FOURTH DIVISION
MARCH 6, 2003

1-01-2189)
1-01-2781) Cons.

JUSTICE HARTMAN delivered the opinion of the court:

A private airplane crash at Palwaukee Municipal Airport (Palwaukee) outsideChicago resulted in the deaths of all four people aboard, including Martin Larry Koppie(Koppie), senior pilot and captain for defendant, Aon Aviation, Inc. (Aon Aviation);Robert Hampton Whitener (Whitener), pilot for defendants, Alberto-Culver USA, Inc.,Alberto-Culver Company (Alberto-Culver Co.) and Alberto-Culver International, Inc.(collectively, Alberto defendants), the registered owner of the airplane; Arthur Quern,Chief Executive Officer and Chairman of the Board for Aon Risk Management, Inc.; andCatherine Mio Anderson, a flight attendant employed by Executive Jet, whose serviceswere secured by Aon Aviation. Although each party brought multiple causes of action,inter alia, for wrongful death, survival, contribution and contractual indemnity, onlythe cases involving Whitener's and Koppie's Estates and the contribution claims betweenAlberto defendants and defendants, Aon Corporation (Aon Corp.) and Aon Aviation(collectively, Aon defendants), proceeded to a jury trial. The contribution claimswere separated from the underlying wrongful death and survival claims, and were to betried consecutively to the same jury following their verdict. The jury rendered averdict in favor of Whitener's Estate and against Aon in the amount of $18,946,749;mistrials were declared as to all the remaining consolidated causes of action.

This case involved substantial technical facts and concepts, consumed 33 days fortrial, at which 37 witnesses testified and over 915 exhibits were submitted, andrequired over 17,000 pages of record. Accordingly, the discussion of facts, issues anddisposition requires extensive consideration and has been bifurcated into this opinionand a Supreme Court Rule 23 (166 Ill. 2d R. 23 (Rule 23)) disposition, each being filedsimultaneously with the other.

On January 24, 2001, the circuit court entered judgment on the jury verdictsolely against Aon Corp. On July 12, 2001, the court granted Alberto defendants'emergency motion to correct the record and entered judgment, nunc pro tunc, January 24,2001, against Aon Aviation, instead of Aon Corp.

On appeal, Aon defendants seek reversal of both the January 24, 2001 and July 12,2001 circuit court orders and remandment for a new trial, alleging error and lack ofjurisdiction; error with respect to the procedure allowing the estates' cases toproceed to verdict prior to the presentation of evidence regarding the contributionclaims; and error in certain evidentiary findings, which will be decided in thisopinion. The Rule 23 order will consider claims of error in certain other evidentiaryfindings, numerous alleged Supreme Court Rule 213 (177 Ill. 2d R. 213 (Rule 213 ))violations; error in the grant and refusal of certain jury instructions; error indenial of its motion to dismiss based upon Alberto defendants' failure to comply witha notice to produce; and error in the amount of the verdict. All technical terms andexplanations contained in the opinion or order emanate from evidentiary sourcescontained in the record on appeal.

Aon Aviation and Alberto-Culver Co. each maintained a flight department atPalwaukee and each operated their own Gulfstream IV (GIV) aircraft, a twin engine jetthat requires a two-pilot crew. On June 7, 1995, they entered into an InterchangeAgreement, which permitted each to use the other corporation's GIV upon occasion. Bothparties agreed, inter alia, to (1) "hold harmless and indemnify the other from loss,expense, damages, claims or suits which they might suffer as a result of any act oromission of the other party"; (2) maintain operational control⁽¹⁾ of their own GIV duringuse by the other party; and (3) purchase an aircraft insurance policy with a minimum$150,000,000 coverage when piloting each other's airplanes. Koppie, listed as chiefpilot for Aon Aviation, signed the agreement twice for "Operational Control" andacceptance purposes.

On October 30, 1996, pursuant to the Interchange Agreement, an Alberto-Culver Co.GIV was scheduled to fly Aon's Quern from Wheeling, Illinois to Burbank, California. Only one Alberto-Culver Co. pilot, Whitener, was available, and Aon Aviation wasadvised of the need to supply an Aon Aviation pilot to complete the flight crew. Aondefendants chose to have a mixed flight crew that included one of their pilots and anAlberto-Culver Co. pilot. Koppie volunteered to be the Aon Aviation pilot. Whitenerand Koppie had flown together in both the Alberto-Culver Co. and Aon Aviation GIVs onfour prior occasions, during which each had acted as the "pilot in command" (PIC).⁽²⁾ Both had extensive flying experience in different types of aircraft, including the GIV. Whitener logged 2000 and Koppie 500 hours of flight time in the GIV. The two pilotsalso were familiar with Palwaukee.

Prior to departure, Whitener prepared and filed a flight plan at a computerterminal in the Alberto-Culver Co. office, showing the proposed route. The plan listedKoppie as the PIC on the flight leg to Burbank and Whitener as the PIC on the returntrip.

Koppie sat in the left pilot seat and Whitener in the right pilot seat. Acockpit voice recorder (CVR) recorded the pilots' completion of a pre-flight check ofthe aircraft, which included testing of the rudder, a vertical component of the tailthat maintains side-to-side directional control.⁽³⁾

The pre-flight check also revealed the position of nosewheel steering selectswitch (NSSS), which allows the pilot to turn off rudder pedal steering to thenosewheel of the aircraft and limit steering of the nosewheel to the tiller, also knownas a handwheel.⁽⁴⁾ Gulfstream installed the NSSS on the Alberto-Culver Co. airplaneduring the summer of 1995 pursuant to Aircraft Service Change 302 (ASC 302).⁽⁵⁾ Eachpilot determines by preference whether to leave the NSSS in a "handwheel only"position, meaning no rudder pedal input could be provided to the nosewheel. RobertFash, the Alberto-Culver Co. pilot who had flown the GIV to Palwaukee the night beforethe accident, left the NSSS in the handwheel only position.

Neither Koppie nor Whitener reported any problems with the aircraft during thepre-flight check. All flight controls were working normally when the aircraft taxiedonto the runway for takeoff.⁽⁶⁾ When the flight was cleared for takeoff, strong and gustycrosswinds blew at 40 miles per hour from left to right across the departure runway.⁽⁷⁾ Nevertheless, the conditions were deemed safe for takeoff. The airplane began to rolldown the runway, but started to veer to the left side of the runway in the middle ofits takeoff roll. According to the National Transportation Safety Board (NTSB) report,the aircraft rolled onto the grass at the left side of the runway, traversing a shallowditch that paralleled the runway, which resulted in the loss of the landing gear,flight control surfaces and other airplane components. The airplane then slid on itsbelly and became airborne after it encountered a small berm at the departure end of therunway. Once airborne, the airplane flew over Hintz Road, contacted an embankmentalong Wolf Road and skipped over Wolf Road, slid across a field and stream gully andcame to rest on the edge of an apartment complex parking lot, where it was consumed byflames.⁽⁸⁾

The crash site was secured by police and then by the NTSB and FAA, and the debrisevidence was transported and stored in a hangar at Palwaukee. The rudder actuator wasidentified in a photograph taken near the airplane's final resting place, butdisappeared at some point during removal of the wreckage. The Wheeling Fire Departmentconducted an extensive search for the missing rudder actuator for eight days after theaccident. Neither Alberto-Culver Co. nor Aon Aviation were involved in the search, norwere they responsible for securing and transporting the wreckage. The NTSB and localauthorities were the only agencies that had control over the rudder actuator and otheraircraft components when the wreckage was transported to the hangar.

Each of the four estates of the persons who perished in the accident filedwrongful death actions, which were consolidated for discovery and trial and includedvarious combinations of defendants. Whitener's Estate alleged that Koppie was at faultfor the accident and that Aon defendants failed to train and instruct adequately itspilots concerning procedures in mixed crew situations. Koppie's Estate alleged thatWhitener was at fault and also claimed negligence against Alberto defendants and thevillage of Wheeling, city of Prospect Heights and Palwaukee Municipal Airport(collectively, the Municipal defendants). Alberto defendants and Whitener's Estatefiled counterclaims and third-party claims for contribution and contractual indemnityunder the Interchange Agreement against Aon defendants. Aon Corp. initially filed acounterclaim against Alberto defendants for contribution and contractual indemnitypursuant to the Interchange Agreement, but later amended the counterclaim as AonAviation, not Aon Corp.

On May 24, 1999, the circuit court granted summary judgment in favor of Municipaldefendants pursuant to the Illinois Local Governmental and Governmental Employees TortImmunity Act (745 ILCS 10/1-101 et seq. (West 2000)). The Estates of Koppie and Quernand Alberto defendants appealed that decision, which was reversed and remanded fortrial on December 7, 2000. See Anderson, 317 Ill. App. 3d at 1117. The supreme courtdenied Municipal defendants' petition for leave to appeal. Anderson v. Alberto-CulverUSA, Inc., 194 Ill. 2d 565, 747 N.E.2d 351 (2001).

On November 6, 2000, the circuit court denied Alberto defendants' emergencymotion to sever the case for trial.

The consolidated causes of action proceeded to trial on November 14, 2000, butdid not include claims asserted against Municipal defendants. Whitener's Estatethereafter dismissed Koppie's Estate as a defendant.

On December 1, 2000, over Aon defendants' objection, the circuit court held thatthe contribution claims would not be tried until the conclusion of the wrongful deathactions. The court commented several times during trial regarding the jury'sresponsibility to decide the case in two phases, "first the two wrongful death casesand after that the contribution action," and that "the same jury is going to decide thewhole thing."

The Anderson and Quern Estates later entered into settlement agreements withAlberto defendants and their causes of action were dismissed. Alberto defendantsretained their contribution and third-party claims against Aon defendants for thosesettlements.

The following evidence was adduced at trial:

John Cork, Aon's director of flight operations, testified on behalf of Whitener'sEstate. The purpose of the October 30, 1996 trip was to bring Quern to a businessmeeting in California. Cork was unsure if the pilot sitting in the left cockpit seatwas the PF on October 30, 1996; Whitener "absolutely" was in operational control of theaircraft during takeoff. Whitener was the PIC on the date of the accident as therepresentative for the company that owns the airplane, in this case, Alberto-Culver Co.

On cross-examination by Alberto defendants, Cork testified that Koppie was thePF and had responsibility for physically controlling the aircraft during the takeoffphase of the flight. The cause of the crash was the failure of the PF to maintaindirectional control of the aircraft during a gusty crosswind. Cork stated that thereis a difference between operational control and physically operating the aircraft.

The circuit court, over objections from Aon defendants and Koppie's Estate,allowed the flight planning documents into evidence subject to cross-examination.⁽⁹⁾ Aondefendants' motion to redact the flight plan filing to remove the designation of Koppieas the PIC was denied, the court stating, "[t]his is computer-generated information andit was generated at a particular time on a particular date and that generatedinformation is retained in Allied Signal, Honeywell, soon to be General Electric, filesin Washington, D.C. This comes directly out of that computer. It carries with it theaura of genuineness and I'm going to take it without redaction." The court noted otherevidence showing that Koppie was the PIC.

The circuit court also ruled that the NTSB factual report would be admitted intoevidence based on Zamora's evidence deposition (see footnote 9). The court noted thatit reserved its ruling to determine whether there was proper foundation for the reportbecause it states that Koppie was the PIC. The court stated that it admonished thejury regarding what information would be admitted into evidence. At trial, Zamoratestified as she had previously outside the jury's presence.

Edward Mendenhall, chief of safety at Gulfstream Aerospace Corporation, testifiedfor Whitener's Estate on direct examination that he was involved in the NTSBinvestigation. He worked with Whitener at Gulfstream, and flew with him on severaloccasions between 1983 and 1985. Whitener had excellent pilot skills and good cockpitresource management skills. Aon defendants' objection to this evidence on grounds ofremoteness was overruled. In Mendenhall's opinion, the pilot in the left seat wasoperating the airplane. Aon defendants' objections, based on speculation, wereoverruled on the ground that the opinion was based on the difference in conduct and theroles of the PF and PNF according to the CVR transcript from the accident.

On cross-examination by Alberto defendants, Mendenhall testified that Koppie wasboth the PF and PIC. Koppie failed to maintain directional control of the airplane. The crosswinds contributed to the loss of control. The accident would not haveoccurred if Koppie had stopped the aircraft when it started to veer from the centerline of the runway during takeoff; the aircraft was "easily stoppable." Whitener didnot cause the crash because he was not operating the controls.

Over Aon defendants' objections the circuit court allowed Mendenhall to testifyregarding whether Gulfstream or the NTSB tested the nosewheel steering componentsfollowing the accident. Aon defendants objected to this testimony because thenosewheel steering system includes the rudder actuator, which was missing from theinvestigation. Mendenhall clarified that the rudder actuator is interconnected to thenosewheel steering system through the rudder pedals, but is not actually part of thesystem.

On cross-examination of Mendenhall by Aon defendants, counsel questioned whetherthe rudder actuator was part of the nosewheel steering system, and whether there wasany malfunction of the aircraft, which the circuit court allowed because Aon defendantsagreed to provide proof that a malfunction was the proximate cause of the accident. Mendenhall testified that "[t]here was no determined malfunction on the airplane. Ifthere was a malfunction, the airplane still could have been stopped on the runway." The court did not allow questioning regarding whether the accident was "called adirectional control accident." Aon defendants, however, did question Mendenhallregarding the NSSS and whether Koppie correctly used the rudder pedals to control theaircraft.

David Kocher, a self-employed air safety investigator, testified on directexamination on behalf of the Whitener Estate that a flight plan is a document filedwith "Flight Service," which requires a listing of the PIC on that flight.

On cross-examination by the Koppie Estate, Kocher testified that it was morelikely than not that Whitener prepared the flight plan filing. The Air Route TrafficControl Center of Chicago received a flight plan filing for the October 30, 1996 flightfrom GDC. Kocher stated that the PF has the responsibility of maintaining control ofthe aircraft on takeoff and, in this case, Koppie, the PF, also was the PIC. Koppiewas negligent because he failed to maintain directional control of the aircraft and,when he lost directional control, he failed to stop. Based on his review of the NTSBfactual report, Kocher stated the aircraft had no mechanical problems.

David Simmon, a retired United Airlines pilot, testified on direct examinationfor Koppie's Estate that Whitener was the PIC based on the fact that his employer,Alberto-Culver Co., owned the aircraft, and that the Interchange Agreement stated thateach "airline" would maintain operational control of its airplanes. Simmon had neverpiloted a GIV aircraft. He explained that Whitener, as PIC, would decide where eachpilot sat in the cockpit. Alberto defendants had not taken proper steps to standardizeprocedures for a mixed flight crew. Alberto defendants should have advised the pilotswhere the NSSS was located in their aircraft because the NSSS was situated in adifferent location from the Aon Aviation GIV. Both pilots had flown the Alberto-CulverCo. GIV before and, therefore, both were aware of the NSSS location. In this case,however, Whitener read and answered the checklist himself, which included a check ofthe NSSS position.

On cross-examination, Simmon testified that Koppie did not know the location ofthe NSSS, but agreed that every left seat pilot has a duty to know the location of thatswitch. Simmon stated that Koppie turned the NSSS to the "on" position because theNTSB transcript of the flight recorded "two clunks," which represented noises turningon the hydraulics system. There was no evidence that during the takeoff roll, Koppiechanged the position of the NSSS. Simmon referred to Koppie as the PF and to Whiteneras the PNF. Koppie had responsibility to maintain directional control of the aircraft.

During recross-examination of Simmon by Alberto defendants, he testified that,based on his review of the NTSB factual report, there was no evidence of a mechanicalmalfunction in the aircraft.

Robert Hazlett, an FAA investigator, discussed operational control and theInterchange Agreement during direct examination by Whitener's Estate. Hazlettexplained that PIC and operational control commonly are misunderstood terms. Operational control is a management function that has no role in the involvement of theaccident. Alberto-Culver Co. had operational control of the flight on October 30,1996. The PIC is responsible for the operation and safety of the aircraft duringflight time. Based on the flight plan, Hazlett believed that Koppie was the PIC. InHazlett's opinion, Koppie failed to maintain directional control of the aircraft andabort the takeoff.

Hazlett testified on re-direct examination by Whitener's Estate that Whitenersaid "reverse" immediately after the aircraft veered off the runway.

Donald Kennedy, an aerodynamics consultant, testified on direct examination onbehalf of Koppie's Estate that directional control of the rudder was possible 14.1seconds into the takeoff roll and from that point, a fully deflected rudder was capableof moving the aircraft toward the right. In his opinion, a window of opportunityexisted for five seconds thereafter, during which either pilot could have regaineddirectional control of the aircraft by using the rudder pedals. After reviewing theNTSB factual report, Kennedy testified that there was no mechanical malfunction of theaircraft.

During Aon defendants' cross-examination of Kennedy, the circuit court sustainedan objection to their question concerning whether Kennedy reviewed discrepancy liststhat referred in any way to the aircraft's directional control system. The recordshows that the discrepancy list aboard the aircraft was consumed by fire.

Michael Savarese, an Alberto-Culver Co. aircraft technician, testified that theaircraft's rudders moved normally during the pre-flight check and that the rudderactuator was missing during investigation of the crash.

Fash, chief pilot for Alberto-Culver Co., testified that Koppie was the PIC,based upon the CVR recording team that listed him as captain, the flight plan filingand a National Business Aircraft Association letter to Cork. The Alberto-Culver Co.flight manual specifies that the captain, the pilot sitting in the left seat, performsthe takeoff. Fash had no difficulty using the aircraft's rudder on his flight thenight before the accident. A lack of standardization of procedures between AonAviation and Alberto-Culver Co. was one of the causes of the crash.

Calvin Tomomitsu and Richard DeVeze testified on direct examination for Albertodefendants that they were piloting an airplane that landed immediately prior to thetakeoff of the Alberto-Culver Co. GIV. Tomomitsu stated that the landing was smoothand normal, but he could feel the effect of wind gusts on his airplane. Counsel forWhitener's Estate asked Tomomitsu on cross-examination if, on a windy day, hangars atPalwaukee have an effect on aircraft using the same runway involved in the accident. Tomomitsu answered, over Aon defendants' objection, that the hangars have an effect onaircraft because they could shelter or disturb the winds. Aon defendants moved tostrike Tomomitsu's testimony, which the circuit court denied, stating expert testimonywas unnecessary to show whether a building could block wind flow.

DeVeze noted windy conditions at Palwaukee upon landing his airplane. Whenlanding at Palwaukee on the runway involved in the accident, he aims for the approachend of the runway because hangars located along the runway tend to block the wind,creating more turbulent conditions. He was asked about a logbook entry for his October30, 1996 flight, which was published to the jury. Aon defendants objected to DeVeze'stestimony because it was an undisclosed opinion in violation of Rule 213. Counsel forAlberto defendants explained that he had received the logbook entry for the first timethat morning. The court questioned DeVeze regarding the logbook entry and then allowedhim to testify because the parties could have investigated and interviewed the witnesswith respect to that information. The logbook entry noted the windy conditions on thedate of the accident and stated that the crash occurred at 12:59.

George Clarke, an aircraft accident investigation consultant, testified on behalfof Alberto defendants regarding his reconstruction of the aircraft's flight path duringthe takeoff roll. Aon defendants objected to the use of a demonstrative timelineshowing the aircraft's path on the runway, arguing that the times and speeds werechanged from the timeline presented at Clarke's deposition. The circuit court orderedAlberto defendants to redact certain portions of the exhibit and stated that theparties could impeach Clarke regarding any differences in testimony during cross-examination. Clarke testified that none of the speeds, times or distances on thetimeline were changed from his previous version. Koppie's Estate, but not Aondefendants, challenged the alleged changes to the timeline during cross-examination ofClarke.

Clarke also testified that, in his opinion, Koppie's failure to maintaindirectional control of the aircraft caused the accident. There was no indication ofany malfunction of either the steering or rudder system. An abort of the takeoff wouldnot have kept the aircraft on the runway so Koppie took the appropriate action byattempting to takeoff.

Prior to the questioning of Aon defendants' expert witness, Douglas Stimpson, thecircuit court ruled that it would limit Stimpson's testimony regarding mechanicalmalfunction as a proximate cause of the accident, noting the experience and excellentrecord of the two pilots. The court precluded testimony concerning maintenance of theaircraft.

Stimpson, an aviation accident investigator and accident reconstructionist,testified that on October 30, 1996, the pilots were confronted with a malfunction thateither made the airplane divert from the runway center line or prevented them fromcorrecting the diversion. The missing rudder actuator is a primary control duringtakeoff. Stimpson believed that Koppie moved the NSSS from a normal position to the"handwheel only" position when the airplane would not respond to the right based uponevidence of tire scuff marks. Koppie would have been aware of trouble-shooting withrespect to the NSSS and at some point during the takeoff roll would "flip that switch." There was no physical evidence of a rudder malfunction or failure of the NSSS. Stimpson was unable to establish a maintenance issue in this case.

Jeff Beck, a GIV pilot and expert witness for Alberto defendants, testified ondirect examination that Koppie was the captain flying the aircraft based on his seatingon the left side of the cockpit, the flight plan filing, and the CVR. The pilot flyingin the left seat manipulates all the controls pertaining to the aircraft's steeringcomponents during the takeoff roll. The CVR confirmed that the aircraft's rudderfunctioned normally and that the integrity of all the components that moved the ruddersystem worked properly. To taxi toward the runway, Koppie had to use the tiller wheelto turn the nosewheel 90 degrees, which indicated the tiller wheel functioned properly.

The circuit court denied Aon defendants the opportunity to cross-examine Beckregarding Stimpson's opinion on the issue of aircraft malfunction because it wasimproper for one expert to comment on another expert's testimony. The court explainedto Aon defendants that they could cross-examine Beck regarding a mechanical malfunctionof the aircraft. Beck testified there was no malfunction.

The circuit court also precluded Aon defendants from cross-examining Beckregarding ASC 302. Counsel for Aon defendants provided their offer of proof by readingfrom the subject aircraft's maintenance records regarding ASC 302, which state,"[s]ervice experience has revealed occasions when failure of the rudder pedal sensorshave caused flight delays or cancellations. This installation [of the NSSS] will allowthe aircraft to operate in hand wheel only until repairs can be made." Aon defendantsargued that ASC 302 maintenance records provide evidence that Koppie, in an effort tosteer the aircraft, switched the position of the NSSS. The court clarified thereasoning for barring cross-examination on this subject, stating, "if your [rudderpedal] sensors aren't working, rather than have a delay in repairing the sensor, allyou need do is go to a hand-wheel-only operation. That's all it means, and I'm barringyou from going into that." The court noted that Aon defendants' conclusion that Koppieswitched the position of the NSSS could not be drawn from the maintenance records.

Dr. Edmund R. Donoghue, a forensic pathologist, testified that Whitener's anklesand feet were not injured, which indicated his feet were not on the rudder pedals atthe time of the accident. Conversely, Koppie had rudder pedal injuries and wristinjuries that demonstrated he was flying the aircraft.

On January 4, 2001, Aon defendants moved for a partial directed verdict againstWhitener's Estate regarding Aon defendants' alleged independent corporate negligence,which the circuit court granted. The Estate of Whitener's case against Aon defendantswent to the jury solely for its alleged vicarious liability for the negligent acts ofits pilot, Koppie.⁽¹⁰⁾

During the jury instructions conference, the parties agreed upon liability andburden of proof instructions that made references to "Aon" without differentiatingbetween Aon Corp. and Aon Aviation. The parties discussed Alberto defendants'instruction number 2 which, in its initial draft, referred to the rights of Albertodefendants and Aon Aviation. Counsel for Aon defendants instructed that it should bechanged to "Aon."

In addition, when agency instructions were discussed, the circuit court stated,"[l]eave off Aon Aviation, Inc. Just call them Aon." Aon defendants' attorneyreplied, "[j]ust Aon. I understand. We are not contesting the agency ***." Aondefendants did not object based on the particular name assigned to them on the issueof agency.

Aon defendants also tendered and the circuit court allowed Illinois Pattern JuryInstruction (IPI) 12.05, a sole proximate cause instruction, which listed Aondefendants as "Aon."⁽¹¹⁾ Aon defendants objected to a tendered contribution instructionfrom Alberto defendants that referred to Aon Aviation. Illinois Pattern JuryInstructions, Civil, No. 600.09 (2000). The court noted that the parties had beenusing the names Aon Corp. and Aon Aviation interchangeably throughout the trial andthat Aon defendants' name was shortened to "Aon" for the jury. The court stated, "Ithink we have been using Aon in this situation. The verdicts will be corrected in theform of the judgment when [the parties] decide what are the right names of the partiesbecause you have Aon. *** We're calling it Alberto-Culver and we're calling it Aon,okay?" The court directed Alberto defendants to list Aon defendants as "Aon also knownas Aon Aviation, Inc." on the contribution instruction. Aon defendants did not objectto use of the name "Aon" on the jury verdict forms.

On January 23, 2001, the jury returned a verdict in favor of the Whitener Estateand against "Aon" in the amount of $21,051,943, which was reduced by 10% for Whitener'scontributory negligence to $18,946,749. The circuit court entered judgment on theverdict on January 24, 2001. The order stated that the jury rendered a verdict against"Aon Corporation" and declared a mistrial as to any and all remaining causes of action,including the Koppie Estate's claim and all claims for contribution "by and betweenAlberto-Culver USA Inc. and Aon Aviation Corp." and contractual indemnity in theInterchange Agreement "by Aon Corporation aka [sic] Aon Aviation Corp. against Alberto-Culver USA, Inc." With respect to the declaration of mistrials, the order wascorrected to remove Aon Corp. from the cross-action for contribution and include AonAviation for the contribution and contractual indemnity actions. Counsel for Aondefendants told the court that it could not "enter a judgment on this verdict given thefact that we did not have an opportunity in the contribution case that was joined tolitigate that. Remember we had the issues in the contribution case. You can take theverdict," but "[y]ou can't enter judgment."

Aon defendants filed a post-trial motion on February 16, 2001, which included acontention that the circuit court erred by entering judgment against Aon Corp. OnFebruary 22, 2001, Alberto defendants filed a post-trial motion to vacate the ordersdirecting mistrials in the third-party contribution actions, to enter judgment againstAon on Alberto-Culver's third-party complaints for contribution and to enter a directedverdict against Koppie in favor of Alberto-Culver. Alberto defendants' post-trialmotion did not address the issue of the January 24, 2001 judgment against Aon Corp.

Alberto defendants and Whitener's Estate opposed Aon defendants' assignment oferror regarding the entry of judgment against Aon Corp. in their separate responses tothe post-trial motion.

On May 11, 2001, the circuit court denied both Alberto and Aon defendants' post-trial motions and specifically found "no just reason to delay the enforcement or appealof this order pursuant to [Supreme Court] Rule 304(a)."

On June 8, 2001, Aon defendants filed their notice of appeal from the orderentered on January 24, 2001 entering judgment in favor of the Whitener Estate andagainst "Aon" in the amount of the jury verdict. Alberto defendants did not appeal orcross-appeal.

Alberto defendants filed an emergency motion to correct the record on July 11,2001, arguing that the January 24, 2001 order entering judgment against Aon Corp. wasa clerical error. Alberto defendants sought to correct the order, nunc pro tunc, tosubstitute Aon Aviation as judgment debtor. Aon defendants responded to the motion,asserting that because they had filed a notice of appeal, the circuit court no longerhad jurisdiction to correct the order, nunc pro tunc, and contending that the issue ofnaming the correct judgment debtor is substantive, not clerical.

On July 12, 2001, the circuit court heard argument on Alberto defendants'emergency motion. On the same date, the court entered an order nunc pro tunc enteringjudgment on the jury verdict in favor of Whitener's Estate and against Aon Aviation. The order declared mistrials in all remaining causes of action, found that naming AonCorp. as the party against whom judgment was entered on January 24, 2001 was a clericalerror and that the January 24 order was void and of no effect. Another July 12, 2001order dismissed Aon Corp. with prejudice and without costs, nunc pro tunc, as ofNovember 28, 2000, the date the court granted Aon defendants' motion to dismiss AonCorp. as a party. Aon defendants appeal.

A. 

Aon defendants initially contend that the circuit court erred by entering itsjudgment on the jury verdict against Aon Corp. on January 24, 2001 because the courtpreviously had granted Aon Corp.'s motion to dismiss on November 28, 2000.

The Whitener Estate responds that Aon defendants waive this argument because itdid not seek such relief in its initial notice of appeal, which sought a reversal ofthe January 24, 2001 order and a remand to the circuit court for further proceedings,including a new trial.

In Peluso v. Singer General Precision, Inc., 47 Ill. App. 3d 842, 851, 365 N.E.2d390 (1977) (Peluso), the court held that, although defendants' notice of appealincluded a request of relief separate from the relief requested in their originalappellate brief, plaintiffs were not prejudiced by defendants' notice of appeal. Thecourt rejected plaintiff's contention that the appeal be dismissed. Peluso, 47 Ill.App. 3d at 851. We do likewise here. No record evidence shows prejudice againsteither Whitener's Estate or Alberto defendants as a result of Aon defendants' firstnotice of appeal.

Aon defendants agreed that the two Aon companies would be treated as one entity. The circuit court and Aon defendants' attorney referred to the two Aon entities as oneparty throughout the trial without objection. Aon defendants waived and are estoppedfrom any attempt to draw a distinction between their two corporate identities in orderto create a procedural advantage.

B. 

Aon defendants next argue that the circuit court had no jurisdiction to enterany orders on July 12, 2001 because the issue of naming the correct judgment debtor issubstantive rather than clerical, and that Alberto defendants have no standing to raisethis issue because they were not a party in the judgment.

With respect to Alberto defendants' standing as a party, the purpose of thestanding requirement is to preclude a person having no interest in a controversy frombringing suit. Brockett v. Davis, 325 Ill. App. 3d 727, 730, 762 N.E.2d 513 (2001)(Brockett). To have standing, the putative party must suffer some injury in fact toa legally cognizable interest and must have sustained, or be in immediate danger ofsustaining, a direct injury as a result of the complained-of conduct. Brockett, 325Ill. App. 3d at 730. Here, Alberto defendants filed both a contribution claim andthird-party claim against Aon defendants and, therefore, had a legally cognizableinterest in the outcome of the trial although they were not part of the judgment. Alberto defendants have standing.

Generally, upon the proper filing of a notice of appeal, "the appellate court'sjurisdiction attaches instanter, and the cause is beyond the jurisdiction of the[circuit] court." Daley v. Laurie, 106 Ill. 2d 33, 37, 476 N.E.2d 419 (1985). Afiling of a notice of appeal deprives the circuit court of jurisdiction to modify itsjudgment or to rule on matters of substance which are the subjects of appeal. Bachewicz v. American National Bank and Trust Co. of Chicago, 135 Ill. App. 3d 294,297, 482 N.E.2d 95 (1985).

A nunc pro tunc order is "any entry in the present for something previously done,made to make the record speak now what was actually done then." Johnson v. FirstNational Bank of Park Ridge U/T #205, 123 Ill. App. 3d 823, 827, 463 N.E.2d 859 (1984)(Johnson). The circuit court has inherent power to enter an order, nunc pro tunc, atany time to correct a clerical error or matter of form so that the record reflects theactual order or judgment rendered by the court when such entry is based upon a definiteand certain record. Johnson, 123 Ill. App. 3d at 827. Judgments may be modified nuncpro tunc only when the correcting order is based upon evidence such as a note,memorandum or memorial paper remaining in the files or upon the records of the court. Beck v. Stepp, 144 Ill. 2d 232, 238, 579 N.E.2d 824 (1991) (Beck). The evidencesupporting nunc pro tunc modification must demonstrate clearly that the order beingmodified fails to conform to the decree actually rendered by the court. Beck, 144 Ill.2d at 238.

Clerical errors in orders, including the name of the correct judgment debtor, canbe modified in an order, nunc pro tunc. Johnson, 123 Ill. App. 3d at 827-28; SouthlandCorp. v. Village of Hoffman Estates, 130 Ill. App. 2d 311, 314-18, 264 N.E.2d 451(1970) (Southland). Here, the July 12, 2001 nunc pro tunc order was not a change ofsubstance that would present a 'new case' to this court from the matter that wasappealed. The Whitener Estate filed its complaint against both Aon corporate entities. Although the circuit court and parties to the case frequently referred to Aondefendants as "Aon" throughout the trial and did not distinguish Aon Aviation from AonCorp., the court already had dismissed Aon Corp. as a party prior to opening argument. The record shows the basis upon which the amendment was made. Southland, 130 Ill. App.2d at 317-18. Therefore, upon modifying the January 24, 2001 order, the court was notdeciding a substantive issue because Aon Corp. was no longer a party. Liability wasrendered upon Aon Aviation as the only remaining Aon corporate entity. The court heremerely corrected a clerical error to reflect the proper name of the judgment debtor. Johnson, 123 Ill. App. 3d at 828.

Aon defendants also assert, in their reply brief, that Alberto defendants movedto correct the record six days after the circuit court entered an order finding thatAlberto defendants had a duty to indemnify Aon Corp. for the judgment entered in favorof the Whitener Estate. Because Alberto defendants failed to raise this argument inits first post-trial motion and moved to correct the record after Aon defendants filedtheir initial notice of appeal, Aon defendants argue that the court was divested of anyjurisdiction in this matter. Aon defendants provide no legal authority or recordevidence to support this argument in contravention of Supreme Court Rule 341(e) (188Ill. 2d R. 341(e)). Bare contentions without argument or citation to legal authoritydo not merit consideration on appeal. 188 Ill. 2d R. 341(e); Fuller v. Justice, 117Ill. App. 3d 933, 942-43, 453 N.E.2d 1133 (1983).

Aon defendants' argument is deemed waived. See Nancy's Home of the StuffedPizza, Inc. v. Cirrincione, 144 Ill. App. 3d 934, 939, 494 N.E.2d 795 (1986).

C. 

Aon defendants next argue that the circuit court erred in accepting theWhitener Estate's jury instruction number 28 under IPI 50.02 (Illinois Pattern JuryInstruction, Civil, No. 50.02 (2000)) and rejecting Aon defendants' tendered juryinstruction number 11 because there is no record evidence that Koppie was the employeeof either Aon Corp. or Aon Aviation. Witness testimony and the Interchange Agreement,signed by Koppie as chief pilot for Aon Aviation, show that Koppie was an employee andagent for Aon Aviation. Aon defendants' argument is rejected.

D. 

Aon defendants next assert that the circuit court was biased and denied thema fair trial because of inconsistent rulings. Again, Aon defendants cite neither therecord nor legal authority to support their claim. A circuit judge is presumed to beimpartial and the burden of overcoming this presumption rests with the party assertingbias. In re Trusts of Strange, 324 Ill. App. 3d 37, 43, 755 N.E.2d 149 (2001). Actualprejudice in the form of personal bias stemming from an extrajudicial source andprejudicial trial conduct must be shown. Hartnett v. Stack, 241 Ill. App. 3d 157, 169,607 N.E.2d 703 (1993). The entry of an adverse judgment, standing alone, is notevidence of judicial bias. People v. Hall, 157 Ill. 2d 324, 335, 626 N.E.2d 131(1993).

Aon defendants present no proof of actual prejudice in the record other thanasserting cumulatively that the circuit court was biased. Aon defendants did notovercome the presumption that the court was impartial. No bias was shown.

Aon defendants next contend that the circuit court erred by phasing the trial andallowing the estates' cases to proceed to verdict prior to the conclusion of evidence,argument, jury instructions and deliberations on the remaining causes of action and,as a result, the court erred by entering judgment on the verdict in favor of Whitener'sEstate and declaring mistrials as to all remaining causes of action. Aon defendantsmaintain that all the causes of action raised in this case arise out of the sameoccurrence, the airplane crash on October 30, 1996. Because the court entered judgmenton only one of the causes of action, Aon defendants argue that the remaining mistriedcases will result in inconsistent verdicts when retried.

The record shows that the circuit court sent the estates' tort claims to the juryfirst with the intention of having that jury subsequently decide the contributionactions. The court merely ordered the presentation of evidence and argument intostages so the jury could appreciate and concentrate on different issues. Aondefendants fail to cite any legal authority that bars the court from ordering theproceedings in that fashion. By phasing the trial, the court properly excludedevidence of settlement agreements by the Anderson and Quern Estates that wereirrelevant to the claims of the Whitener and Koppie Estates and highly prejudicial toAlberto defendants. In addition, the court's procedure specifically is recognized bythe IPI.

The IPI illustrates five scenarios in which contribution claims may be tried,including where "[o]ne or more defendants bring a claim for contribution against athird party defendant (not sued by the plaintiff in the prime action); defendant(s) mayor may not counterclaim for contribution; contribution claim(s) submitted to the samejury after it has returned a verdict against one or more defendants in the prime action(referred to herein as submitted 'consecutively'), as specifically provided in IPI600.03." (Emphasis in original.) Illinois Pattern Jury Instructions, Civil, Nos.600.00, special note on use, at 648, 600.03 (2000).

Nevertheless, Aon defendants argue that the supreme court's ruling in Laue v.Leifheit, 105 Ill. 2d 191, 473 N.E.2d 939 (1984) (Laue) prevents multiple juries fromdeciding separate issues of liability to plaintiff and the percentages of liabilityamong defendants, thereby avoiding a multiplicity of lawsuits and the possibility ofinconsistent verdicts. Aon defendants misstate the holding in Laue. There, the courtfound that where a personal injury action involving joint tortfeasors is pending, thecontribution claim should be asserted by counterclaim or third-party claim in thataction or otherwise the contribution claim is barred. (Emphasis added.) Laue, 105Ill. 2d at 195-97. Contrary to Aon defendants' argument, the Laue court suggested, but did not require, one jury to hear underlying tort claims and contribution claimstogether as a matter of judicial economy. See Cook v. General Electric Co., 146 Ill.2d 548, 556, 588 N.E.2d 1087 (1992) (Cook).

The circuit court, in the exercise of broad discretion, is allowed wide latitudewhen conducting a trial. Gowler v. Ferrell-Ross Co., 206 Ill. App. 3d 194, 213, 563N.E.2d 773 (1990); Mathieu v. Venture Stores, Inc., 144 Ill. App. 3d 783, 801, 494N.E.2d 806 (1986). "When a lawsuit is tried on combined claims of comparativenegligence and contribution ***, the jury must be instructed separately and returnseparate verdicts on the claims." Ogg v. Coast Catamaran Corp., 141 Ill. App. 3d 383,385-86, 490 N.E.2d 111 (1986).

Here, both Aon and Alberto defendants asserted their counterclaims and third-party claims as required by Laue and the circuit court, under consideration of judicialeconomy, made clear throughout the trial that the same jury would hear the underlyingtort claims and contribution claims. The jury heard evidence in the estates' cases,which included evidence of alleged negligence committed by both Aon and Albertodefendants. The court did not sever the trial or set a separate proceeding to decidethe contribution and third-party claims until after the jury reached its verdict. Nowritten order was entered severing the trial. Section 2-614(b) (735 ILCS 5/2-614(b)(West 2000)) of the Code of Civil Procedure provides that the circuit court "may, inits discretion, order separate trial of any causes of action, counterclaim or third-party claim if it cannot be conveniently disposed of with the other issues in thecase." Following Cook, the same jury need not decide the estates' claims with thecontribution and contractual indemnity claims. 146 Ill. 2d at 556. Aon defendantshave not shown that the court abused its discretion by allowing the estates' cases toproceed to verdict prior to the contribution and contractual indemnity claims or thatthe court abused its discretion by entering judgment on the verdict in favor ofWhitener's Estate and declaring mistrials as to all remaining causes of action.

Aon defendants also argue that the issue of collateral estoppel extrinsically islinked to both Alberto defendants' contribution claims for its settlements of the Quernand Anderson Estates and Aon defendants' tendered jury instructions under IPI 1.03 and600.09 (Illinois Pattern Jury Instructions, Civil, Nos. 1.03, 600.09 (2000)), which,according to Aon defendants, were refused by the circuit court. Aon defendants assertthat because the jury found that Koppie was 90% at fault and Whitener was 10% at faultsolely in the Whitener Estate's case, future retrials on the remaining claims must becompared with other possible causes for the accident.

Collateral estoppel is an equitable doctrine that precludes a party fromrelitigating an issue decided in a prior proceeding. Herzog v. Lexington Township, 167Ill. 2d 288, 294, 657 N.E.2d 926 (1995). This court cannot address Aon defendants'collateral estoppel argument at this juncture because none of the reversed or mistriedcases set for retrial have commenced and, therefore, which issues will be relitigatedcannot be foreseen.

Aon defendants next maintain they were prejudiced irreparably by the circuitcourt's prohibition against introducing maintenance issues, resulting in Aondefendants' failure to establish that a mechanical malfunction in the aircraft was thesole proximate cause of the accident. Specifically, Aon defendants argue that thecourt improperly precluded Stimpson from testifying regarding prior maintenance andmalfunction incidents and that negligent maintenance was a possible cause of theaccident.

In their trial brief, addressing malfunction issues, Aon defendants stated that"AON is not claiming that the Gulfstream aircraft was defective, or that Alberto-Culvernegligently maintained the aircraft." Aon defendants failed to disclose any witnesseswho could establish that a failure of the rudder pedal sensors and directional controlsystem of the aircraft proximately caused the accident.

Despite the circuit court's preclusion of testimony concerning maintenance of theaircraft, it nevertheless allowed Stimpson to testify about whether the aircraftmalfunctioned. He stated that the accident was the consequence of some mechanicalmalfunction and that the nosewheel steering system was the source of the malfunction. Stimpson also testified that there was no evidence of a rudder malfunction or NSSSfailure, which demonstrates that no factual bases linked a mechanical malfunction tothe changes instituted by ASC 302, contrary to Aon defendants' argument. Stimpson, Aondefendants' expert witness, testified that he was unable to establish a maintenanceissue. Moreover, the record shows numerous opinions, including those of Aondefendants' witnesses, that the aircraft did not malfunction on October 30, 1996.⁽¹²⁾ Further, the record shows that regardless of a malfunction, the aircraft could havebeen stopped to avoid the accident.

No abuse of discretion has been shown. Leonardi v. Loyola University of Chicago,168 Ill. 2d 83, 92, 658 N.E.2d 450 (1995).

Aon defendants next assert that the circuit court erred by allowing introductionof the NTSB factual report, which identified Koppie as the PIC. Aon defendantschallenge Zamora's testimony as a foundational basis for admitting the report, arguingthat Zamora did not testify that the equipment used to store information of the flightplanning documents, which the NTSB used as its only basis to identify Koppie as PIC,was recognized as standard.

Illinois courts have recognized a distinction between computer-generated andcomputer-stored records. Records directly generated by a computer generally areadmissible as representing the tangible result of the computer's internal operations. In re Marriage of DeLarco, 313 Ill. App. 3d 107, 114, 728 N.E.2d 1278 (2000) (DeLarco). In contrast, printouts of computer-stored records constitute statements placed into thecomputer by out-of-court declarants and cannot be tested by cross-examination and,therefore, are inadmissible absent an exception to the hearsay rule. DeLarco, 313 Ill.App. 3d at 114.

Here, Zamora testified that GDC used a highly technical and reliable form ofApollo computer considered standard for use of computing flight plan information. Information for the flight planning documents was received by GDC at least one hourprior to flight time on October 30, 1996. Zamora's testimony establishes that thesources of information, method and time of preparation indicate trustworthiness andjustify admission of the flight planning documents.

The record evidence shows that flight plan filings, such as the one filed in theinstant case, are generated in the regular course of business and transmitted to theFAA or, otherwise, the subject flight would not have been cleared for takeoff. Zamoradescribed the entire process for submitting, storing and retrieving the flight planningdocuments. There is nothing inherently untrustworthy about the procedures testifiedto by Zamora. Zamora's testimony that she had no personal knowledge of the entrant ormaker of the documents may affect the weight of her testimony, but not itsadmissibility. See 145 Ill. 2d R. 236(a).

The circuit court properly admitted the flight planning documents within thebusiness records exception to the hearsay rule and did not abuse its discretion byadmitting the NTSB factual report based on the information contained in the flightplanning documents.

Aon defendants, citing Van Steemburg v. General Aviation, Inc., 243 Ill. App. 3d299, 611 N.E.2d 1144 (1993) (Van Steemburg), argue that the circuit court erred byadmitting into evidence and publishing to the jury the opinions in the NTSB factualreport. They contend the information contained in the report regarding Koppie's statusas PIC was an interpretation of information gathered from secondary sources by NTSBinvestigators. In Van Steemburg, over plaintiffs' objection and contrary to a priorruling on plaintiffs' motion in limine, the circuit court allowed defendants to cross-examine plaintiffs' experts with specific references to two "opinions" contained in anNTSB accident report. The findings in Van Steemburg are inapplicable to the instantcase because Aon defendants are contesting the admission of the NTSB factual reportitself, which did not occur in the above-discussed case.

The Whitener Estate argues that the NTSB factual report is admissible, citing Inre Air Crash at Charlotte, North Carolina on July 2, 1994, 982 F. Supp. 1071 (D. S.C.1996) (In re Air Crash at Charlotte) and Keen v. Detroit Diesel Allison, 569 F.2d 547(10th Cir. 1978) (Keen). Both In re Air Crash at Charlotte and Keen, however, do notinvolve the admission of NTSB reports, but refer to federal statutory language, whichprovides, "[n]o part of a report of the Board, related to an accident or aninvestigation of an accident, may be admitted into evidence or used in a civil actionfor damages resulting in a matter mentioned in the report." 982 F. Supp. at 1075; 569F.2d at 549. The court in In re Air Crash at Charlotte notes that since 1951, courtsroutinely have admitted the factual portions of investigative reports generated afteran airline disaster. The majority of courts allow the admission of factual reports aslong as they do not contain agency conclusions on the probable cause of accidents. Inre Air Crash at Charlotte, 982 F. Supp. at 1077.

Assuming, arguendo, that admission of the NTSB report was error, it was harmlessin light of the fact that testimony throughout the trial clearly demonstrated thatKoppie was the PF, the pilot manipulating the controls during the takeoff roll.

Based on the foregoing analysis and discourse, the trial was conducted fairly andproperly, the jury verdict was based upon evidence submitted by the parties, the jury'saward was supported by the record and was not palpably erroneous or unwarranted, andthere is no basis for disturbing the result reached. Parker v. Illinois Masonic WarrenBarr Pavilion, 299 Ill. App. 3d 495, 499, 701 N.E.2d 190 (1998).

Affirmed.

THEIS, P.J., and GREIMAN, J., concur.

1. The Interchange Agreement does not define "operational control," but refersto the Department of Transportation under the Federal Aviation Administration(FAA) for an explanation of this term. Operational control is defined in Title14, Part 1, Section 1 of the Code of Federal Regulations as "the exercise ofauthority over initiating, conducting or terminating a flight." 14 C.F.R.