FOURTH DIVISION

MARCH 13, 2003

1-01-3050

JUSTICE HARTMAN delivered the opinion of the court:

Plaintiff, Martia Thornhill, appeals from a jury verdict in favor ofdefendants, Midwest Physician Center of Orland Park and Dr. Mari Ann Herbert, ina wrongful birth action. Plaintiff sought recovery for the extraordinary expensesinvolved with raising her Down's Syndrome daughter, alleging that defendantsnegligently failed to inform her of her unborn daughter's genetic defect until itwas legally too late for her to obtain an abortion. On appeal, plaintiff contendsthat the circuit court erred in: (1) denying her motion for a directed verdict onliability; (2) improperly restricting voir dire; (3) making several evidentiaryrulings; (4) instructing the jury on the issue of burden of proof; (5) allowingdefense counsel to argue facts not in evidence during closing argument; and (6)denying plaintiff's motion for a judgment notwithstanding the verdict (judgmentn.o.v.) or, in the alternative, a new trial. On December 21, 1996, plaintiff gave birth to a daughter, Aubria, whosuffers from Down's Syndrome. Dr. Herbert provided plaintiff's prenatal care. On July 22, 1996, per Dr. Herbert's order, plaintiff was administered analphafetoprotein (AFP) test, which is a blood test that screens for geneticdefects such as Down's Syndrome. Dr. Herbert testified that she initiallyreviewed plaintiff's AFP test results on July 24, 1996, and told plaintiff theresults were fine. The report of plaintiff's AFP test stated, however, under theheading "Down's Syndrome interpretation," "this risk factor indicates an increasedlikelihood for Down's [S]yndrome pregnancy." Dr. Herbert re-checked the testresults in late October 1996 and discovered her mistake. On October 30, 1996, Dr.Herbert notified plaintiff of the correct AFP results and set up a consultationfor plaintiff with Dr. William Donald, a perinatologist. Dr. Herbert admittedthat she misread the report and that, when she gave plaintiff the correct AFP testresults, it was too late for plaintiff electively to terminate the pregnancy. Dr.Herbert further admitted that she deviated from the standard of care by notinforming plaintiff of the correct AFP test results within the time period duringwhich plaintiff electively could have terminated her pregnancy.

During adverse examination at trial, Dr. Herbert agreed that prior toOctober 30, 1996, she never spoke with plaintiff regarding termination of thepregnancy. Dr. Herbert further testified regarding a conversation she had withplaintiff after plaintiff's consultation with Dr. Donald.⁽¹⁾

During her case-in-chief, Dr. Herbert testified regarding the preceding conversation, stating that "my very last statement to [plaintiff] was it is myunderstanding that you would not have altered this pregnancy regardless, and sheagreed." Dr. Herbert was then asked "did [plaintiff] at any time during thatoffice visit tell you that if she had known of an abnormal triple screen and ahigher incidence of Down's [Syndrome] that she would have terminated thepregnancy," to which Dr. Herbert responded "no."

Dr. Robert E. Eilers, plaintiff's damages expert, testified regardingAubria's needs and the estimated costs of meeting those needs through age 18. Prior to trial, the circuit court, as a discovery sanction, barred Dr. Eilers fromtestifying as to his most recent examination of Aubria.

Joseph Thornhill, plaintiff's husband and Aubria's father, testified thatprior to undergoing the AFP test, he and plaintiff had decided that if the testrevealed genetic abnormalities in the fetus it would be aborted.

Plaintiff testified that if she had been informed of the correct AFP testresults in July 1996, she would have terminated the pregnancy. She denied evertelling Dr. Herbert that she would not have terminated the pregnancy. Plaintiffstated that she works full time as a registered nurse.

Plaintiff was recalled as a rebuttal witness and stated that Dr. Herbertnever asked her what she would have done about continuing the pregnancy if she hadknown the abnormal results earlier. She denied telling Dr. Herbert that she wouldnot have terminated the pregnancy even if she had known the results earlier. Atthe close of all the evidence, plaintiff moved unsuccessfully for a directedverdict on the issue of liability. The jury returned a verdict in favor ofdefendants. Plaintiff's post-trial motion was denied.

Plaintiff first contends that the circuit court erred in failing to granta directed verdict in her favor on the issue of liability.

A. Plaintiff argues that she sustained her burden of proof on the issue ofproximate cause, as a matter of law, because she established that she had beendeprived of the opportunity to have an abortion. It was undisputed that Dr.Herbert deviated from the standard of care by failing to read the test reportcorrectly. It was further undisputed that when plaintiff was given the correcttest results, it was too late for her legally to terminate her pregnancy inIllinois. Plaintiff insists she was not required to prove that she would haveterminated the pregnancy if timely informed that a genetic defect was present. It should be noted that despite this argument, plaintiff alleged in her complaintthat "[b]ut for the defendants' negligence the plaintiff, MARTIA THORNHILL, wouldhave terminated the congenitally or genetically defective fetus."

In Siemieniec v. Lutheran General Hospital, 117 Ill. 2d 230, 512 N.E.2d 691(1987) (Siemieniec), the supreme court recognized a cause of action for wrongfulbirth, which it defined as:

"the claim for relief of parents who allege they wouldhave avoided conception or terminated the pregnancy byabortion but for the negligence of those charged withprenatal testing, genetic prognosticating, or counselingparents as to the likelihood of giving birth to aphysically or mentally impaired child. The underlyingpremise is that prudent medical care would have detectedthe risk of a congenital or hereditary genetic disordereither prior to conception or during pregnancy. As aproximate result of this negligently performed or omittedgenetic counseling or prenatal testing, the parents wereforeclosed from making an informed decision whether toconceive a potentially handicapped child, or in the eventof a pregnancy, to terminate the same." Siemieniec, 117Ill. 2d at 235.

The Siemieniec court was careful to emphasize the procedural posture of thecase, noting that the question was not whether plaintiffs ultimately shouldprevail in the litigation, but whether the complaint stated a legally cognizablecause of action. The court accepted as true all well-pleaded facts, including theallegation "that if [plaintiff] had been accurately advised of the chances thather already conceived child would be afflicted with hemophilia, then she wouldhave terminated the pregnancy by abortion." Siemieniec, 117 Ill. 2d at 234-35. Further, in recognizing the cause of action, the court noted that "courts whichhave considered wrongful birth claims have been almost unanimous in theirrecognition of a cause of action against a physician or other healthcare providerwhere it is alleged that but for the defendants' negligence the parents would haveterminated the congenitally or genetically defective fetus by abortion." Siemieniec, 117 Ill. 2d at 256.⁽²⁾

In McDaniel v. Ong, 311 Ill. App. 3d 203, 724 N.E.2d 38 (1999) (McDaniel),the guardians of a nursing home patient, who suffered from severe developmentaldisabilities and had given birth to a child after becoming pregnant while in thenursing home, brought a medical malpractice action against the patient's doctorbased on her failure timely to detect the pregnancy. The plaintiffs claimed thatthe failure to diagnose the pregnancy sooner precluded the patient from obtainingan abortion. The appellate court noted that the plaintiffs were required to showproximate cause. The plaintiffs failed to demonstrate that if the pregnancy hadbeen diagnosed earlier the patient would have obtained an abortion. Afterconsidering the doctrine of loss of chance, the court found that "[t]he fact that[the plaintiffs] have not asserted that different action would have beenundertaken to end the pregnancy if the pregnancy had been detected sooner [i.e.an abortion] leaves a gap in the proof as to proximate cause." McDaniel, 311 Ill.App. 3d at 211. The appellate court affirmed the grant of summary judgment infavor of the doctor.

Plaintiff seeks to distinguish McDaniel on its facts, pointing out that itis not a wrongful birth case. Plaintiff stressed during oral argument, however,that the present case was a lost chance case. In McDaniel, the appellate courtspecifically considered the lost chance doctrine and proximate cause in thecontext of an abortion case. McDaniel, 311 Ill. App. 3d at 209-12. McDaniel'sdiscussion of proximate cause is instructive for the present case.

Pursuant to Siemieniec and McDaniel, in order to establish proximate causeplaintiff was required to plead and prove that, had she known of the correct AFPtest results in a timely fashion, she would have terminated the pregnancy.

B. Plaintiff next argues that the circuit court erred in concluding thata question of fact existed because the evidence supported only one conclusion -that she would have terminated the pregnancy had she timely learned the AFP testresults.

A directed verdict is proper only when the evidence, viewed in the lightmost favorable to the nonmovant, so overwhelmingly favors the movant that nocontrary verdict based on that evidence could stand. Pedrick v. Peoria & EasternR.R. Co., 37 Ill. 2d 494, 229 N.E.2d 504 (1967) (Pedrick). The denial of a motionfor directed verdict is reviewed de novo. Schiff v. Friberg, 331 Ill. App. 3d643, 771 N.E.2d 517 (2002) (Schiff).

Both plaintiff and her husband testified that prior to undergoing the AFPtest they had discussed and agreed that if the test revealed a genetic abnormalitythey would abort the baby. Plaintiff denied having any conversation with Dr.Herbert in which plaintiff said she would not have terminated the pregnancy. Dr.Herbert testified that during her conversation with plaintiff in November 1996,plaintiff agreed that she would not have altered the pregnancy regardless of whenshe learned the correct AFP test results. Plaintiff argues that theinconsistencies in Dr. Herbert's testimony regarding her conversation withplaintiff render defendants evidence "a mere scintilla" and not sufficient todefeat plaintiff's motion for a directed verdict. See Williams v. ChicagoOsteopathic Health Systems, 274 Ill. App. 3d 1039, 654 N.E.2d 613 (1995).

The inconsistencies in Dr. Herbert's testimony identified by plaintiff didnot reduce her evidence to a mere "spark or trace" (Black's Law Dictionary 1347(7th ed. 1999)), but required a credibility evaluation by the factfinder, here thejury. The jury was presented with the conflicting testimony and made itscredibility determinations. A directed verdict is improper where, as here, "thereis any evidence, together with reasonable inferences to be drawn therefrom,demonstrating a substantial factual dispute, or where the assessment ofcredibility of the witnesses or the determination regarding conflicting evidenceis decisive to the outcome." Maple v. Gustafson, 151 Ill. 2d 445, 454, 603 N.E.2d508 (1992) (Maple).

C. Making arguments identical to the foregoing, plaintiff contends that thecircuit court erred in denying her post-trial motion for judgment n.o.v. or,alternatively, a new trial.

The grant or denial of a judgment n.o.v. is reviewed de novo. Jones v.Chicago Osteopathic Hospital, 316 Ill. App. 3d 1121, 738 N.E.2d 542 (2000)(Jones). A judgment n.o.v. is properly entered only in those limited cases where"all of the evidence, when viewed in its aspect most favorable to the opponent,so overwhelmingly favors movant that no contrary verdict based on the evidencecould ever stand." Pedrick, 37 Ill. 2d at 510. Where the assessment ofcredibility of witnesses may be decisive to the outcome, it is error to enter ajudgment n.o.v. Pempek v. Silliker Laboratories, Inc., 309 Ill. App. 3d 972, 723N.E.2d 803 (1999).

A circuit court's decision to grant or deny a new trial will not bedisturbed on review absent an abuse of discretion. Jones, 316 Ill. App. 3d at1125. A new trial should be granted only when the verdict is against the manifestweight of the evidence, that is, the opposite conclusion is clearly evident or thejury's findings are unreasonable, arbitrary, or not based on the evidence. Maple,151 Ill. 2d at 454.

Just as plaintiff's arguments did not support her contention regarding thepropriety of a directed verdict, they do not support her contentions regardingjudgment n.o.v. or a new trial.⁽³⁾

When viewed in the light most favorable to defendants, the evidence does notso overwhelmingly favor plaintiff that no contrary verdict could ever stand. Moreover, the verdict was not against the manifest weight of the evidence. Thecircuit court did not err in refusing to grant plaintiff a directed verdict onliability, a judgment n.o.v., or a new trial.

Plaintiff next contends that she is entitled to a new trial because thecircuit court's restriction on voir dire constituted reversible error. Specifically, plaintiff argues that the court erred when it barred her from askingprospective jurors whether they felt it was wrong to terminate a pregnancy becausethe fetus had a genetic defect.

The purpose of voir dire is to assure the selection of an impartial panelof jurors, persons who are free from bias or prejudice. Kingston v. Turner, 115Ill. 2d 445, 505 N.E.2d 320 (1987) (Kingston). Pursuant to Supreme Court Rule 234(177 Ill. 2d R. 234), the primary responsibility for initiating and conducting thevoir dire examination lies with the trial judge and the scope and extent of theexamination rests within his or her discretion. Kingston, 115 Ill. 2d at 464. The standard for determining whether the circuit court has abused its discretionis whether the voir dire allowed created a reasonable assurance that prejudicewould be discovered if present. Friedman v. Park District of Highland Park, 151Ill. App. 3d 374, 502 N.E.2d 826 (1986) (Friedman). When questioning ofprospective jurors is turned over to counsel, it is properly within the scope ofquestioning to expose any hidden bias or prejudice of a prospective juror. Rubv. Consolidated Rail Corp., 331 Ill. App. 3d 692, 771 N.E.2d 1015 (2002). Anabuse of discretion can be established where the court refused certainsupplemental questions by counsel which directly impact on a specific bias orprejudice. Friedman, 151 Ill. App. 3d at 382.

Plaintiff points to three specific instances where the circuit courtsustained defense objections during voir dire. First, the court, prior to thestart of voir dire, denied plaintiff's request to ask prospective jurors "whetherif they were in a situation where they were pregnant or their wife was pregnantor their daughter was pregnant, and they learned that the child was likely to beborn with a genetic defect, a significant genetic defect such as Down['s]Syndrome, would they have any moral or philosophical opposition to termination ofthe pregnancy." The court properly rejected plaintiff's proposed question as aninappropriate attempt to put the potential jurors in plaintiff's shoes. Gasiorowski v. Homer, 47 Ill. App. 3d 989, 994, 365 N.E.2d 43 (1977) ("[q]uestionswhich tend to put prospective jurors in the place of the parties to the litigationopen a wide range of possibilities for indoctrination or pre-education of jurors,and lend themselves all too easily to attempts to obtain some positive indicationas to which party the jurors might favor.")

Second, plaintiff attempted to ask potential juror Paul Herbert whether hethought "that a person who terminates a pregnancy because the baby has Down'sSyndrome has committed a sin or a wrong against God's law?" Prior to thisquestion, which was not allowed, plaintiff was permitted to ask Herbert "[d]o youhave a quarrel with a woman's decision to terminate a pregnancy because genetictesting shows that there is a significant congenital defect or developmentalproblem?" Plaintiff exercised a peremptory challenge to excuse Paul Herbert; noprejudice, therefore, ensued.

Third, the court sustained an objection to the following question, asked ofpotential juror Peggy Snodgrass, on the ground that the subject had already beencovered: "Do you have any problem with a woman's right to terminate a pregnancyif prenatal genetic testing indicates that there is a probability or likelihoodof significant birth defect?" Plaintiff cannot establish any prejudice from thisrestriction on voir dire, since the defense later exercised a peremptory challengeagainst potential juror Snodgrass.

The record as a whole demonstrates that the circuit court questioned eachpotential juror thoroughly regarding the abortion issue. The court excused 11potential jurors based upon their opinions regarding abortion. On severaloccasions throughout voir dire, plaintiff was allowed to ask potential jurorsabout their views on abortion in the specific circumstances relevant to this case. Plaintiff simply did not attempt to ask most of the potential jurors about theirviews on abortion in the specific circumstances relevant to the case.

The circuit court did not abuse its discretion with regard to voir dire.

Plaintiff next contends that she was denied a fair trial due to severalerroneous evidentiary rulings by the circuit court.

A. Plaintiff argues that the circuit court abused its discretion byallowing Dr. Herbert to testify for the first time at trial, in violation offormer Supreme Court Rule 213 (177 Ill. 2d R. 213) (former Rule 213), thatplaintiff had told her that even if she had known of the correct results sooner,she would not have terminated the pregnancy. Defendants respond that Dr.Herbert's trial testimony was consistent with her deposition testimony. Admissionof evidence pursuant to former Rule 213 is within the circuit court's discretionand the court's ruling will not be reversed absent an abuse of that discretion. Department of Transportation v. Crull, 294 Ill. App. 3d 531, 690 N.E.2d 143 (1998)(Crull).

At her deposition Dr. Herbert stated that at the next office visit afterplaintiff's appointment with Dr. Donald she said to plaintiff, "Dr. Donald calledme and stated that he performed an ultrasound that said that the baby was grosslywithin normal limits. That he did not perform the amniocentesis and that yourwishes were to not alter or not alter the pregnancy" and plaintiff said "yes." Dr. Herbert was also asked: "Q. Did [plaintiff] tell you that she would not havea termination of the pregnancy if it was available to her? A. She stated shewould not have altered the pregnancy."

According to plaintiff, the conversations which Dr. Herbert revealed duringher deposition regarding termination related to plaintiff's intentions afterOctober 30, 1996, when it was legally impossible to electively terminate thepregnancy. Defendants argue that a reasonable interpretation of the testimony isthat it addressed plaintiff's wishes when termination was available, includingJuly 1996. A circuit court's comparison of trial testimony to pretrialdisclosures is reviewed for abuse of discretion and such abuse occurs only if noreasonable person could agree with the position the court takes. See Lawler v.MacDuff, 335 Ill. App. 3d 144, 779 N.E.2d 311 (2002). No violation of formerRule 213 is apparent and the court did not abuse its discretion in allowing thedisputed testimony.⁽⁴⁾

Plaintiff further argues that the circuit court erred in ruling that Dr.Herbert was not impeached. According to plaintiff, Dr. Herbert testifiedinconsistently on adverse and cross-examinations as to which time period herconversation with plaintiff pertained and whether plaintiff made a general orspecific statement.⁽⁵⁾

The circuit court sustained defendants' objection, findingthis testimony not impeaching. No testimony was stricken, however, and the jurywas enabled to consider all of Dr. Herbert's testimony regarding her conversationwith plaintiff. Moreover, plaintiff's counsel thoroughly argued Dr. Herbert'scredibility and the alleged discrepancies in her testimony regarding herconversation with plaintiff during closing argument.

The circuit court has discretion to allow the admission of evidence forattempted impeachment purposes and a reviewing court will not disturb thatdecision absent an abuse of discretion. Schiff, 331 Ill. App. 3d at 656. Thecourt did not abuse its discretion in allowing this evidence to be decided by thejury.

B. Plaintiff next contends that the circuit court erred in allowingdefendants to impeach her on collateral issues regarding her 1991-1993 taxreturns. After plaintiff stated on cross-examination that she had never cared foror had custody of anyone else's children, plaintiff was confronted with her 1991-1993 tax returns on which she had claimed her two "goddaughters" as dependents andindicated that they had lived with her during those years. According toplaintiff, this evidence was irrelevant to any issue in the case and was highlyprejudicial because defendants suggested that she was a tax cheater.

The testimony did not suggest that plaintiff was a tax cheater; rather, itsuggested that plaintiff was untruthful when she testified that she had nevercared for or had custody of anyone else's children, but in fact had claimed hertwo "goddaughters" as dependents on her federal income tax returns in 1991 through1993. The evidence was relevant to the issue of plaintiff's credibility, whichwas a central issue in the case. Plaintiff was given ample opportunity to explainthe apparent inconsistencies and rehabilitate herself.

The circuit court did not abuse its discretion in admitting this evidence.⁽⁶⁾

C. Plaintiff next argues that the circuit court erred in allowing impeachment of plaintiff concerning her views on having a second child.⁽⁷⁾ On cross-examination, plaintiff responded "no" when asked "and it is true, is it notma'am, that after you had Aubria you arrived at the decision that you were notgoing to have any more children; isn't that correct?" Plaintiff was thenconfronted with her deposition testimony that she was not going to have any morechildren. Specifically, plaintiff argues that this testimony was not impeachingbecause it did not discredit her testimony on a material matter.

The evidence was relevant as it demonstrated that Aubria was not the burdenthat plaintiff claimed her to be. One of plaintiff's stated reasons for planningnot to have more children was that Aubria required so much time and effort thatthere would be no time left to raise another child. The circuit court did notabuse its discretion in admitting this evidence.⁽⁸⁾

D. Plaintiff argues that the circuit court abused its discretion when it(1) improperly restricted the testimony of Dr. Eilers and (2) barred Aubria fromappearing in the courtroom.

1. Dr. Eilers initially saw Aubria in March of 2000 and prepared a detailedreport regarding his findings. Dr. Eilers was deposed in September 2000. Aftertrial started, plaintiff's counsel faxed defense counsel a letter from Dr. Eilersmemorializing his findings after a second evaluation of Aubria, which wasconducted in November 2000. This was the first notice defense counsel receivedregarding the second evaluation. The circuit court found this to be a "clearviolation of Supreme Court Rule 213" and barred Dr. Eilers from testifyingregarding the November 2000 evaluation of Aubria.

Plaintiff argues that this restriction on Dr. Eilers' testimony wasimproper, citing Conners v. Poticha, 293 Ill. App. 3d 944, 689 N.E.2d 313 (1997)(Conners). In Conners, an expert offered previously undisclosed additionalreasons and examples to explain his causation theory. The court, applying formerSupreme Court Rule 220, found that the expert's trial testimony represented anelaboration or refinement of his well-established theory on causation and that thepreviously undisclosed reasons and examples were fairly within the scope of factsknown and opinions disclosed before trial.

Plaintiff argues that Dr. Eilers' testimony regarding his most recentevaluation of Aubria was within the scope of the facts and opinions disclosedbefore trial. Dr. Eilers was not going to testify as to any new disabilitiesrevealed by the November 2000 evaluation, nor had that evaluation caused him tochange his previous opinions. The November 2000 evaluation merely confirmed forDr. Eilers that there were no changes and no new needs for Aubria.

The Connors decision is distinguishable. First, and significantly, itinvolved former Supreme Court Rule 220, not former Rule 213. As stated in Crull,"Rule 213 establishes more exacting standards regarding disclosure than didSupreme Court Rule 220 ***, which formerly governed expert witnesses. Trialcourts should be more reluctant under Rule 213 than they were under former Rule220 (1) to permit the parties to deviate from the strict disclosure requirements,or (2) not to impose severe sanctions when such deviations occur. Indeed, webelieve one of the reasons for new Rule 213 was the need to require stricteradherence to disclosure requirements." 294 Ill. App. 3d at 535-539. Second,Conners did not involve a subsequent physical examination that confirmed theexpert's opinions.

Defendant cites Copeland v. Stebco Products Corp., 316 Ill. App. 3d 932, 738N.E.2d 199 (2000) (Copeland), where the appellate court found that the plaintiffviolated former Rule 213 by failing to disclose a test performed by her expertwitness after his deposition in the case was taken. The court rejected theplaintiff's argument that there was no violation of former Rule 213 because theexpert's opinions did not change after the undisclosed tests. According to thecourt, that argument misinterpreted the strict disclosure requirements of formerRule 213.

Former Rule 213 required that, upon written interrogatory, a party mustdisclose the subject matter, conclusions, opinions, bases for the opinions,qualifications, and all reports of a witness who will offer any opinion testimonyand seasonably supplement any previous answers when additional information becomesknown. 177 Ill. 2d R. 213. Former Rule 213 is mandatory and strict complianceis required. Crull, 294 Ill. App. 3d at 537.

Admission of evidence pursuant to former Rule 213 is within the circuitcourt's discretion and the court's ruling will not be reversed absent an abuse ofdiscretion. Crull, 294 Ill. App. 3d at 537. The circuit court did not abuse itsdiscretion in barring Dr. Eilers' testimony regarding his most recent evaluationof Aubria.

2. Citing no authority, plaintiff next argues that the circuit court erredin barring Aubria from appearing in the courtroom during the trial where plaintiffsought to use Aubria as a demonstrative exhibit. Plaintiff admits that she neverdisclosed this intent to defendants prior to trial, but argues that, becauseAubria was not a witness, she did not have to be disclosed under former Rule 213. Plaintiff contends that her ability to present her claim for damages wasprejudiced because she was unable to show the jury the handicaps associated witha Down's Syndrome child.

Admissibility of evidence is within the broad discretion of the circuitcourt and its determination will not be reversed absent an abuse of thatdiscretion. Schuler v. Mid-Central Cardiology, 313 Ill. App. 3d 326, 729 N.E.2d536 (2000). The court did not abuse its discretion in barring the use of Aubriaas a demonstrative exhibit where plaintiff never disclosed her intention to do soprior to trial and, in any event, plaintiff was able to present substantialtestimony regarding Aubria's disabilities. See Seward v. Griffin, 116 Ill. App.3d 749, 452 N.E.2d 558 (1983).

E. Plaintiff argues that the circuit court abused its discretion inrefusing to allow her to present testimony to the jury regarding (1) plaintiff'sfuture lost wages, (2) Aubria's future lost wages,⁽⁹⁾ and (3) extraordinary expensesassociated with rearing Aubria until the age of 21.

With regard to plaintiff's future lost wages, plaintiff sought to introduceevidence of her desire to stop working so that she could stay home and care forAubria full time. She claimed that the salary she would lose if she were to doso would be recoverable as lost wages. Plaintiff cites no authority to supportthis claim. The circuit court excluded the evidence, finding there were no lostwages. Plaintiff admitted on direct examination that she has not quit her job andstill works full time. Moreover, she presented no evidence that she now had toquit her job in order to care for Aubria. There can be no recovery of speculativeor unproved damages. Damages are speculative when uncertainty exists as to thefact of their existence. Goran v. Glieberman, 276 Ill. App. 3d 590, 659 N.E.2d56 (1995).

The circuit court did not err in excluding evidence of plaintiff'sspeculative future lost wages.

Plaintiff further argues that the circuit court erred in refusing to allowher to present evidence of the extraordinary expenses associated with rearingAubria until the age of 21. The record is devoid of any attempt by plaintiff tointroduce such evidence.⁽¹⁰⁾

In Siemieniec, the supreme court found that in a wrongful birth action theparents' damages are limited to "the extraordinary expenses - medical, hospital,institutional, educational and otherwise - which are necessary to properly manageand treat the congenital or genetic disorder." Siemieniec, 117 Ill. 2d at 260. The court recognized that some courts also have permitted recovery of theextraordinary costs incurred after the child has reached the age of majority. Thecourt then noted that "the plaintiffs here seek to recover only thoseextraordinary expenses that will be incurred prior to the child's reaching hismajority." Siemieniec, 117 Ill. 2d at 260. In Illinois the age of majority is18 years old. In re Marriage of Ferraro, 211 Ill. App. 3d 797, 570 N.E.2d 636(1991).

There was no error with regard to evidence of extraordinary expenses ofraising Aubria until the age of 21 where the record reveals that plaintiff neverattempted to present such evidence.

Plaintiff next contends that the circuit court erred in instructing thejury. The circuit court's determination as to the instructions to be given tothe jury will not be disturbed absent an abuse of discretion. Dabros v. Wang,243 Ill. App. 3d 259, 611 N.E.2d 1113 (1993) (Dabros). The test for determiningwhether the court abused its discretion in instructing the jury is whether,considered as a whole, the instructions are sufficiently clear and fairly andaccurately state the applicable law. Dabros, 243 Ill. App. 3d at 267.

Specifically, plaintiff argues that the circuit court erred in givingdefendants' modified burden of proof instruction which states, in pertinent part:"the plaintiff has the burden of proving each of the following propositions:First, that the plaintiff sustained damages; Second, that the plaintiff wouldhave terminated her pregnancy had the defendants advised her of the abnormalgenetic test results in a timely fashion."⁽¹¹⁾ According to plaintiff, thisinstruction was confusing to the jury because it failed to delineate the relevanttime period. Plaintiff further claims that the instruction misstates the lawbecause plaintiff does not have the burden of proving that she would haveterminated her pregnancy had she been advised of the abnormal test results in atimely fashion. As discussed at length in Point I, Siemieniec and McDaniel makeclear that the plaintiff in a wrongful birth case does have the burden of provingthat she would have terminated the pregnancy had she been advised of the abnormaltest results in a timely fashion.

The circuit court did not abuse its discretion in instructing the jury onthe burden of proof.

Lastly, plaintiff urges error in that the circuit court allowed defensecounsel to argue facts not in evidence during closing argument.

Counsel is afforded wide latitude in closing argument. Ellington v.Bilsel, 255 Ill. App. 3d 233, 626 N.E.2d 386 (1993). Counsel may comment on theevidence, as well as any reasonable inference that can be drawn from theevidence. Copeland, 316 Ill. App. 3d at 947. Absent an abuse of discretion, thecircuit court's determination as to the propriety of closing argument will notbe disturbed on review. Becht v. Palac, 317 Ill. App. 3d 1026, 740 N.E.2d 1131(2000).

Plaintiff complains that defense counsel's closing statement that, "Dr.Lazar got up and told you how many times he's testified, where he's testified andhow much he's been compensated for testifying," was not supported by theevidence. There is no record support for plaintiff's conclusion. Indeed, Dr.Richard Lazar stated that he had testified in court generally two to four times per year and he has been called to testify for both plaintiffs and defendants "inthis building." Dr. Lazar estimated that in the past year he earned between$90,000 and $120,000 for time spent either testifying at depositions, reviewingrecords, or testifying at trials. Dr. Lazar further noted that he wascompensated for his time in this case at a rate of $450 per hour for reviewingrecords, court documents, and depositions; $550 per hour for testifying at adeposition; and $650 per hour for trial testimony.

Defense counsel's statements during closing argument were supported by theevidence.

Accordingly, for the reasons set forth above, no bases appear in thisrecord for disturbing the jury verdict in this case and, accordingly, thejudgment of the circuit court of Cook County must be affirmed.

Affirmed.

THEIS, P.J. and KARNEZIS, J., concur.

1. That conservation was reported by Dr. Herbert as follows:

"Q. After [plaintiff] had her consultation with Dr.Donald, a perinatologist, you had a conversation withher, correct?

A. Correct.

Q. She told you that she would not alter the pregnancy,correct?

A. Correct.

Q. That statement was made after October 30th, 1996;isn't that true?

A. True.

Q. [Plaintiff] never said to you, Dr. Herbert, "Youknow, Dr. Herbert, if I would have been told in a timelyfashion that my July 22, 1996 alpha fetoprotein wasabnormal and showed an increased likelihood of Down's[S]yndrome, I wouldn't have terminated the pregnancyanyway," did she?

A. No, she did not.

Q. Her comments to you about not altering the pregnancywere related to that time period, October 1996 andthereafter, isn't that true?

A. I do not know if it was that time period. It was ageneral statement."

2. Other jurisdictions also recognize that to establish proximate cause in awrongful birth action, the parents must establish that but for the physician'snegligence, they would have terminated the pregnancy or avoided conception. SeeKeel v. Banach, 624 So. 2d 1022, 1027 (Ala. 1993) ("[i]n order to establishcausation, it is necessary for the plaintiff to show that, had the defendant notbeen negligent, the plaintiff would have been aware of the possibility that thechild would be seriously defective, and either the child would not have beenconceived or the pregnancy would have been terminated"); Canesi v. Wilson, 730A.2d 805 (N.J. 1999) ("the test of proximate causation is satisfied by showingthat an undisclosed fetal risk was material to a woman in her position; the riskmaterialized, was reasonably foreseeable and not remote in relation to thedoctor's negligence; and, had plaintiff known of that risk, she would haveterminated her pregnancy.").

3. Moreover, as defendants point out, aside from Dr. Herbert's testimonyregarding her conversation with plaintiff, there was other circumstantial evidencethat plaintiff would not have terminated the pregnancy if given the results in atimely fashion. She continued to see Dr. Herbert for the duration of herpregnancy and delivery despite Dr. Herbert's error. It was undisputed thatplaintiff expressed no desire to abort when she learned of the genetic defect.

4. Also without merit is plaintiff's argument that Dr. Herbert's testimonyregarding her conversation with plaintiff was not relevant to the issue ofproximate cause because the only proper inquiry regarding proximate cause waswhether plaintiff was denied the opportunity to make an informed decision whetherto terminate the pregnancy. As discussed at length in Point I, plaintiff wasrequired to plead and prove that had she known of the correct AFP test results ina timely fashion, she would have terminated the pregnancy. Siemieniec, 117 Ill.2d at 235; 256. Therefore, Dr. Herbert's testimony regarding her conversationwith plaintiff was relevant to the issue of proximate cause.

5. On cross-examination, plaintiff's counsel questioned Dr. Herbert, asfollows:

"Q. Well, Doctor, when she said she wouldn't alter thepregnancy, you don't know what time frame she was talkingabout, whether it was October, 1996 or July 1996. Youdon't know, do you?

A. No. I asked her a specific question.

Q. Her comments to you about not altering the pregnancy,you don't know whether her comments to you about notaltering the pregnancy were related to that time period,October, 1996 or thereafter?

Q. It was a general statement, isn't that true, Dr.Herbert?

A. She did not make a statement.

Q. Is that true, Dr. Herbert?

A. No, it was not a general statement."

Plaintiff's counsel then attempted to impeach Dr. Herbert with her previous trialtestimony:

Q. Did you give this answer to this question under oathon Friday afternoon? Question. Her comments to youabout not altering the pregnancy were related to thattime period, October 1996 and thereafter, isn't thattrue? Answer. I do not know if it was that time period. It was a general statement."

6. Without support is plaintiff's further argument that defense counsel'scomment during closing argument that "[s]he claims two nieces as dependents onfederal income tax returns for three years in a row and told the federalgovernment that they were her daughters" was not supported by the evidencebecause there was nothing to show that plaintiff had violated IRS rules. Oncross-examination, plaintiff was shown her 1991-1993 tax returns and she admittedthat for those years she claimed her two "goddaughters" as dependents on herfederal income tax returns and that she listed them as her daughters on thoseforms. As discussed above, this evidence properly was admitted for impeachmentpurposes.

7. Plaintiff gave birth to a second healthy child who was five months old atthe time of trial.

8. Also without merit is plaintiff's argument that defense counsel's commentduring closing argument that he impeached plaintiff with the testimony from herdeposition regarding her intention not to have more children after Aubria, was notsupported by the evidence. Although not raised by either party, the recordreveals that plaintiff has waived this argument by failing to object to thisstatement during closing argument. Diaz v. Kelley, 275 Ill. App. 3d 1058, 1072,657 N.E.2d 657 (1995). Waiver aside, plaintiff argues that this evidence was notimpeaching. As discussed above, the evidence properly was admitted forimpeachment purposes.

9. The record is devoid of any attempt by plaintiff to present evidence ofAubria's future lost wages. Any such evidence would be irrelevant in any case asAubria is not a party to this lawsuit.

10. It appears that defendants' motion in limine on this issue was grantedwithout objection. Although the motion itself does not appear in the record, thefollowing argument on the motion does:

"[Defense counsel]: Okay. No 5 is the law Barb. It's just a motion that we cannot testify as to her needs past age 18.

[Plaintiff's counsel]: That's the law.

THE COURT: Granted. No objection.

[Plaintiff's counsel]: Although I may make an offer of proof." Plaintiff'scounsel reiterated a second time "I probably will want to make an offer of proofoutside the presence of the jury solely to preserve this issue for a potentialappeal." No such offer of proof appears in the record.

11. Plaintiff contends that the circuit court erred in giving defendants'tendered instruction on extraordinary expenses because the instruction failed toadvise the jury that it could consider (1) the extraordinary expenses associatedwith rearing Aubria until the age of 21 and (2) plaintiff's "future lost wages"that would be incurred if plaintiff quit her job to stay home and care for Aubriafull time. As discussed above, such damages were not available to plaintiff inthis case. Therefore, the instruction regarding extraordinary expenses was anappropriate statement of the law.