann had with other officers. (Depo. Holland-Huels 51:5-7. Additionally, she said her sole basis for thinking that Hyman Mann had experienced a brake slip was through reports from others (Depo. Holland-Huels 51: Officer Holland-Huels simply took photos of the scene of the occurrence, and did not undertake any investigation of the incident. She is not a detective and has no experience in accident reconstruction. Therefore, her entire opinion as to causation is based solely on hearsay, speculation, and conjecture. Moreover, Defendants did not disclose Officer Holland-Huels as an expert in their 213(f(3 disclosures, nor did their expert base any of his opinions on her conclusions. Therefore, Defense counsel should be barred from surprising the Plaintiff by relying on Officer Holland- Huels opinions as to causation at the time of trial. Futhermore, as their expert did not base his conclusions on this testimony, there is no prejudice to the Defendants arising out of excluding this portion of Officer Holland-Huels testimony. WHEREFORE, Plaintiff moves this Honorable Court, in limine, to bar reference to or introduction of the foregoing by Defendants, their counsel or witnesses, at anytime during the trial of this action in the presence of the venire, a panel or the jury. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC Antonio M. Romanucci, Esq. David J. Vander Ploeg, Esq. ROMANUCCI & BLANDIN, LLC 33 North La Salle Street, Suite 2000 Chicago, Illinois By: Attorney for Plaintiff Sample MIL 077 CBA79

81 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS LAW DIVISION, COUNTY DEPARTMENT ANDRZEJ SWIDERSKI, SR., Individually and as Special Administrator of the Estate of ANDRZEJ SWIDERSKI, JR., Deceased, Plaintiff, v. No. 04 L GEORGE KARKAZIS, Individually and as Special Administrator of the Estate of STELLA KARKAZIS, Deceased, as Trustee of the Stella Karkazis Trust, No , held at Northern Trust, and as Landlord and Owner of Strip Mall at 6352 N. Milwaukee Ave., Chicago, IL, Defendant. PLAINTIFF S MOTION IN LIMINE NO. 5 IN SUPPORT OF ALLOWING STATEMENTS MADE BY ANDRZEJ SWIDERSKI JR. INTO EVIDENCE NOW COMES the Plaintiff, ANDRZEJ SWIDERSKI, SR, Individually and as Special Administrator of the Estate of ANDRZEJ SWIDERSKI, JR., Deceased by and through his attorneys, ROMANUCCI & BLANDIN, LLC, and moves this Honorable Court to allow any testimony regarding statements made by Andrzej Swiderski, Jr. into evidence. Plaintiff believes that Defendant will try to bar any statements made by Andrzej Swiderski, Jr. from the time of the occurrence until his death. Andrzej Swiderski lived for almost half an hour between the time of the occurrence and the time he died. For the majority of that time, he was communicative and responsive to a bystander that was administering him first aid. (Depo of Latin, at 34. This bystander, Lori Latin, stated that initially, Andrzej was only able to make a grunting, growling, whining noise without speaking. (Depo. of Latin, 70:15-20, but that after she calmed him down and asked his name, he was able to answer her. (Depo. of Latin, Sample MIL 078 CBA80

82 30: She administered first-aid, including fashioning a tourniquet out of a belt, which she had to adjust as it was situated on his throat. (Depo. of Latin, 33:18-34:2. During this whole ordeal, he was talking and responding in a very strong Polish accent. (Depo. of Latin, 31:1-5.He was able to give his name and respond to her questions about the tightness of the belt. (Depo. of Latin, 30:17-20, 70: The out-of-court statements made by Mr. Swiderski at the scene are admissible under the spontaneous declaration hearsay exception. The exception is premised upon the idea that excitement caused by an event or condition temporarily impairs the out-of-court declarant s capacity for reflection, thereby producing statements that are free of conscious fabrication. As such, a statement relating to such an event or condition that is made while the declarant is under the stress or excitement from that event or condition is admissible under this exception if the statement expresses the declarer s then-existing state of mind, emotion, sensation, or physical condition, including mental feeling, pain, or bodily health. In re Estate of Holmgren, 237 Ill.App.3d 839 (3d Dist. 1992; In re Marriage of Arcaute, 261 Ill.App.3d 263 (3d Dist A statement, made by one not testifying at trial, will be recognized as a spontaneous declaration or excited utterance when there is: (1 an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2 an absence of time to fabricate; and (3 a relationship between the statement and the circumstances of the occurrence. Morelli v. Ward, 315 Ill.App.3d 492 (3d Dist Mr. Swiderski s statements at the scene clearly fit into each of these elements: a car driving through the window of the store is certainly a startling event, he was still at the scene and had no time or opportunity to fabricate, and his statements were related to the occurrence, most likely his mental feeling, pain, and bodily health at the time. Sample MIL 079 CBA81

83 WHEREFORE, Plaintiff moves this Honorable Court, in limine, to allow reference to or introduction of the foregoing by Plaintiffs, their counsel, or any witnesses, at anytime during the trial of this action, in open court. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC By: Attorney for Plaintiff Antonio M. Romanucci, Esq. David J. Vander Ploeg, Esq. ROMANUCCI & BLANDIN, LLC 33 North La Salle Street Suite 2000 Chicago, Illinois / Atty. No.: Sample MIL 080 CBA82

84 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS LAW DIVISION, COUNTY DEPARTMENT ANDRZEJ SWIDERSKI, SR., Individually and as Special Administrator of the Estate of ANDRZEJ SWIDERSKI, JR., Deceased, Plaintiff, v. No. 04 L GEORGE KARKAZIS, Individually and as Special Administrator of the Estate of STELLA KARKAZIS, Deceased, as Trustee of the Stella Karkazis Trust, No , held at Northern Trust, and as Landlord and Owner of Strip Mall at 6352 N. Milwaukee Ave., Chicago, IL, Defendant. PLAINTIFF S MOTION IN LIMINE NO. 6 PERMIT USE OF DEMONSTRATIVE EXHIBITS, INCLUDING 3-D ANIMATIONS AND A SCALE MODEL NOW COMES the Plaintiff, ANDRZEJ SWIDERSKI, SR, Individually and as Special Administrator of the Estate of ANDRZEJ SWIDERSKI, JR., Deceased by and through his attorneys, ROMANUCCI & BLANDIN, and moves this Honorable Court, in limine, to permit use of demonstrative exhibits depicting wheel stops throughout the course of this trial. The use of this evidence to illustrate the various witnesses testimony is entirely proper under Illinois law. The demonstrative exhibits to be utilized by plaintiffs are relevant, helpful and not misleading. It is well-settled that the use of demonstrative exhibits is favored to help the jury better understand the issues in a case. Burke v. Toledo, P. & W.R.R. Co., 148 Ill.App.3d 208 (1st Dist The admittance of demonstrative evidence rests within the discretion of the trial court. Papas v. Fronczak, 249 Ill.App.3d 42, 51 (1st Dist The relevant inquiry in Sample MIL 081 CBA83

85 determining the admissibility of demonstrative evidence is whether the evidence is relevant, helpful and not misleading. Peterson v. Lou Bachrodt Chevrolet Co., 76 Ill.2d 353 (1979. The same standard applies to medical charts and exhibits being used as demonstrative evidence. Papas, 249 Ill.App.3d at 51. In People v. Burke, for instance, the Court affirmed the use of a railroad crossing standard equipped with cross bars and flashing lights because the standard helped several witnesses... describe the items at the scene of the accident. 147 Ill.App.3d at 213. It is clear that to fully understand the issues in this case, the parties must be able to communicate the layout of this area as it existed on the day in question. Moreover, in order to demonstrate their expert s proposed solution to the problem, it is necessary to depict what the bollards would look like and where they would be located. Plaintiff anticipates that the Defendant will attempt to bar photographs, videos, and models depicting both the condition of the Subway Sandwich Shop in question on the day of the occurrence, and the bollards Plaintiff s expert proposed as a remedy to that condition. Plaintiff believes that Defendant will object on the grounds that any depiction of the bollards is equivalent to showing a subsequent remedial measure. However, Plaintiffs will not be showing the actual attempted subsequent remedial measure, which are the wheel stops that are currently located there. Plaintiff only asks to show the condition of the lot in question and to demonstrate what the bollards would look like once in place. Even if the court finds that the bollards constitute a subsequent remedial measure, the depiction of such is only barred if it is being used for the purpose of proving negligence or culpable conduct. Plaintiff is seeking to use these exhibits for other purposes, including impeachment, establishing the feasibility of a safer design, and other relevant purposes. Sample MIL 082 CBA84

86 First, Plaintiff anticipates that Defendant s expert will testify, consistent with his deposition, where he testified as follows: BY MR. ROMANUCCI: Was there any requirement for the owner to install bollards, vertical bollards? A. No. Q. Was there anything that prevented the owner from installing bollards in this particular case? THE WITNESS: We would have to research that, whether the fire department would have some problems with that in terms of their radiuses and getting in there would be the first place I'd go. Snow removal is a real concern. Those are two things. BY MR. ROMANUCCI: Is there any code requirement that prevented the owner from installing bollards in this parking lot to protect the front of the Subway sandwich shop? A. That's a different question now if you're talking about code requirements. No, there's no code requirements that I know of but, again, I just gave you in terms of vehicles, this is generally defined as the fire lane and I'd have to do a little more research before I ever put that in the drawing to say you can do that. --- Q. Why else wouldn't you install pipe bollards in front of that store other than drainage and snow removal? A. Well, again, I've answered already in terms of, again, I think it causes site [sic] line problems where you have them at least at the frequency that Mr. Barnett is going, people driving in from the streets will have a blind spot, especially -- again, I'm more concerned about little individuals. Again, I think in terms of that close to the driveway or the drive lane, I think causes a real concern as people walk out beyond the pipe bollard. They have no distance between the pipe bollard and the driving vehicle and, in other words, impact can happen immediately and you've got a movable object that is going to crush somebody. I mean, it could be catastrophic. So again, I just believe that's a very hazardous situation to do that in this location. (Depo of Gregory Wisniewski, 67:2-68:23, 92:18-93:12, emphasis added. If the Defense s expert testifies similarly, then the photographs, animation, and model of the location in question in its condition on the day of the incident, and including the placement of bollards, located where the sidewalk meets the pavement, is clearly evidence tending to impeaching the expert s credibility as to whether the bollards pose any risk due to all of the reasons given in his testimony above. By looking at the animation and the models with the naked eye, the jury can see for themselves whether there are any sight line issues. Sample MIL 083 CBA85

87 Second, the photographs, animation, and model of the location in question in its condition on the day of the incident, and including the placement of bollards, also establish the feasibility of a safer design. Since their expert suggests that it would be very hazardous to place the bollards as proposed, it is perfectly legitimate to use the photos to establish the fact that the safer design was in fact feasible. WHEREFORE, plaintiff requests that this Court enter an Order permitting use of demonstrative exhibits of the location in question in its condition on the day of the incident, and including the placement of bollards, throughout the course of this trial. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC By: Attorney for Plaintiff Antonio M. Romanucci, Esq. David J. Vander Ploeg, Esq. ROMANUCCI & BLANDIN, LLC 33 North La Salle Street Suite 2000 Chicago, Illinois / Atty. No.: Sample MIL 084 CBA86

88 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS LAW DIVISION, COUNTY DEPARTMENT ANDRZEJ SWIDERSKI, SR., Individually and as Special Administrator of the Estate of ANDRZEJ SWIDERSKI, JR., Deceased, Plaintiff, v. No. 04 L GEORGE KARKAZIS, Individually and as Special Administrator of the Estate of STELLA KARKAZIS, Deceased, as Trustee of the Stella Karkazis Trust, No , held at Northern Trust, and as Landlord and Owner of Strip Mall at 6352 N. Milwaukee Ave., Chicago, IL, Defendant. PLAINTIFF S MOTION IN LIMINE NO. 7 ALLOW USE OF PHOTOGRAPHS DEPICTING BOLLARDS FOR PURPOSES OF IMPEACHMENT NOW COMES the Plaintiff, ANDRZEJ SWIDERSKI, SR, Individually and as Special Administrator of the Estate of ANDRZEJ SWIDERSKI, JR., Deceased by and through his attorneys, ROMANUCCI & BLANDIN, and moves this Honorable Court, in limine, to permit use of demonstrative exhibits depicting use of bollards in parking lots not including the one at issue in order to impeach the credibility of the Defense s expert witness. Plaintiff anticipates that the Defendant will object to the use of photographs taken of bollards or pillars installed in various parking lots throughout the community. Plaintiff will seek to use these photographs only for the purposes of impeaching the Defendant s expert. The use of this evidence to impeach the witnesses testimony is entirely proper under Illinois law. Any evidence otherwise admissible which is relevant and material on the issue of Sample MIL 085 CBA87

89 the credibility of a witness is competent as impeaching evidence. 37 Ill. Law and Prac. Witnesses 92 (ref. Kennedy v. Modern Woodmen of America, 243 Ill. 560 (1910. Plaintiff anticipates that Defendant s expert will testify, consistent with his deposition, where he testified as follows: Q. Subparagraph C, you state that they are not bollards and barriers are not installed as custom and practice in front of stores in strip shopping centers? THE WITNESS: Correct. Q. That s your opinion, is that correct? THE WITNESS: Correct. Q. What is the basis for that opinion? THE WITNESS: Based on my thousands of shopping centers I reviewed as part of my work and life in terms of looking at parking lot design and installations. Q. So if there exists a strip shopping center that has either pillars or bollards or barriers installed, would you be critical of that design? THE WITNESS: Well, it would be something that I have never seen. (Depo. of Gregory Wisniewski, 84:19-85:10, emphasis added. Q. You wouldn t criticize or condemn the owner of these premises if bollards were installed in front of the Subway sandwich shop to protect pedestrians on the sidewalk or patrons inside the shop, true? THE WITNESS: It is not something done. You raise all sorts of issues in doing that of preventing cars now from stopping in front and opening their you create blind spots. You create problems in snow removal. (Depo. of Gregory Wisniewski, 77:03-77:15, emphasis added. The Defense s witness also states in his deposition to state that the parking lot is just typical of all the others he has seen in the Chicagoland area. (Depo. of Gregory Wisniewski, 82:04-82:05. If Defense s expert testifies similarly to his deposition testimony, Plaintiff will seek to use photographs from the surrounding area that depict the use of bollards to protect pedestrians and sidewalks to impeach his testimony that such structures are not something [that is] done to protect sidewalks and pedestrians from vehicles and that a parking lot designed without such bollards is just typical of all the others. The photographs would also be used to Sample MIL 086 CBA88

90 attack the witness s credibility as an expert who has seen thousands of shopping strip parking lots but yet has never seen such a shopping center with bollards or pillars installed. WHEREFORE, plaintiff requests that this Court enter an Order permitting use of photographs depicting the widespread use of bollards in the community, should they be necessary for purposes of impeachment. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC By: Attorney for Plaintiff Antonio M. Romanucci, Esq. David J. Vander Ploeg, Esq. ROMANUCCI & BLANDIN, LLC 33 North La Salle Street Suite 2000 Chicago, Illinois / Atty. No.: Sample MIL 087 CBA89

91 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS LAW DIVISION, COUNTY DEPARTMENT ANDRZEJ SWIDERSKI, SR., Individually and as Special Administrator of the Estate of ANDRZEJ SWIDERSKI, JR., Deceased, Plaintiff, v. No. 04 L GEORGE KARKAZIS, Individually and as Special Administrator of the Estate of STELLA KARKAZIS, Deceased, as Trustee of the Stella Karkazis Trust, No , held at Northern Trust, and as Landlord and Owner of Strip Mall at 6352 N. Milwaukee Ave., Chicago, IL, Defendant. PLAINTIFF S MOTION IN LIMINE NO. 8 BAR REFERENCE TO ALLEGED CAR MALFUNCTION NOW COMES the Plaintiff, ANDRZEJ SWIDERSKI, SR, Individually and as Special Administrator of the Estate of ANDRZEJ SWIDERSKI, JR., Deceased by and through his attorneys, ROMANUCCI & BLANDIN, LLC, and moves this Honorable Court to bar any testimony regarding any reference to an alleged malfunction of the Chrysler Sebring being driven by Hyman Mann. Throughout the pendency of this case, in multiple depositions, various Defense counsel have asked multiple witnesses whether there is any evidence of car malfunction being a cause of the occurrence in question. Each of these witnesses has testified that they do not have any evidence to support that conclusion. That includes each of the investigating officers in this matter. Sample MIL 088 CBA90

92 To the contrary, all evidence introduced in this case shows that Hyman Mann mistook his brake for his accelerator. Officer Marchfield testified that Hyman Mann told him that he put his foot on the accelerator instead of the brake. (Depo. Marchfield 23:3-7. Officer Paraino testified that Mr. Mann told him that he had mistakenly stepped on the accelerator rather than the brake. (Depo. Paraino 12:1-2. Therefore, allowing evidence to come in that the car may have malfunctioned will be more prejudicial than probative, and will confuse the jury as to the issues in this matter. WHEREFORE, Plaintiff moves this Honorable Court, in limine, based on the foregoing to bar reference to or introduction of the foregoing by Defendants, their counsel or witnesses, at anytime during the trial of this action in the presence of the venire, a panel or the jury. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC By: Attorney for Plaintiff Antonio M. Romanucci, Esq. David J. Vander Ploeg, Esq. ROMANUCCI & BLANDIN, LLC 33 North La Salle Street Suite 2000 Chicago, Illinois / Atty. No.: Sample MIL 089 CBA91

93 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS LAW DIVISION, COUNTY DEPARTMENT ANDRZEJ SWIDERSKI, SR., Individually and as Special Administrator of the Estate of ANDRZEJ SWIDERSKI, JR., Deceased, Plaintiff, v. No. 04 L GEORGE KARKAZIS, Individually and as Special Administrator of the Estate of STELLA KARKAZIS, Deceased, as Trustee of the Stella Karkazis Trust, No , held at Northern Trust, and as Landlord and Owner of Strip Mall at 6352 N. Milwaukee Ave., Chicago, IL, Defendant. PLAINTIFF S MOTION IN LIMINE NO. 10 TO BAR EVIDENCE, REFERENCE, ARGUMENT, INFERENCE, OR QUESTIONING REGARDING PLAINTIFF S DIVORCE NOW COMES the Plaintiff, ANDRZEJ SWIDERSKI, SR., by and through his attorneys, ROMANUCCI & BLANDIN, and moves this Honorable Court for an order in limine barring the defendants from introducing any evidence, reference, argument, inference, or questioning regarding plaintiff s divorce from Barbara Swiderski. At the time of the filing of this action, Andrzej Swiderski, Sr., was married to Barbara Swiderski. Subsequently, Andrzej Swiderski, Sr., and Barbara Swiderski have divorced. Both remain the real parties at interest in this lawsuit, as reflected in the jury instructions, and both agree that Andrzej Swiderski, Sr. is competent to serve as Special Administrator. The divorce has no impact on the amount each individual has suffered as a result of the loss of their son. Sample MIL 090 CBA92

94 Therefore, the divorce between Andrzej Swiderski, Sr., and Barbara Swiderski is completely irrelevant, and highly prejudicial. Therefore, any testimony as to their divorce is inadmissible. WHEREFORE, Plaintiff moves this Honorable Court, in limine, to bar reference to or introduction of the foregoing by Defendants, their counsel or witnesses, at anytime during the trial of this action in the presence of the venire, a panel or the jury. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC By: Attorney for Plaintiff Antonio M. Romanucci, Esq. David J. Vander Ploeg, Esq. ROMANUCCI & BLANDIN, LLC 33 North La Salle Street Suite 2000 Chicago, Illinois / Atty. No.: Sample MIL 091 CBA93

95 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS LAW DIVISION, COUNTY DEPARTMENT ANDRZEJ SWIDERSKI, SR., Individually and as Special Administrator of the Estate of ANDRZEJ SWIDERSKI, JR., Deceased, Plaintiff, v. No. 04 L GEORGE KARKAZIS, Individually and as Special Administrator of the Estate of STELLA KARKAZIS, Deceased, as Trustee of the Stella Karkazis Trust, No , held at Northern Trust, and as Landlord and Owner of Strip Mall at 6352 N. Milwaukee Ave., Chicago, IL, Defendant. PLAINTIFF S MOTION IN LIMINE NO. 11 BAR OFFICER TESTIMONY RE: LACK OF CODE VIOLATIONS NOW COMES the Plaintiff, ANDRZEJ SWIDERSKI, SR, Individually and as Special Administrator of the Estate of ANDRZEJ SWIDERSKI, JR., Deceased by and through his attorneys, ROMANUCCI & BLANDIN, LLC, and moves this Honorable Court to bar any testimony related any responding officer not citing Karkazis for any code violations. Throughout the pendency of this matter, Defense counsel has asked each responding officer whether they gave any citations to the Karkazis family for any code violations. Such questioning is improper for multiple reasons. First, the Chicago Police Department is not the government body responsible for enforcing any code violations. Any violations of code are enforced during any inspections that were conducted by the City of Chicago Department of Inspectional Services. Sample MIL 092 CBA94

96 Second, when Chicago Police Officers respond to the scene of a major incident with multiple injuries, they would not be focusing their investigation on whether there were any violations of the code. A code violation is not readily apparent to the untrained, naked eye, especially when you are responding to an accident scene that is described by a veteran officer as chaos. Further, no investigating officer ever did an accident reconstruction or the type of full investigation necessary to uncover code violations. Third, even if the Chicago Police Department noted a violation at the time of the occurrence and had the authority to enforce the code, they would not which entity to cite without doing an investigation as to which entity was responsible for which portion of the parking lot and restaurant. Officers responding to an accident scene are not going to have access to the leases, corporation papers, and translators on hand to discover who to cite for a code violation. Fourth, both parties are in agreement that there was no code violation, and that the BOCA Code does not apply. Fifth, Defendants did not disclose any of these responding officers as experts in their 213(f(3 disclosures, nor did they disclose any of the City of Chicago Department of Inspectional Services employees with knowledge of the subject property. Furthermore, Defendant s expert does not rely on the lack of any code violation citations by responding officers in coming to his opinions. He looked through the applicable codes and all the materials related to this location to come to his opinions. Therefore, this type of evidence is irrelevant, cumulative, and runs a high risk of prejudicing a jury, and, because they do not rely on the evidence, the Defendant will suffer no prejudice if this evidence is excluded. Sample MIL 093 CBA95

97 WHEREFORE, Plaintiff moves this Honorable Court, in limine, to bar reference to or introduction of the foregoing by Defendants, their counsel or witnesses, at anytime during the trial of this action in the presence of the venire, a panel or the jury. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC Antonio M. Romanucci, Esq. David J. Vander Ploeg, Esq. ROMANUCCI & BLANDIN, LLC 33 North La Salle Street, Suite 2000 Chicago, Illinois / Atty. No.: By: Attorney for Plaintiff Sample MIL 094 CBA96

98 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION DANIEL CORRADO and MARY ELLEN CORRADO, Plaintiffs, No. 10 L 8487 v. BRIAN HAEFLINGER, Defendant. PLAINTIFF S MOTION IN LIMINE NO. 1 TO BAR MENTION OF HOW FAST BRIAN HAEFLINGER WAS DRIVING AT TIME OF IMPACT NOW COME the Plaintiffs, DANIEL CORRADO and MARY ELLEN CORRADO, by and through his attorneys, ROMANUCCI & BLANDIN, LLC, and moves this Court to bar any mention including testimony, questioning, statement, remark argument and/or any other reference to how fast DANIEL CORRADO was driving the vehicle, prior to the accident. In support thereof, Plaintiff states as follows: 1. On October 16, 2008, Mr. Corrado was driving a rented Lexus ES350 westbound on interstate I-90/I-94. (See Illinois Traffic Crash Report, attached hereto as Exhibit A. At approximately 3:44 p.m., the car operated by Mr. Corrado, which was stopped due to heavy traffic, was struck from behind by the Nissan Altima driven by the Defendant, Brian Haeflinger. 2. Liability is indisputable in this case. According to the police report, the Defendant was given citations for driving too fast for conditions and for failure to reduce speed. (See Illinois Traffic Crash Report, Exh. A. Defendant pled guilty to both charges and Sample MIL 095 CBA97

99 paid the fines by mail. During his deposition, the Defendant did not dispute the accuracy of the police report or that he caused the collision that occurred. 3. During deposition, Defendant was not able to say how fast he was going at the moment of impact and such testimony was not otherwise disclosed (See Haeflinger Deposition, attached hereto as Exhibit 1; See also Defendant s 213 answers to interrogatories, attached hereto as Exhibit 2. Therefore, defense should be barred from saying how fast Defendant, Brian Haeflinger, was driving at the time of impact. WHEREFORE, Plaintiffs, DANIEL CORRADO and MARY ELLEN CORRADO, by and through his attorneys, ROMANUCCI & BLANDIN, LLC, respectfully request this Honorable Court to enter an order barring any evidence, testimony, questioning, statement, remark, argument, and/or any other reference to how fast Defendant, Brian Haeflinger, was driving the vehicle, at the time of impact, and for any further relief this Court deems appropriate and just. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC Michael E. Holden Stephan D. Blandin ROMANUCCI & BLANDIN, LLC 33 North La Salle Street; Suite 2000 Chicago, Illinois Tel: ( Fax: ( By: Attorney for Plaintiff Sample MIL 096 CBA98

100 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION DANIEL CORRADO and MARY ELLEN CORRADO, Plaintiffs, No. 10 L 8487 v. BRIAN HAEFLINGER, Defendant. PLAINTIFF S MOTION TO RECONSIDER BARRING DEFENSE FROM SHOWING PICTURES OF DAMAGED VEHICLES NOW COMES the Plaintiffs, DANIEL CORRADO and MARY ELLEN CORRADO, by and through his attorneys, ROMANUCCI & BLANDIN, LLC, and moves this Court to reconsider barring defense from showing pictures of the damaged vehicles to contest the reasonableness of Defendant s actions. In support thereof, Plaintiff states as follows: 1. Since, the court granted Plaintiff s motion to exclude photographs of the vehicles for the purpose of showing the nature and extent of Plaintiff injuries, we ask the court to reconsider barring the photographs completely because the Defendant made judicial admissions of negligence in his deposition taken on April 6, Therefore, he should not be able to make a contradictory argument saying that he is not negligent. 2. A judicial admission is a deliberate, clear, unequivocal statement of a party about a concrete fact within that party's peculiar knowledge. See McCormack v. Haan, 20 Ill.2d 75 (1960; Baker-Wendel, Inc. v. Cohon & Associates, Ltd., 100 Ill. App.3d 924,929 (1981. Additionally, a party cannot create a factual dispute by contradicting a previously made judicial admission. See Smith v. Ashley, 29 Ill.App.3d 932, 935 Sample MIL 097 CBA99

101 (1975; Fountaine v. Hadlock, 132 Ill.App.3d 343 (1971. [A] party may not create a genuine issue of material fact by taking contradictory positions, nor may he remove a factual question from consideration just to raise it anew when convenient. See Schmahl v. A.V.C. Enterprises, Inc., 148 Ill.App.3d 324, 331 (1986. The frequently stated purpose of the doctrine of judicial admissions is to eliminate the temptation to commit perjury. Id. at The assertions made by Haeflinger in his deposition, as shown below, constitute binding judicial admissions because they clearly admit negligence. He admits he rearended Plaintiff. He admits he pled guilty to driving too fast for conditions. He admits he pled guilty to failing to reduce speed. He admits he was at fault for the accident. See Haeflinger Deposition, p. 20, L.18-20; p. 24, L ; p. 25, L. 8-24; p. 26, L.1-2; p. 27, L. 6-7, L Q: The front end of your car struck the rear end of another vehicle, true? A: Yes. Q: So you admitted you pled guilty, meaning that you admitted what the tickets were made out to for; is that true? A: Yes. Q: The police report indicates you received a ticket for driving too fast for conditions. Do you agree with that? A: Yes. Q: It also indicates you received a ticket for failure to reduce speed. Do you agree with that? A: Yes. Sample MIL 098 CBA100

102 Q: So, in other words, if the police report indicates you were driving too fast for conditions and you failed to reduce speed, those are the tickets that you pled guilty to; is that true? A: Yes. Q: And you just did not slow in time? A: Correct Q: You did not react in time for the brake lights in front of you? A: Yes. Q: And that s what caused the impact between your vehicle and the vehicle in front of you, true? A: Yes. WHEREFORE, Plaintiffs, DANIEL CORRADO and MARY ELLEN CORRADO, by and through his attorneys, ROMANUCCI & BLANDIN, LLC, respectfully request this Honorable Court to enter an order barring defense from showing pictures of the damaged vehicles to contest the reasonableness of Defendant s actions, and for any further relief this Court deems appropriate and just. Respectfully Submitted, ROMANUCCI & BLANDIN, LLC Michael E. Holden Stephan D. Blandin ROMANUCCI & BLANDIN, LLC 33 North La Salle Street; Suite 2000 Chicago, Illinois Tel: ( Fax: ( By: Attorney for Plaintiff Sample MIL 099 CBA101

103 Sample MIL 100 CBA102

104 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION ATHENA CHRISTUS, Plaintiff, vs. No.: 09 L 6126 ABIDA KASSIM, Defendant. PLAINTIFF S MOTION IN LIMINE NO. 1 TO BAR TESTIMONY OF DEFENDANT S 213(F(3 EXPERT, ERNEST CHIODO NOW COMES the Plaintiff, ATHENA CHRISTUS, by and through her attorneys, ROMANUCCI & BLANDIN, and moves this Honorable Court to bar Defendant s 213(f(3 witness, Ernest Chiodo for the following reasons: (1 Illinois courts do not generally recognize biomechanical engineer testimony with regard to motor vehicle accident; (2 Chiodo s opinions regarding speed and force lack adequate foundation and are not actually specific to Ms. Christus or this occurrence; (3 Dr. Chiodo s opinions do not meet the requirement of Rule 702 that it assist the trier of fact. In support thereof, Plaintiff states as follows: 1. This case involves a two car rear-end motor vehicle collision. The Defendant, Abida Kassim, rear-ended the Plaintiff, Athena Christus, when Ms. Christus stopped for a yellow arrow in the left-turn lane at the intersection of Skokie Blvd. and Golf Rd. in Skokie, Illinois. As a result of the collision, Plaintiff has claimed injuries to her back. Plaintiff s medical providers have diagnosed her as suffering from facet syndrome, and will testify that the injuries were caused by the May 24, 2007 motor vehicle collision. 2. Defendant has hired a biomechanical engineer (who is also a practicing internal medicine physician, who reviewed Plaintiff s post-occurrence medical records, Plaintiff s Sample MIL 101 CBA103

105 deposition, and photos of Ms. Christus motor vehicle. Defendant s expert prepared a report in this matter (attached hereto as Exhibit A, which offered four basic opinions: (1 that, based on review of the photographs, the speed of the collision was less than 2.5 miles per hour; (2 that, based on a speed of 2.5 miles per hour, the forces involved in the collision were less than 1.14 Gs; (3 based on one 1994 article, such forces are less than are generally experienced in dailyactivities, such as plopping down in a chair; and (4 that because Plaintiff would have plopped down in her car before the accident, she would have experienced forces greater than experienced in the accident, as such her injuries were not caused by the accident. 3. Defendant s opinions fail to satisfy the requirements for expert testimony in Illinois, and, as such should be barred. Specifically, 1 Illinois courts do not generally recognize biomechanical engineer testimony with regard to motor vehicle accident; (2 Chiodo s opinions regarding speed and force lack adequate foundation and are not actually specific to Ms. Christus or this occurrence; (3 Dr. Chiodo s opinions do not meet the requirement of Rule 702 that it assist the trier of fact. Argument A. Illinois courts do not recognize biomechanical engineer testimony with regard to motor vehicle accidents. 4. The admissibility of biomedical engineer testimony is tested under the evidentiary standards applied to scientific testimony in general. Biomedical engineering has been described as the application of engineering principles to explain how things how things interact with the human body. Biomedical engineering testimony as to the cause of a victim s injuries has been held admissible where the injuries occurred during a medical procedure or a sports event. It has been held inadmissible where the victim s injuries followed a traffic or household accident. Dale Joseph Gilsinger, J.D., Annotation, Admissibility of Biomedical Engineer Testimony, 43 A.L.R. 6 Sample MIL 102 CBA104

106 327 (2011 (a copy of said article is attached as Exhibit B. 5. Biomedical engineering testimony has not been recognized in Illinois involving motor vehicle accident. Martin v. Sally (341 Ill.App.3d 308, 792 N.E.2d 516 (2d. Dist held biomedical engineer testimony was not allowed. In Martin, it was undisputed that the defendant rear-ended the plaintiff s vehicle. Defendant called an expert witness, an accident reconstructionist and biomechanist, to testify as to the results of studies done in the field of biomedical engineering, which attempted to determine what injuries would result to humans in low-speed impacts. Defendant s expert witness testified that the studies and tests he utilized were all subjected to a peer-review process, that he used methodology or techniques firmly established in the field of biomechanical engineering, and that they were scientifically performed. Id. The trial court denied the plaintiff s motion in limine to bar, and allowed the defendant s expert to testify. The jury returned a verdict for the defendant. The appellate court reversed and remanded finding that the defendant s expert was improperly allowed to testify because he rendered an opinion as to individuals in general, which had no relevant to the plaintiff. 6. The Martin court also held the fact that other individuals had not suffered injuries in low-impact vehicular crashes had no bearing on whether the plaintiff in particular suffered injury in the particular crash. There was no indication that the defendant s expert laid an adequate foundation establishing that the information upon which the expert based his opinion was reliable. Additionally, there was no indication in the record that the defendant s expert considered the plaintiff s height, weight, and age, whether the plaintiff wore her seat belt, how she was seated, or whether she had pre-existing conditions at the time of the crash. Id. 7. Similarly, in Whitting v. Coultrip (324 Ill.App.3d 161, 755 N.E.2d 494 (3d. Dist. Sample MIL 103 CBA105

107 2001 the plaintiff brought suit against the defendant for back injuries she sustained in a 2 car accident. The trial court allowed the defense to introduce testimony of a biomechanical engineer that the amount of force experienced by plaintiff due to the collision was not sufficient to cause her injuries. The appellate court held that the trial court erred in allowing such testimony as the defendant failed to prove that the methods of study employed by the biomedical engineer were both generally accepted and reliable. Id. The appellate court held that the biomedical engineer s testimony was novel scientific evidence and did not involve a firmly established technique. Id. Further, the Whitting court found no Illinois cases wherein a biomedical engineer was even certified as an expert, let alone permitted to testify that a plaintiff s injuries were not consistent with the type of accident sustained. Id. 8. Here, Defendant s expert suffers the same inadequacies as the experts in Martin and Whitting. Defendant s expert s opinion, while couched in terms applying this matter to Ms. Christus, is really a general opinion that people involved in this type of accident cannot be injured because they experience greater forces in everyday life. Defendant s expert does not take into account the plaintiff s height, weight, age, vehicle type, pre-existing medical conditions, position at the time of the accident, whether she was wearing a seat belt, or the type of vehicle the defendant was driving. Defendant s expert simply opines that the forces are too low. Further, Defendant s expert does not perform any sort of analysis other than looking at photos damage on the bumper of one car involved. He performed no reconstruction, no testing, and no computer models, did not personally view the scene of the occurrence, did not personally view the damage to either vehicle, and did not do any scientific analysis. He merely looked at the photos and stated that based on his experience, the damage is consistent with a crash at less than 2.5 miles per hour. Defendant s expert then uses this 2.5 mph number as the basis for the Sample MIL 104 CBA106

108 remainder of his opinions. As such, there is no way to challenge the expert s opinion, rather, the Plaintiff is more-or-less forced to take the defense expert s word on the matter. Because of this, his opinions should be barred. B. Chiodo s opinions regarding speed and force lack adequate foundation and are not actually specific to Ms. Christus or this occurrence, and should be barred. 9. Second, Chiodo s opinions fail to satisfy the foundation requirements for admissible evidence because they are based on assumptions, estimations, approximations and guesses. In Illinois, the admission of an expert s opinion testimony requires the proponent to lay an adequate foundation establishing that the information upon which the expert bases his opinion is reliable. Martin v. Sally, 341 Ill.App.3d 308, (2 nd Dist An expert witness may not testify an opinion as to individuals in general without any relevance to the plaintiff. Id. 10. All of Chiodo s opinions rely on generalities, assumptions, and guesses. For instance, Chiodo opines that since the Plaintiff would have experienced more force getting into the car, it is not probable that she was injured in the accident (Report, p. 5. In support of this opinion, Chiodo relies on one article published in 1994 which discussed the forces experienced during every-day activities. However, Chiodo concedes that there are no studies which suggest just how much force a human must experience to sustain and injury. Specifically, when asked at his evidence deposition as to whether there is any literature on the issue, he testified I don t believe that such a guideline exits that would be generally accepted and authoritative. As such, despite being of the opinion that there is no generally accepted literature as to the threshold a human must experience to be injured, he can say that an injury did not occur in this accident. 11. Essentially, Chiodo s opinion is based on semantic tricks, logical sleight of hand, and the misuse of scientific literature and principles. When boiled down to its basic premise, Sample MIL 105 CBA107

109 Chiodo s opinion is that the forces of the collision are of less magnitude as the accelerations of every-day noninjurious activities such as sneezing or plopping in a chair, and, as such, could not have been caused by the occurrence. 12. The reasoning offered by Chiodo, that if a one event (a crash has lower forces than an innocuous activity like sneezing then it logically follows that the crash has less injury potential as the innocuous activity. The basis for Chiodo s claim is a paper by Allen, et al published in The claim is a semantic and logical trick; the fact that a rear impact collision may produce less force than a sneeze does not mean that the collision and sneeze are comparable in any other respect, including injury potential, and Chiodo offers no testimony as to how exactly these events are comparable. Such comparisons are designed solely to mislead. Motor vehicle crashes produce 2.9 million non-catastrophic spine injuries annually in the United States, and result in 500,000 to 900,000 cases of permanent pain. It is illogical to nullify the 40-60% of these injuries that occur in the presence of minimal vehicle damage with a study of people sneezing and plopping in chairs. 13. Further, the entire basis for Chiodo s causation opinion in this matter is his speed estimation of less than 2.5 mph. Here, again, Chiodo concedes that he performed no investigation or study other than looking at photographs of the damage to Plaintiff s vehicle. Chiodo did not perform an accident reconstruction, did not visit the location of the occurrence, did not create any computer models, did not personally view either vehicle in the collision, and did not recreate the accident in any way to confirm his speed estimation in this case. As such, it is no more valid than the court looking at the photos and saying the accident must have been about 2.5 mph. With such reliability, the opinion must be barred. Because it is the basis for the remainder of his opinions, those opinions too must be barred. Sample MIL 106 CBA108

110 14. As stated above, in Martin v. Sally, the Second District Court held that the trial court erred by allowing the defendant s retained accident reconstructist to testify that the motor vehicle collision did not cause injury to plaintiff. 341 Ill.App. 3d at The Court held that the expert s opinions lacked adequate foundations because the expert did not base his opinions on the specific facts of the occurrence but rather on generalities. Id. The Appellate Court admonished the trial court for permitting the expert s testimony, stating: The fact that other individuals in general might not suffer injuries in low-impact vehicular crashes has no bearing on whether [a] particular plaintiff might have suffered injury in this particular crash. Id. 15. Again, here, Chiodo s opinions, while couched in terms applying to Ms. Christus, do not actually have any direct application to this occurrence or to Ms. Christus. Chiodo did not account for the plaintiff s height, weight, age, gender, how she was seated in the vehicle, whether she had any pre-existing conditions, whether she was wearing a seat-belt, and did not account for any particularities (e.g. type of vehicles, weight of vehicles, duration of impact, etc. of this particular collision other than his estimation of speed. 16. The Defendant cannot be permitted to confuse a jury by attempting to present evidence that does not apply specifically to Mr. Christus but, rather, to accidents in general. Furthermore, this expert should not be permitted to substitute into the trial as an additional eyewitness by contriving the facts of the eyewitnesses with no scientific basis. It does not take a special expertise to read depositions and come up with a random formula to support one version of the facts; however, it does usurp the jury s decision-making province as it robs them of the ability to review the testimony of both parties and come to a determination based on credibility and the factual evidence before them. C. Chiodo s Opinions do not Assist the Trier of Fact, as Required by Rule 702, and Should be Barred. Sample MIL 107 CBA109

111 14. Rule 702 provides that expert testimony is admissible if scientific, technical, or other specialized knowledge will assist the trier of fact to determine a fact in issue. Here, Defendant s expert s opinions do no such thing. 15. Here, when you remove the semantics and false logic Chiodo testifies to, his expert opinion boils down to offers an opinion that it is unlikely for someone to get hurt in a low speed accident. Simply because an event is unlikely does not mean it is impossible. It is unlikely that I will win the lottery in my lifetime. However, assuming I purchase lottery tickets, it is not impossible. The only opinion even based on this accident is his speed estimation which merely goes to confirm that this was a low-speed impact. Plaintiff is perfectly willing to acknowledge that this impact was a low-speed impact. All parties testify as to approximate speeds, which are all low. No one is disputing this issue. Further, the jury will hear from a medical doctor who will opine that the injury was caused by the occurrence. Should the jury find that opinion not credible based on the testimony of how the accident occurred, and the description of the impact by the parties, they are able to reach their own conclusion as to causation. As such, Defendant s expert opinion should be barred as it does not assist the trier of fact. WHEREFORE, Plaintiff, ATHENA CHRISTUS, by and through her attorneys, ROMANUCCI & BLANDIN, respectfully requests this Honorable Court enter an order barring any mention including testimony, questioning, statement, remark argument and/or any other reference that the Plaintiff was contributorily negligent in this matter, and ruling, in limine, that the jury instructions in this matter be tendered with no reference or evaluation of contribution or allocation of fault in this matter. Respectfully submitted, Sample MIL 108 CBA110

112 ROMANUCCI & BLANDIN, LLC Michael E. Holden ROMANUCCI & BLANDIN, LLC 321 N. Clark St.; Ste. 900 Chicago, Illinois Tel: ( Fax: ( Atty. No By: Attorney for Plaintiff Sample MIL 109 CBA111

113 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION ATHENA CHRISTUS, Plaintiff, vs. No.: 09 L 6126 ABIDA KASSIM, Defendant. PLAINTIFF S MOTION IN LIMINE NO. 2 BARRING DEFENSE FROM SHOWING PICTURES OF DAMAGED VEHICLES NOW COMES the Plaintiff, ATHENA CHRISTUS, by and through her attorneys, ROMANUCCI & BLANDIN, and (pending this Court s ruling on Plaintiff s Motion in Limine No. 1 moves this Honorable Court to bar defense from showing pictures of the damaged vehicles to imply the low damage on the car correlates to the injuries sustained by Athena Christus. In support thereof, Plaintiff states as follows: 1. Should this Court grant Plaintiff s Motion in Limine No. 1, and bar Defendant s expert from testifying in this matter, Plaintiff would further move this Honorable Court to bar the defense from showing pictures of the damaged vehicles to imply the low damage on the car correlates to the injuries sustained by Athena Christus (should this court deny Plaintiff s Motion in Limine No. 1, Plaintiff concedes that the photos would be admissible in this matter. 2. As a direct and proximate cause of the May 24, 2007 collision, Plaintiff has alleged that she sutained injuries to her back. Further, her physician, Dr. Frank, will testify that those injuries were caused by the motor vehicle accident. Plaintiff anticipates that, if the defense expert in this matter is barred, that the defendant would attempt to offer photos of the damage sustained by Ms. Christus car. However, the admission of such photos should be barred under Sample MIL 110 CBA112

114 Rule 403, and risks that the jury would draw improper inferences as to whether the damage is consistent with injuries sustained by the Plaintiff. 3. It is within the discretion of the trial court to decide whether evidence is relevant and admissible. Ferro v. Griffiths, 361 Ill.App.3d 738, 742, 297 Ill.Dec. 194, 836 N.E.2d 925 (2005. Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. DiCosola v. Bowman, 342 Ill.App.3d 530, 535, 276 Ill.Dec. 625, 794 N.E.2d 875 (2003 (quoting Wojcik v. City of Chicago, 299 Ill.App.3d 964, 971, 234 Ill.Dec. 137, 702 N.E.2d 303 (1998. The critical question in admitting photographs into evidence is whether the jury can properly relate the vehicular damage depicted in the pictures to the injury without the aid of an expert. Ferro, 361 Ill.App.3d at 743, 297 Ill.Dec. 194, 836 N.E.2d 925. This is an evidentiary question that the trial judge must resolve. Ferro, 361 Ill.App.3d at 743, 297 Ill.Dec. 194, 836 N.E.2d In DiCosola, the plaintiff was stopped in a Dominick s parking lot aisle waiting for someone to back out of a spot, when the defendant, who was not looking at the plaintiff s vehicle, drove her vehicle through a parking space and collided with plaintiff s car. DiCosola, 342 Ill.App.3d at 532 (2003. The trial court granted plaintiff s motion in limine to exclude photographs of the vehicle damage because they were irrelevant. Id. at In DiCosola, the Illinois Appellate Court affirmed the trial court s decision to grant plaintiff's motion in limine to exclude the photographs of the vehicles because they were irrelevant to any issues in the case. DiCosola v. Bowman, 342 Ill.App.3d 530, 535, 276 Ill.Dec. 625, 794 N.E.2d 875 (2003. The Appellate Court reasoned that no Illinois case stands for the proposition that photographs showing minimal damage to a vehicle are automatically relevant and must be admitted to show Sample MIL 111 CBA113

115 the nature and extent of a plaintiff's injuries. There simply is no such bright-line rule that photographs depicting minimal damage to a post-collision vehicle are automatically admissible to prove the extent of a plaintiff's bodily injury or lack thereof. DiCosola, 342 Ill.App.3d at 535, 276 Ill.Dec. 625, 794 N.E.2d 875; See also Baraniak v. Kurby, 371 Ill. App. 3d 310, 318 (1st Dist (Appellate Court affirms trial court s decision to bar accident photos from being used to show extent of injuries. Similarly, in the case at issue, the photographs of the vehicles are also irrelevant to any issues in the case, other than to mislead and confuse the jury. Thus, the prejudicial effect far outweighs the probative value of these photographs. 5. Furthermore, the Illinois Appellate Court in DiCosola cited to the case of Davis v. Maute, 770 A.2d 36 (Del. 2001, in which, the Delaware Supreme Court held that a party in a vehicular personal injury case generally may not argue that there is a correlation between the extent of vehicular damage and the extent of a person s injuries caused by the accident in the absence of expert testimony on that issue and may not rely on photographs of the vehicle(s involved to indirectly accomplish the same purpose because absent such expert testimony, any inference by the jury that minimal damage to the plaintiff s car translates into minimal personal injuries to the plaintiff would necessarily amount to unguided speculation. DiCosola at citing to Davis, 770 A.2d at 40. Similarly, defense is indirectly trying to accomplish a correlation between the extent of the vehicular damage and Athena Christus injuries, and would be allowing the jury to speculate without any guidance and is only serving to prejudice the jury against the Plaintiff. 6. Moreover, the parties have agreed to stipulate to points of contact, so there is no need to show photographs of the vehicles, other than to prejudice the jury. Thus, the prejudicial effect of the photographs outweighs the probative value of them. Sample MIL 112 CBA114

116 7. Furthermore, in the case of Maple v. Gustafson, the jury considered expert medical testimony presented by the defendant to show that the plaintiff sustained no injury. Maple, 151 Ill.2d 445, 177 Ill. Dec. 438, 603 N.E.2d 508 (1992. Expert testimony is required to show a proper correlation between the extent of the vehicular damage and the nature and extent of plaintiff's injury. Without expert testimony from an expert who can speak to the correlation between vehicular damage and injuries, defense must be barred from making the argument that the low damage to the car correlates to the extent of Ms. Christus injuries. WHEREFORE, Plaintiff, ATHENA CHRISTUS, by and through her attorneys, ROMANUCCI & BLANDIN, respectfully requests this Honorable Court enter an order barring defense from showing pictures of the damaged vehicles to imply the low damage on the car correlates to the injuries sustained by Athena Christus. Respectfully submitted, ROMANUCCI & BLANDIN, LLC Michael E. Holden ROMANUCCI & BLANDIN, LLC 321 N. Clark St.; Ste. 900 Chicago, Illinois Tel: ( Fax: ( mholden@rblaw.net Atty. No By: Attorney for Plaintiff Sample MIL 113 CBA115

117 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION ATHENA CHRISTUS, Plaintiff, vs. No.: 09 L 6126 ABIDA KASSIM, Defendant. PLAINTIFF S MOTION IN LIMINE NO. 3 TO BAR ANY EVIDENCE OF A SUDDEN STOP BY PLAINTIFF NOW COMES the Plaintiff, ATHENA CHRISTUS, by and through her attorneys, ROMANUCCI & BLANDIN, and moves this Honorable Court to bar any mention including testimony, questioning, statement, remark argument and/or any other reference that, immediately prior to the accident Plaintiff made a sudden stop, stopped quickly, or any testimony suggested that Plaintiff stopped in a manner that prevented the defendant from avoiding the collision. In support thereof, Plaintiff states as follows: 1. Liability is indisputable in this case. According to the testimony of both Plaintiff and Defendant, Defendant rear-ended Plaintiff s vehicle when it stopped at a yellow turn arrow at the intersection of Skokie Blvd. and Golf Rd. in Skokie, Illinois. 2. At deposition, the defendant testified as follows: Q: At some point did the car in front of you begin to move? A: Yes. Q.: And then tell me what happened. A: Okay. When that light turns green, everybody was moving to the to turn to the left. And the light turns yellow. She was about to leave. She was about to turn, but she could have turned left and I could have turned left. There was plenty of time when the light was yellow. And she didn t turn left, and she Sample MIL 114 CBA116

118 (Depo. Kassim, p. 26:4-26:18. stopped. And while she braked her car, I have to brake too, and it was a minor bump to her car. *** Q: After the green turn signal went on and you went forward, you said it turned yellow again and then the gold car stopped, right? A: (nodding head Q: Yes? A: Yes. Q: So when the gold car stopped at that point it was the first car, right? A: Yes. Q: Okay. And at that point, was the gold ar still in the left turn lane? A: Yes. Q: It wasn t in the intersection or anything, right? A: That, I don t remember. It was not the intersection. Q: You were still in the left turn A: Yes. Q: -- lane, right? Just so I understand you correctly, when you saw the light was yellow, you thought there was enough there was enough time to go, right? A: Yes. Q: So you were expecting to go through the intersection, yes? A: Yes. Q: And then at some point you realized that the gold car was stopping and so you tried to stop too, right? A: Yes. (Depo. Kassim, p. 30:10-31: At no point in time did Ms. Kassim testify, imply, or otherwise suggest that there was anything about the manner in which the plaintiff stopped her car that was sudden. At most, her testimony suggests that she was not paying attention to Ms. Christus car until she began to stop, which is why she was unable to stop before making contact with the plaintiff s car. 4. Further, Defendant s 213 disclosures say nothing to suggest that the Defendant is Sample MIL 115 CBA117

119 going to offer testimony that Plaintiff s stop was sudden. Defendant s disclosure states: Ms. Kassim is expected to testify concerning her actions and observations before, at the time of, and after the occurrence, her background and experience, and other matters, opinions, and facts addressed in her deposition. 5. To now allow the Defendant, or any other defense witness, to offer testimony that that stop was sudden is not consistent with the evidence gathered in the discovery of this matter, and would be prejudicial to Plaintiff in presenting this matter to the jury. WHEREFORE, Plaintiff, ATHENA CHRISTUS, by and through her attorneys, ROMANUCCI & BLANDIN, respectfully requests this Honorable Court enter an order barring any mention including testimony, questioning, statement, remark argument and/or any other reference that, immediately prior to the accident Plaintiff made a sudden stop, stopped quickly, or any testimony suggested that Plaintiff stopped in a manner that prevented the defendant from avoiding the collision Respectfully submitted, ROMANUCCI & BLANDIN, LLC Michael E. Holden ROMANUCCI & BLANDIN, LLC 321 N. Clark St.; Ste. 900 Chicago, Illinois Tel: ( Fax: ( mholden@rblaw.net Atty. No By: Attorney for Plaintiff Sample MIL 116 CBA118

120 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION ATHENA CHRISTUS, Plaintiff, vs. No.: 09 L 6126 ABIDA KASSIM, Defendant. PLAINTIFF S MOTION IN LIMINE NO. 4 TO BAR DEFENDANT FROM MAKING A CLAIM FOR CONTRIBUTORY NEGLIGENCE NOW COMES the Plaintiff, ATHENA CHRISTUS, by and through her attorneys, ROMANUCCI & BLANDIN, and moves this Honorable Court to bar any mention including testimony, questioning, statement, remark argument and/or any other reference that the Plaintiff was contributorily negligent in this matter. In support thereof, Plaintiff states as follows: 1. Plaintiff in this matter anticipates that Defendant may attempt or interject that an Plaintiff is somehow contributorily negligent in causing her injuries. However, a defense of "contributory negligence" is an affirmative defense and must be pleaded and proved by Defendant. See, Grote v. Estate of Franklin, 214 Ill. App. 3d 261, 573 N.E.2d 360 (2nd Dist. 1991; Burns v. Grezekn, 155 Ill. App. 3d 294, 508 N.E.2d 449 (2 nd Dist. 1987; Hoggart v. Melin, 29 Ill.App.2d 23, 172 N.E.2d 389 (3rd Dist An affirmative defense not timely pleaded cannot be considered, even if evidence suggests its existence. First National Bank of Lake Forest v. Village of Mundelien, 166 Ill.App.3d 83, 519 N.E.2d 476 ( During the time this action has been pending, Defendants have failed to Sample MIL 117 CBA119

121 file any affirmative defenses or special defenses alleging that Plaintiff was contributorily negligent. To allow the Defendant at this late stage to inject a contributory negligence defense would be untimely and severely prejudice the rights of the Plaintiff in this case. 4. Furthermore, such defense is not supported by the evidence gathered during the course of discovery in this matter. The only potentially conceiveable allegation the defendant could make that that Plaintiff was contributorily negligent in this matter is that Ms. Christus stopped suddenly. As discussed in Plaintiff s previous Motion in Limine, the defendant has not offered any testimony or evidence that the Plaintiff stopped suddenly, or somehow created a situation that made this accident unavoidable. To now allow the Defendant, or any other defense witness, to offer testimony that that stop was sudden is not consistent with the evidence gathered in the discovery of this matter, and would be prejudicial to Plaintiff in presenting this matter to the jury. 5. As such, there is no evidence, and no affirmative defense has been plead supporting a claim for contributory negligence, and any such arugment, reference, or suggestion should be barred during the course of this trial. 6. Further, Plaintiff would ask this court to proffer jury instructions in this matter which omit any reference to contributory negligence and which do not ask the jury to make any evaluation as to allocation of fault in this matter. WHEREFORE, Plaintiff, ATHENA CHRISTUS, by and through her attorneys, ROMANUCCI & BLANDIN, respectfully requests this Honorable Court enter an order barring any mention including testimony, questioning, statement, remark argument and/or any other reference that the Plaintiff was contributorily negligent in this matter, and ruling, in limine, that the jury instructions in this matter be tendered with no reference or evaluation of contribution or Sample MIL 118 CBA120

122 allocation of fault in this matter. Respectfully submitted, ROMANUCCI & BLANDIN, LLC Michael E. Holden ROMANUCCI & BLANDIN, LLC 321 N. Clark St.; Ste. 900 Chicago, Illinois Tel: ( Fax: ( Atty. No By: Attorney for Plaintiff Sample MIL 119 CBA121

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