August 16, 2001

JUSTICE RAPP delivered the opinion of the court:

Defendants Ronald Weidner (Ronald Weidner or Mr. Weidner) and RonaldWeidner, Inc. (collectively Weidner), appeal from the judgment in favor ofplaintiffs, George and June Hiscott, following a jury trial. It is thecontention of Weidner that (1) the trial court erred in admitting the opiniontestimony of a reconstruction expert; (2) the trial court erred in excludingcircumstantial evidence that defendant Ross Peters was using his cellulartelephone immediately prior to the accident; (3) the trial court erred insubmitting itemized verdict forms allowing the jury to return separate damagesfor emotional distress; (4) the trial court erred in permitting the Hiscotts toamend their pleadings after judgment; (5) the jury's allocation of fault betweenthe defendants was against the manifest weight of the evidence; and (6) thejury's award for future pain and suffering to June Hiscott was against themanifest weight of the evidence.

I. FACTS

The Hiscotts originally filed this action for personal injury in thecircuit court of Cook County on June 17, 1998. On August 5, 1998, the case wastransferred to Lake County. Peters also filed an action against Weidner seekingto recover for his own bodily injuries; that case was consolidated with thisaction but voluntarily dismissed shortly before trial.

On November 19, 1998, the Hiscotts filed their first amended complaint. Counts I and II alleged negligence against Weidner. Counts III and IV allegednegligence against Peters. The Hiscotts sought damages for their injuries,including emotional trauma.

Peters and Weidner filed contribution counterclaims against each other. Prior to trial, the trial court partially granted Weidner's motion in liminerequesting the trial court to bar portions of the accident reconstruction opiniontestimony of Robert Seyfried. The trial court barred any opinion testimony fromSeyfried regarding the path of travel of Peters's vehicle and whether his vehiclewent into a "yaw" or side-slip without a sufficient foundation. The trial courtreserved its ruling on part of Peters's motion in limine as to the use of hiscellular telephone at the time of the accident.

Trial began on March 20, 2000. Ronald Weidner testified as an adversewitness. On June 17, 1997, at approximately 1:20 p.m., Mr. Weidner was drivinga red Dodge pickup truck northwest on Route 60/83. He had perceived a problemwith the braking of the truck from the time he purchased it eight months earlier. According to Mr. Weidner, when he would slam on the brakes the vehicle pulledleft or right. He took the vehicle to be repaired six or seven times, but hestill thought there was a problem with the braking.

According to Mr. Weidner, the weather was clear and the roads were dry onthe day of the accident, although the roads were "oily" from all the traffic. He was traveling northwest on Route 60/83, following a white Cadillac. TheCadillac was approximately 60 feet in front of him. The Cadillac then turned tothe right, partially onto the shoulder, and braked, simultaneously. At thattime, Mr. Weidner saw a large white van stopped in the northwest lane of travel. He saw a Lincoln about 220 feet ahead of him in the opposite lane of travel. When he realized that he was going to hit the van, Mr. Weidner decided to hit therear left side of the van with the front passenger side of his truck. When hehit the brakes, his truck started to skid forward to the left. The impact pushedthe front end of his truck about 12 to 18 inches over the center line. Mr.Weidner testified that a skid mark left by his truck showed it curling into theopposite lane of travel.

According to Mr. Weidner, the Lincoln was approximately 70 feet away whenthe impact occurred. He saw the Lincoln go past him, hit its brakes, and turnonto the gravel. The Lincoln then moved across the center line and hit theHiscotts' vehicle head-on, completely within the northwest lane of travel.

Ross Peters testified that on June 17, 1997, at approximately 1:20 p.m.,he was traveling south on Route 60/83 in his blue 1994 Lincoln. There was notraffic in front of him for at least 13 or 14 car lengths, when a red trucksuddenly appeared before him, covering most of his lane of travel. Peters thenturned his car to the right as hard as he could and hit the gravel shoulder. Peters did not recall any other events of the accident until after the impact. After the accident, Mr. Weidner told Peters that he hit the guy in front of him,went into Peters's lane of traffic, and that he was sorry.

On cross-examination, Peters could not recall if he applied his brakes whenhe saw the red truck entering his lane of traffic. Peters denied using acellular telephone at the time of the accident, and the jury was instructed todisregard this testimony. Weidner's counsel made an offer of proof of CellularOne billing records to show that Peters used his cellular telephone for oneminute between 1:14 p.m. and 1:15 p.m. and that he made a two-minute call to thesame telephone number at 1:29 p.m. The trial court barred this evidence, findingthat there was no direct evidence that Peters was using his cellular telephoneat the time the accident occurred.

Peters's counsel requested the trial court to reconsider its ruling onWeidner's motion in limine concerning the opinion testimony of accidentreconstructionist Robert Seyfried. The trial court reiterated that it wasstanding by its prior ruling.

Traffic accident reconstructionist Robert Seyfried then testified that hereviewed the traffic accident report, photographs of the accident scene, and thevehicles. Seyfried also reviewed the depositions of Mr. Weidner, Deputy AllanBurns, Charles Behrendt, and Peters. Seyfried visited the scene of the accidenton October 11, 1999, more than two years after the accident, to become familiarwith it. From the police report, he reviewed a number of measurements of skidmarks left by the Weidner truck. He also reviewed a gouge mark in the pavementleft by the impact of the Peters and Hiscott vehicles. According to Seyfried,Weidner's truck left 69 feet of skid marks. Seyfried concluded that 195 feet wasrequired by Peters to make the maneuver he did at the time of the accident andthat the total maneuver took a little more than three seconds. According toSeyfried, Peters's maneuvers were limited by friction between the roadway andshoulder surfaces and the tires of his vehicle. Seyfried stated that 176 feetwould have been the minimum distance of making the steering maneuver. Seyfriedopined that Peters had little less than a second to react to the Weidner truckcoming into his lane and that Peters was reacting to an emergency situation. According to Seyfried, it would have taken approximately two-thirds of a secondfor Peters, traveling at 40 miles per hour, to steer his vehicle away from theWeidner truck and move onto the gravel shoulder.

Seyfried stated that once Peters was on the gravel shoulder he had to reactto being on the gravel and steer back left to avoid going off the outside edgeof the shoulder. In order to get back onto the road, Peters steered back to theleft very quickly. In his opinion, this would likely have caused the vehicle to"yaw," or slide partially sideways.

On cross-examination, Seyfried admitted that there were no "yaw" marksnoted or measured by the police or noted on the police report, nor did the policereport indicate where Peters went onto the shoulder or where he returned to theroad. Additionally, Seyfried admitted that there was no physical evidence ofPeters braking his vehicle. Seyfried also admitted that it was pure speculationas to when Peters first saw Weidner's truck, how long it took Peters to react,where Peters left the roadway, or where Peters returned to the roadway.

Dr. Thomas Baier testified via video evidence deposition concerning theinjuries sustained by the Hiscotts. Dr. Baier did not testify concerning anyemotional distress suffered by the Hiscotts.

Lake County sheriff's deputy Allan Burns testified that he investigated theaccident. The call came in at 1:20 p.m., and Burns was dispatched at 1:21 p.m. According to Burns, it was a dry, sunny day. The roadway was not oily or slick. Ronald Weidner told Burns that he was westbound on Route 60/83; that there wasa white Cadillac in front of him; that the Cadillac had swerved to the right,onto the shoulder, to go around the vehicles; that he did not realize that theother traffic was stopped; and that he was unable to stop before making contactwith the white van. Peters told Burns that he saw the accident with the redtruck ahead and that he swerved to the right onto the gravel shoulder, lostcontrol of his vehicle, came across the eastbound lane of traffic, went into thewestbound lane of traffic, and struck the white vehicle head-on.

According to Burns, each lane was approximately 12 feet wide, withshoulders approximately 7