THIRD DIVISION

February 7, 2001

No. 1-00-0651

The dominant question in this case is whether the jury'sanswer to a special interrogatory trumped its general verdict infavor of the plaintiffs. The trial court said it did. We agree.

Plaintiffs, Jennifer Simmons (Jennifer) and Harold King,individually and as co-special administrators of the estate oftheir daughter, LaTonya King (LaTonya), brought a medicalmalpractice action against defendant, Dr. Rolando M. Garces. Ajury returned a general verdict in favor of plaintiffs andagainst defendant in the amount of $675,000. In addition, thejury answered "No" to the special interrogatory: "Did dehydrationcontribute to cause the death of LaTonya King?" In response todefendant's post-trial motion, the trial court entered judgmentin favor of defendant on the special interrogatory. 735 ILCS5/2-1108 (West 1998).

Plaintiffs contend on appeal the court erred in enteringjudgment on the special interrogatory. Plaintiffs also contendthey were prejudiced by defense counsel's misconduct, errors inthe admission or refusal of evidence, and the court's refusal togive a requested missing-evidence jury instruction. We affirm.

FACTS

Dr. Garces operated a first-come-first-served clinic from 10a.m. to 5 p.m. Sharon Robinson Booker (Sharon), a medicalassistant, and Shalonda Sloan Martin (Shalonda), a receptionist,assisted Dr. Garces. Patients would sign in and be called inorder but would be called out of order if they had an emergencysituation. If a parent insisted that her child was very ill, theassistants were instructed to call Dr. Garces immediately.

Jennifer brought LaTonya to the clinic for the first time onJanuary 21, 1993. Dr. Garces pronounced LaTonya to be aperfectly healthy baby.

Jennifer testified LaTonya took four ounces of formula at 5p.m. on January 23 and again at 9 or 10 p.m. She denied LaTonyatook four ounces of formula at 6 a.m. on January 24, but she wasimpeached with her prior deposition testimony to the contrary. Jennifer also testified LaTonya took two more ounces of fluid at8:30 a.m. and another half ounce before noon on January 24. Jennifer acknowledged LaTonya had only one bowel movement on themorning of January 24, none the night before. During the last 24hours of her life, LaTonya was not sweating or vomiting.

On January 24, Jennifer called Dr. Garces at 10 a.m. andsaid LaTonya had diarrhea and was not taking her formula. Dr.Garces told Jennifer to give LaTonya Pedialyte and to come in ifthe problem persisted.

Jennifer testified when LaTonya refused the Pedialyte, shedressed her warmly and walked to the clinic at 1 p.m. Accordingto Jennifer, Shalonda went to speak with Dr. Garces and then toldJennifer Dr. Garces wanted her to get Pedialyte from a drugstore. Shalonda and Sharon testified Jennifer signed in but leftthe clinic on her own without waiting to be seen. Jenniferreturned home and tried again to get LaTonya to drink.

Jennifer said she called 911 at 2:20 p.m. and explainedLaTonya's symptoms. The 911 operator told her she should contacther pediatrician. She called the clinic again several timesduring the day but did not speak to Dr. Garces.

At 3:56 p.m., Dr. Garces spoke to Jennifer again when shecalled to say LaTonya was not drinking. He told her to try adifferent formula. If LaTonya would not take that formula,Jennifer was to take her to the emergency room because she mightget dehydrated.

Jennifer said she called a taxi about 4:13 p.m., dressedLaTonya as she had when she took her to the clinic, and waitedinside her apartment for the taxi to arrive. She said she tookthe taxi to the hospital.

At 4:40 p.m. Jennifer arrived at South Shore Hospital withLaTonya. LaTonya was not breathing. Dr. Thomas Bakh and nursesMyrna Carating and Marcel Parungao tried unsuccessfully toresuscitate LaTonya. She was pronounced dead at 5:06 p.m. Emergency room staff recorded LaTonya's rectal temperature of93.2 degrees and weight of 5 pounds 8 ounces. They also notedJennifer's statement that LaTonya was "active at 2:30" andimmediately prior to their arrival in the emergency room "infantstiffened, arms stretched, and neck hyperextended."

Officers Charles Howard, Jr., and his partner, PaulAnderson, went to the hospital emergency room to investigate thedeath. Officer Howard testified he prepared a report statingJennifer had walked to the hospital. The report was not signedby a supervisor. Officer Anderson testified, "It was myrecollection that [Jennifer] walked to the hospital according toher."

Detective David Friel and his partner Detective McMurrayarrived at the hospital between 5 p.m. and 6 p.m. to investigatethe death. They interviewed LaTonya's parents and hospital staffmembers. Detective Friel testified Jennifer told him she arrivedat the emergency room by taxi. He identified a report DetectiveMcMurray prepared at the time documenting what they learned. They closed the investigation having determined there was noapparent criminal wrongdoing.

Dr. Tae Lyong An, a Cook County forensic pathologist,performed an autopsy and determined the cause of death was"dehydration due to gastroenteritis." Dr. An definedgastroenteritis as an inflammation of the stomach and the smallintestine. He acknowledged finding no anatomic or pathologicevidence of an inflammation in the stomach or small intestineconsistent with gastroenteritis. But he explained even if notanatomically found, "it can cause diarrhea, so we say -- we callit gastroenteritis. That's nothing unusual." Three other CookCounty pathologists reviewing his opinion agreed.

Dr. An stated he did not believe there was evidence ofhypothermia. He had evidence Jennifer took LaTonya to thehospital by taxi and did not remember any information thatJennifer walked. But he did not think the information wassignificant.

Plaintiffs presented the expert testimony of Dr. GilbertGiven, a board certified pediatrician, to establish defendantdeviated from the standard of care and his negligent conductresulted in LaTonya's death by dehydration.

Dr. Given testified the standard of care for Dr. Garces isthe same as that for a board certified pediatrician. In Dr.Given's opinion, Dr. Garces deviated from that standard of careby failing to examine LaTonya when she was brought to the clinic,failing to take Jennifer's phone calls, and failing to referLaTonya to another physician or hospital.

Dr. Given said dehydration is a loss of body fluids whichcan cause death. The severity of dehydration is determined byweight loss after the illness begins. Mild dehydration isgenerally not life-threatening. However, in severe dehydration achild's circulation and blood pressure become involved. Appropriate treatment is hospitalization and administration of IVfluids.

In Dr. Given's opinion, LaTonya was severely dehydrated (12to 14%) based on the weight at autopsy (5 pounds) compared withthe weight on January 21 (5 pounds 12 ounces) and the reportsdescribing sunken eyes and dehydrated skin. He acknowledged ifhe used the weight recorded at the emergency room (5 pounds 8ounces) to calculate the percentage of weight loss, only milddehydration would be shown. He was asked:

Q: Doctor, do you have an opinion as to themechanism of LaTonya's death?

A: I believe she was severely dehydrated and thiscontributed to her death.

The appropriate treatment, he said, would have beenhospitalization and IV fluids: "I think more likely than not ifDr. Garces had intervened with appropriate IV fluids that shewould not have died."

Dr. Given was asked on direct examination aboutinconsistencies in evidence he had reviewed. Dr. Given said,"Oh, there were just numerous in terms of what was said, whatwasn't said, who said what. Even to the point of how the babygot to the hospital. It was noted by the officer that the momtook a cab. Someone else noted that the mom walked. There werejust a lot of inconsistencies."

On cross-examination, Dr. Given said there was no evidenceof acute tubular necrosis in the kidneys consistent with severedehydration. He was extensively cross-examined on the lack ofevidence in Dr. An's autopsy report to support a conclusion ofdeath by dehydration. He acknowledged the emergency room recordstated LaTonya was active and alert at 2:30 p.m.

Dr. Given agreed the physical signs of death by hypothermiaare an absence of heartbeat and a cold body, and both werepresent in this case. Counsel elicited this response from Dr.Given: "Based on review of the complete record, I would suspectthat this child had - was dehydrated. How dehydrated the child,the baby, was, I don't know."

Dr. Garces denied any negligence and denied that any claimedact or omission on his part was a proximate cause of plaintiffs'claimed injuries. He presented expert testimony to establishLaTonya's death was not caused by dehydration but occurred fromeither of two other causes: hypothermia or accidentalsuffocation. No one testified either of those two other possiblecauses was related to Dr. Garces' purported negligence.

Dr. Michael Kaufman, certified in anatomic pathology andcytopathology, testified in his opinion hypothermia was the causeof death. He explained hypothermia causes death if it is of asignificant enough degree to alter normal body metabolism tocreate an abnormal heart rhythm or systole, a total stoppage ofthe heart impulse. Dr. Kaufman noted the emergency room reportof how LaTonya had been clothed, her cold skin, and a "markedly"low rectal temperature of 93.2 degrees. He believed themechanism of death was a terminal arrhythmia which "may havecaused the seizure, but clearly it caused the heart just tostop."

Dr. Kaufman also noted the "possibility" of death bysuffocation. He noted petechia, or bleeding, in the lungs.

Dr. Kaufman found no significant evidence in the medicalrecords showing LaTonya had significant dehydration or died ofdehydration. He noted the "gross and microscopic findings of alack of gastroenteritis" in Dr. An's autopsy report. ComparingLaTonya's weight on January 21 and weight postmortem in theemergency room, the weight loss was only 4.4%, an insignificantpercentage. In addition, laboratory tests for urea nitrogen,creatinine, and sodium were inconsistent with significantdehydration. Dr. Kaufman viewed the basis of the autopsyfindings of dehydration as merely consistent with a lack ofsubcutaneous body fat.

Dr. William Wittert, a board certified pediatrician and afellow of the American College of Forensic Examiners, alsotestified for the defense. In his opinion, Dr. Garces possessedthe skill and met the standard of care of reasonably well trainedand qualified practitioners practicing in the same or similarcircumstances. He said, "I believe that nothing he did causedharm to Latonya King."

Dr. Wittert also said, "This child did not die fromdehydration." The reports of LaTonya's fluid intake from theevening of January 23 through the morning of January 24 and theoutput (one loose stool) were inconsistent with dehydration. Dr.Wittert calculated weight loss as 4.3%, which would not be life-threatening. He stated even a 7-10% weight loss should not causea baby to die of dehydration.

Dr. Wittert said he did not have an opinion to a reasonabledegree of medical certainty why LaTonya died. In his opinion, acontributing factor of death was LaTonya's "very low"temperature. He also stated, "this baby could have beensuffocated or asphyxiated."

The jury was instructed on plaintiffs' contentions asfollows: Dr. Garces was negligent on the day of LaTonya's deathby (a) failing to examine LaTonya after Jennifer brought her tothe clinic despite symptoms of diarrhea, drowsiness and inabilityto suck; (b) failing to follow up by taking phone calls fromJennifer despite LaTonya's symptoms; (c) failing to refer LaTonyato a physician or hospital for examination, diagnosis, or IVtreatment despite her symptoms; or (d) permitting his staff toprovide inappropriate medical advice or decisions over the phone. The jury was instructed it must not decide the question from anypersonal knowledge but only from expert testimony.

The court agreed to give plaintiffs' instruction oncausation, which stated:

"When I use the expression "proximate cause," Imean any cause which, in natural or probable sequence,produced the injury complained of. It need not be theonly cause, nor the last or nearest cause. It issufficient if it concurs with some other cause actingat the same time, which in combination with it, causesthe injury." Illinois Pattern Jury Instructions,Civil, No. 15.01 (3d ed. 1995).

Dr. Garces argued the jury had to determine what causedLaTonya's death because if she did not die of dehydration, therewas no support for a verdict for plaintiffs. Defendant proposedthe special interrogatory: "Did LaTonya King die of dehydration?"

Plaintiffs' attorney objected, saying, "[I]n light of thefact that this jury, who's heard lots of evidence based on thesize, the age, lots of different things, it would be veryprejudicial to the plaintiff to try to make it very narrow,because they may think that a combination of some of the heartstopping because of her age, in addition to the dehydration andthe stresses of her environment."

The court asked, "What if they think it's suffocation?"

Plaintiffs' attorney answered, "Well, if they think it'ssuffocation, there's been no testimony from the plaintiffs thatsuffocation would make the doctor responsible, so they wouldn'teven get to this. They would be on verdict form B [in favor ofdefendant]." He further stated that the jury might conclude thebaby was dehydrated, "that it did contribute to her being in adiminished state because of her age or something or because she'sa premature child her heart stopped." He concluded it would beprejudicial to tender the interrogatory "when we have all thistestimony, particularly when my expert on liability says it's acontributing cause."

Defendant's attorney argued if the jury determineddehydration was not involved in LaTonya's death, Dr. Garces couldnot be liable because "That's their whole case."

The court suggested the more appropriate question, whichwould test the verdict, would be: "Did dehydration contribute tocause the death of LaTonya King?"

The court gave the instruction over plaintiffs' objection.

After the jury began deliberating, it sent out a note askingthree questions:

"(1) If we have already decided on Form A or Form B,what is the purpose of the dehydration form?

(2) Is the dehydration form mandatory?

(3) Do we have to be unanimous on the dehydrationform?"

The court answered the first question, "It is the law," andanswered the second and third questions, "Yes."

A short time later, the jury returned its verdict in favorof plaintiffs and the signed special interrogatory answered inthe negative. Defense counsel moved for entry of judgment infavor of Dr. Garces on the basis of the inconsistency.

The court delayed entering judgment and set a briefingschedule. The court subsequently entered judgment on the specialfinding in favor of defendant and also denied plaintiffs' motionfor a new trial.

DECISION

The Special Interrogatory

Plaintiffs contend on appeal the court erred in enteringjudgment on the special interrogatory because the special findingwas not absolutely irreconcilable with the general verdict. Theyalso contend the special interrogatory was not in proper form andconfused the jury, and the jury's answer was against the manifestweight of the evidence.

Section 2-1108 of the Code of Civil Procedure provides:

"Unless the nature of the case requires otherwise, thejury shall render a general verdict. The jury may berequired by the court, and must be required on requestof any party, to find specially upon any materialquestion or questions of fact submitted to the jury inwriting. Special interrogatories shall be tendered,objected to, ruled upon and submitted to the jury as inthe case of instructions. Submitting or refusing tosubmit a question of fact to the jury may be reviewedon appeal, as a ruling on a question of law. When thespecial finding of fact is inconsistent with thegeneral verdict, the former controls the latter and thecourt may enter judgment accordingly." 735 ILCS 5/2-1108 (West 1998).

If a special interrogatory is inconsistent with the generalverdict, the special interrogatory controls. La Pook v. City ofChicago, 211 Ill. App. 3d 856, 865, 570 N.E.2d 708 (1991). Butif the special interrogatory does not cover all issues submittedto the jury and a "reasonable hypothesis" exists to allow thespecial finding to be construed consistently with the generalverdict, they are not "absolutely irreconcilable" and the specialfinding will not control. LaPook, 211 Ill. App. 3d at 865.

All reasonable presumptions must be exercised in favor ofthe general verdict. Bilderback v. Admiral Co., a Division ofMaytag Corp., 227 Ill. App. 3d 268, 270, 591 N.E.2d 36 (1992)

(interrogatories were ambiguous and concerned interlocutoryrather than ultimate facts, and the general verdict addressed anissue not determined by special findings); accord Kessling v.United States Cheerleaders Ass'n, 274 Ill. App. 3d 776, 779-80,655 N.E.2d 926 (1995)(special finding both the plaintiff anddefendant were the proximate cause of the plaintiff's injurieswas reconciled with general verdict for the defendant oninference jury found the plaintiff at least 51% negligent andentitled to no recovery).

In this case, plaintiffs' entire case was premised on thetheory Dr. Garces' negligence caused LaTonya's death by allowingher to become severely dehydrated.

To prevail, plaintiffs had to establish a standard of care,defendant's deviation from that standard, and a causal connectionbetween the deviation and the injury sustained. EvanstonHospital v. Crane, 254 Ill. App. 3d 435, 441, 627 N.E.2d 29(1993).

Proximate cause must be established by expert testimony to areasonable degree of medical certainty. Aguilera v. Mt. SinaiHospital Medical Center, 293 Ill. App. 3d 967, 972, 691 N.E.2d 1(1998); accord Townsend v. University of Chicago Hospitals, No.1-00-1301, 1-00-1369, Cons., slip op. at 14 (Dec. 20, 2000). "The causal connection must not be contingent, speculative, ormerely possible." Townsend, slip op. at 14. "If the plaintifffails to create a proximate cause fact issue for the jury toconsider, no prima facie case is made ***." Townsend, slip op.at 14.

Plaintiffs presented the testimony of one expert, Dr. Given. Dr. Given established defendant's deviation from the standard ofcare. Dr. Given testified dehydration caused or at leastcontributed to cause LaTonya's death. In his opinion, LaTonyawas dehydrated when Jennifer brought her to the clinic at 1 p.m. LaTonya would not have died if Dr. Garces had diagnosed hersymptoms of dehydration and intervened with I.V. fluids.

Plaintiffs presented no expert testimony to establish anyother causation of death but dehydration. Moreover, plaintiffs'attorney in closing argument disputed any other theory of deathpresented by defendant's experts. He argued the evidenceestablished "dehydration did contribute to cause the death ofLaTonya" and if the jury found that dehydration did contribute,it had no choice in how to answer the question asked in thespecial interrogatory; it had to say "yes."

When the jury was asked to focus its attention on theparticularized question of whether dehydration contributed tocause LaTonya's death, it answered "No." Plaintiffs' attempt toestablish a causal connection between defendant's negligence andLaTonya's death then failed for lack of expert testimony.

Unlike the cases on which plaintiffs rely, there is noreasonable hypothesis remaining on which to reconcile the jury'sanswer to the special interrogatory with the general verdict. The trial court properly entered judgment on the specialinterrogatory.

Plaintiffs also contend the interrogatory should not havebeen given because it was confusing and not in proper form. Wedisagree.

A special interrogatory may not ask for a finding on a "mereevidentiary fact" but must address a material question of fact,defined as "an ultimate fact upon which the rights of the partiesdepend." Meister v. Henson, 253 Ill. App. 3d 619, 628, 625N.E.2d 404 (1993).

A special interrogatory is in proper form if it is a singlequestion, it relates to an ultimate issue of material fact whichwould control an inconsistent general verdict, its terms aresimple, unambiguous, and understandable, and it is not repetitiveor confusing. Snyder v. Curran Township, 281 Ill. App. 3d 56,61, 666 N.E.2d 818 (1996); see also Eaves v. Hyster Co., 244 Ill.App. 3d 260, 265-66, 614 N.E.2d 214 (1993)(in proper form ifeither a positive or negative answer could test some generalverdict); Gasbarra v. St. James Hospital, 85 Ill. App. 3d 32, 38,406 N.E.2d 544 (1980)(to be in proper form, a responsive answermust be inconsistent with some general verdict which might bereturned).

Special interrogatories are considered in light of thecourt's other instructions to the jury to determine how it wasunderstood and whether the jury was confused. La Pook, 211 Ill.App. 3d at 866.

A special interrogatory need not contain all elements ofnegligence and is proper if it focuses on one element dispositiveof the claim. Snyder, 281 Ill. App. 3d at 61-62.

The special interrogatory here asked a single question. Itrelated to an ultimate issue of material fact regarding cause ofdeath. See Costa v. Dresser Industries, Inc., 268 Ill. App. 3d1, 11, 642 N.E.2d 898 (1994).

In Costa, the plaintiff's entire case was premised on aclaim the decedent died of mesothelioma as a result of exposureto asbestos. The defense asserted the plaintiff died of anothercause unrelated to asbestos exposure. The special interrogatoryasked simply: "Do you find that Dominic Costa died from thedisease of mesothelioma?" The court in Costa found the specialinterrogatory was proper because a negative answer would disposeof the plaintiff's claim. Costa, 268 Ill. App. 3d at 11.

As in Costa, the special interrogatory in this case asked asingle question of ultimate fact which was dispositive ofplaintiffs' claim defendant's negligent failures to act causedLaTonya's death by dehydration.

We see a strong resemblance between the specialinterrogatory in this case and the question asked in Bluestein v.Upjohn Co, 102 Ill. App. 3d 672, 430 N.E.2d 580 (1981). InBluestein, the plaintiff's expert testified the defendant'sproduct, Cleocin, caused grave damage to the plaintiff. Upjohn'sexperts said Cleocin did not harm the plaintiff. The jury wasasked: "[w]as Cleocin a proximate cause of the injuries claimedby Stuart Bluestein?" The jury returned a substantial generalverdict for the plaintiff, but answered "no" to the specialinterrogatory, causing the trial judge to enter judgment inUpjohn's favor. The court affirmed the trial judge, saying:"Very simply, the jury's answer reflected their acceptance ofUpjohn's argument that the plaintiff was suffering from a diseasethat was completely unrelated to his ingestion of Cleocin." Bluestein, 102 Ill. App. 3d at 676.

In Bluestein, as in this case, the special interrogatory didnot address every issue. It addressed the hotly contestedultimate fact on which liability could turn: whether thedefendant's product (here, read negligence) was a proximate causeof the plaintiff's injury.

The terms of the special interrogatory in this case wereclearly understandable and not confusing. Initially, commonlyused words need not be defined by the court in jury instructions. La Pook, 211 Ill. App. 3d at 865-66. Moreover, although thecourt did not define the term "dehydration," dehydration wasextensively discussed and defined through expert testimony. Thejury did not consider the special interrogatory without havingheard extensive testimony on the subject. It was Dr. Given whotwice told the jury Dr. Garces' negligent conduct causedLaTonya's dehydration, which "contributed" to her death.

Nor did the jury's questions reflect any confusion. Thequestions regarded procedure. The jury did not appear confusedabout the actual question posed in the special interrogatory.

When considered with the other instructions regardingproximate cause (any concurring cause), there is no reason toconclude the jury was confused by the special interrogatory. Itwas in proper form and acted as a proper check on the ultimateissue of causation. See La Pook, 211 Ill. App. 3d at 865-67.

Plaintiffs also contend the special finding was against themanifest weight of the evidence.

To prevail, plaintiffs must establish the oppositeconclusion was clearly evident or the special finding wasunreasonable and not based on any evidence. Morton v. City ofChicago, 286 Ill. App. 3d 444, 452, 676 N.E.2d 985 (1997).

The testimony of defendant's experts provided substantialevidence that LaTonya did not die from dehydration.

Dr. Kaufman testified there was no significant evidenceshowing LaTonya died of dehydration. The gross and microscopicfindings in the autopsy report provided no evidence ofgastroenteritis, which would result in dehydration. Otherreported laboratory tests for urea nitrogen, creatinine, andsodium were absolutely inconsistent with significant dehydration. Moreover, LaTonya's weight loss from January 21 to January 24 wasonly 4.4%, an insignificant percentage. Dr. Kaufman believed theautopsy finding based on poor skin turgor and sunken eyes wasmistaken. He noted LaTonya's premature birth and low weight andexplained those findings as consistent with a lack ofsubcutaneous body fat.

Moreover, his testimony provided an alternate cause ofdeath, hypothermia, unrelated to defendant's alleged negligence. The conclusion LaTonya died of hypothermia was supported by herlow rectal temperature of 93.2 degrees and the way she wasclothed and wrapped on arrival at the emergency room. Dr.Kaufman believed hypothermia resulted in an arrhythmia whichcaused her heart to stop beating.

Dr. Wittert stated unequivocally, "This baby did not diefrom dehydration." He testified LaTonya's fluid intake andoutput and her percentage of weight loss were inconsistent withdehydration.

The jury had ample expert evidence on which to concludedehydration did not contribute to cause LaTonya's death. Thespecial finding was supported by sufficient evidence. The courtcorrectly determined the special finding was not against themanifest weight of the evidence and, based on the answerregarding causation, properly entered judgment in favor ofdefendant. Borries v. Z. Frank, Inc., 37 Ill. 2d 263, 265-67,226 N.E.2d 16 (1967); La Pook, 211 Ill. App. 3d at 868-69.

Other Issues

Plaintiffs also contend they were denied a fair trial by themisconduct of defense counsel, certain evidentiary rulings, andthe court's refusal to give a missing evidence instruction.

This case was vigorously tried on both sides. Defendant'scounsel objected to certain terminology employed by plaintiffs'attorney, as well, and also moved unsuccessfully for a mistrialseveral times based on alleged errors prejudicial to defendant.

A review of the record establishes plaintiffs were notunfairly prejudiced. Any error which might have occurred did notaffect the outcome of the case. That is, the purported trialerrors had little or no bearing on the question posed by thespecial interrogatory. The jury returned a general verdict for$675,000 in plaintiffs' favor. Their right to a fair trial wasnot seriously prejudiced. See McDonnell v. McPartlin, 192 Ill.2d 505, 535, 736 N.E.2d 1074 (2000); Nilsson v. NBD Bank, 313Ill. App. 3d 751, 760, 731 N.E.2d 774 (1999).

We briefly set out plaintiffs' contentions.

(1) Plaintiffs contend defense counsel demeaned therequirement for bringing suit, fibbed about defendant requestinga jury trial, exaggerated plaintiffs' burden, and made improperpleas for sympathy. Defendant correctly notes plaintiffs fail tocite authority to show the challenged comments were improper(Supreme Court Rule 341(e)(7)), waived many of the errors byfailing to object in a timely manner (Diaz v. Kelley, 275 Ill.App. 3d 1058, 1072, 657 N.E.2d 657 (1995)), or failed to specifythe basis of the objection. A number of other objections weresustained, curing any error. The jury was properly instructedthat arguments, statements, and remarks of counsel were notevidence.

(2) Plaintiffs filed a motion in limine to bar evidence asto whether Jennifer took a taxi or walked to the emergency room. They argued there was apparently contradictory evidence on theissue, defendant's experts said it was irrelevant to theiropinions, and it was a collateral issue. Defendant argued it wasrelevant to Jennifer's credibility and said Jennifer told theemergency room nurse and the initial investigating officers shewalked. Later that same day, she told detectives she took ataxi.

Plaintiffs did not object when Dr. An testified he receivedinformation Jennifer arrived at the hospital by taxi and did notremember any information she walked. Because plaintiffs' motionin limine was denied and they failed to object when theinformation was introduced, they waived the issue for review. Brown v. Baker, 284 Ill. App. 3d 401, 406, 672 N.E.2d 69 (1996).

In fact, plaintiffs' counsel elicited Dr. Given's testimonyon the issue during direct examination. Dr. Given testified asto the inconsistency regarding how the baby arrived at thehospital. He noted one officer said she arrived by cab butsomeone else said she walked. Having failed to object at trialand having introduced the evidence themselves, plaintiffs cannotnow complain of error. Reid v. Sledge, 224 Ill. App. 3d 817,822, 587 N.E.2d 1156 (1992).

(3) The court properly refused to strike any testimony inthe record that could have implied Jennifer was negligent. Adefendant is always free to offer evidence that its conduct,negligent or not, was not a proximate cause of the injury.McDonnell, 192 Ill. 2d at 520-21. No contributory negligenceclaim went to the jury. The defense did not contend plaintiffswere contributorily negligent.

(4) Finally, the trial court did not abuse its discretionwhen it refused to give plaintiffs' tendered "missing evidence"jury instruction, which would have allowed the jury to draw anegative inference from defendant's failure to produce atemporary record of LaTonya's height and weight on January 24. See Illinois Pattern Jury Instructions, Civil, No. 5.01. Theinstruction is warranted only if there was no reasonable excusefor failure to produce the evidence. Brown v. Moawad, 211 Ill.App. 3d 516, 531, 570 N.E.2d 490 (1991). In this case, there wasa reasonable explanation provided by defendant. LaTonya's chartwas out of the office for billing. When height and weight wererecorded on a temporary chart, office policy mandated saving itonly when Dr. Garces saw the patient. Otherwise, it wasdiscarded. Dr. Garces did not see LaTonya on January 24.

The special interrogatory was in proper form, was notconfusing or misleading, and was not against the manifest weightof the evidence. The jury's answer to the question posed wasabsolutely irreconcilable with the general verdict. The trialcourt properly entered judgment in favor of defendant. Plaintiffs received a fair trial free from unfair prejudice asevidenced by the jury's general verdict in their favor.

Affirmed.

BURKE, J., concurs.

HALL, P.J., dissents.

PRESIDING JUSTICE HALL dissenting.

I respectfully dissent from the majority opinion in thiscase because I am of the opinion that the answer to the specialinterrogatory can be reconciled to the jury's general verdict inthis case. Moreover, I disagree with the majority's statementthat the plaintiffs' entire case was premised on the theory thatDr. Garces' negligence caused LaTonya's death by allowing her tobecome severely dehydrated.

In a medical malpractice case, Illinois law mandates thatthe plaintiff prove: (1) the proper standard of care by which tomeasure the defendant's conduct, (2) a negligent breach of thestandard of care, and (3) resulting injury proximately caused bythe defendant's lack of skill or care. Suttle v. Lake ForestHospital, 315 Ill. App. 3d 96, 102, 733 N. E. 2d 726, 731 (2000). It is the plaintiff's duty to present expert testimony toestablish the above requirements. Suttle, 315 Ill. App. 3d at102-103, 733 N.E.2d at 731.

If the plaintiffs had based their entire claim against Dr.Garces on his failure to diagnose and treat LaTonya fordehydration, I would agree with the majority that a finding bythe jury that dehydration did not contribute to LaTonya's death,would be irreconcilable with a jury verdict for the plaintiffs inthis case. However, based on the expert testimony in this case,regardless of whether LaTonya died of dehydration, hypothermia orsuffocation, the jury could have found that Dr. Garces' actionsor failure to act proximately caused LaTonya's death.

The jury was instructed that the plaintiffs claimed that Dr.Garces was negligent in one or more of the following respects:

"a. Failed to examine LaTonya King after being brought tothe clinic by the mother on January 24, 1994, when he knewor should known that LaTonya King has symptoms of diarrhea,drowsiness and the inability to suck; or

b. Failed to follow up by taking phone calls from JenniferSimmons, when he knew or should have known that LaTonya Kinghad symptoms of diarrhea, drowsiness and the inability tosuck; or

c. Failed to refer LaTonya King to a physician or hospitalfor examination, diagnosis, or IV treatment when he knew orshould have known that LaTonya King had symptoms ofdiarrhea, drowsiness and the inability to suck; or

d. Permitted his staff to provide inappropriate medicaladvice or decisions over the phone."

None of the plaintiffs' allegations of negligence mention"dehydration" or indeed any specific cause of death. Rather, theplaintiffs' allegations center around Dr. Garces' failure toprovide follow up care to LaTonya based upon the symptoms she wasdisplaying, regardless of what disease or condition she wassuffering from.

Dr. Givens, the plaintiffs' expert witness, testified that,having initiated treatment of LaTonya, the standard of carerequired Dr. Garces to follow up that treatment. In Dr. Givens'opinion, Dr. Garces violated the standard of care when he did notexamine LaTonya after he was informed that she was not respondingto recommended therapy, when he did not speak to Jennifer whenshe called because LaTonya was getting worse, by allowing hisstaff to advise Jennifer to force LaTonya to take the Pedialyteinstead of letting Jennifer speak directly to Dr. Garces, andwhen he did not make arrangements for LaTonya to be seen byanother medical professional.

When asked if the above negligent acts were a proximatecause of LaTonya's death, Dr. Givens opined, with a reasonabledegree of medical certainty, that they were because

"based upon on history and the findings at the autopsy, that[Dr. Garces'] failure to see her and intervene contributedto her death."

In addition, Dr. Givens opined that had Dr. Garces intervenedwith appropriate IV fluids, LaTonya would not have died. (Emphasis added.)

Under the proximate cause instruction that the jury receivedin this case, in order to find Dr. Garces' failure to follow uptreatment with LaTonya was the proximate cause of her death, thejury was not required to find that the failure to do so was theonly cause and that it would be sufficient if his acts or failureto act in combination with another cause resulted in her death. Therefore, regardless of the ultimate cause of LaTonya's death,the jury could have concluded that had Dr. Garces followed up onLaTonya's care and treatment, she would not have died.

Thus, the jury's answer to the special interrogatory thatdehydration did not contribute to LaTonya's death did not reflectthe jury's belief that Dr. Garces' actions were not a proximatecause of LaTonya's death. The jury merely rejected the premisethat dehydration contributed to LaTonya's death. Under theevidence in this case, the jury could determine that dehydrationdid not contribute to LaTonya's death and still find that Dr.Garces' failure, once having undertaken to treat her, to followup the treatment for what she ultimately died of was a proximatecause of her death.

The cases relied on by the majority are distinguishable. InCosta, the plaintiff's entire case was based upon the fact thatthe decedent died from mesothelioma and therefore, the jury'sfinding pursuant to a special interrogatory that the decedent didnot die from mesothelioma was irreconcilable with the jury'sgeneral verdict for the plaintiff. In Bluestein, all of theplaintiff's theories of recovery required that the jury find thatthe drug Cleocin caused or was part of the cause of theplaintiff's injury. Thus, the jury's determination that Cleocinwas not a proximate cause of the plaintiff's injury, could not bereconciled with the jury's general verdict for the plaintiff.

However, in this case, the plaintiffs' entire case was notbased upon dehydration having contributed to LaTonya's death.Whatever the cause of death, it was Dr. Garces' failure to followup treatment which contributed to her death.

As I am of the opinion that the jury's determination thatdehydration did not contribute to LaTonya's death was notinconsistent with the jury's general verdict for the plaintiffs,I respectfully dissent.