Opinion filed January 21, 2014 _____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2014

_____________________________________________________________________________

LEE ANN SHARBONO, ) Appeal from the Circuit Court ) of the 13th Judicial Circuit Plaintiff-Appellant, ) La Salle County, Illinois ) v. ) Appeal No. 3-12-0597 ) Circuit No. 06-L-199 ) MARK HILBORN, M.D., ) Honorable ) Joseph P. Hettel, Defendant-Appellee. ) Judge, Presiding.

_____________________________________________________________________________

JUSTICE CARTER delivered the judgment of the court, with opinion. Justices McDade and Schmidt concurred in the judgment and opinion. _____________________________________________________________________________

OPINION

¶1 Plaintiff, Lee Ann Sharbono, filed an action for medical negligence against defendant,

Dr. Mark Hilborn, a board-certified radiologist, alleging that defendant had failed to timely

diagnose her breast cancer. After a trial, the jury found for defendant and against plaintiff.

Plaintiff filed posttrial motions for judgment notwithstanding the verdict, for new trial, and

for rehearing, all of which the trial court denied. Plaintiff appeals, arguing that the trial court

erred in: (1) denying her posttrial motion for judgment notwithstanding the verdict or for new trial; (2) allowing the defense to present a certain PowerPoint presentation as demonstrative

evidence during defendant's testimony at trial; (3) providing the jury with an erroneous

instruction on standard of care; and (4) instructing the jury on mitigation of damages. We

agree with defendant's second assertion and find that the error was reversible error.

Therefore, we reverse the trial court's judgment and remand this case for a new trial.

¶2 FACTS

¶3 In August 2006, plaintiff was diagnosed with breast cancer in her left breast, which had

spread to the nearby lymph nodes under her left arm. Plaintiff underwent extensive

treatment, including a modified radical mastectomy of her left breast, removal of several of

the lymph nodes in her left under arm area, and numerous rounds of chemotherapy and

radiation. Although plaintiff's cancer has been in remission now for several years, she still

suffers from lymphedema in her left arm as a result of the cancer surgery and from the

constant fear that her cancer will return.

¶4 The lawsuit in this case arose out of a diagnosis that was made by defendant in November

2004. Plaintiff, who was 39 years old at the time, initially went to see her primary care

doctor, Dr. Daisy Chacko, a family physician, because she was experiencing fatigue, weight

gain, and aches and pains. Dr. Chacko ordered a screening mammogram. Plaintiff had a

previous mammogram done in July 1998 when she was 32 years old and lived in Texas, and,

although plaintiff had what she described as hard ridges under her breasts, nothing abnormal

was found in the mammogram.

¶5 Defendant was the radiologist who interpreted the images from the tests of plaintiff's left

breast that were conducted in October and November 2004 (the November 2004 tests). In

the initial screening mammogram, defendant observed an abnormality or a lesion in

2 plaintiff's left breast that was not present in the 1998 mammogram and recommended that a

diagnostic mammogram be completed. The diagnostic mammogram also showed a lesion in

plaintiff's left breast, so an ultrasound was ordered. Following an evaluation of the

ultrasound images, defendant ultimately concluded that the lesion in plaintiff's left breast was

benign. No biopsy was ordered or recommended by defendant at that time.

¶6 In 2005, plaintiff went back to see Dr. Chacko, complaining of cramping in her left

breast. Dr. Chacko reassured plaintiff that the 2004 mammogram showed that everything

was fine and that there was nothing to worry about.

¶7 In May 2006, plaintiff returned to her family physician's office, complaining of cramping

in her left breast and pain in her shoulder, and requested that another mammogram be done.

The mammogram was not conducted, however, until August 2006, just prior to plaintiff's

forty-first birthday, because of a miscommunication between the hospital and the doctor's

office.

¶8 Defendant interpreted the August 2006 mammogram and, after evaluating the images,

recommended that plaintiff obtain another ultrasound of her left breast. The ultrasound

indicated that the lesion in plaintiff's left breast was likely malignant, and a biopsy was

ordered. All three procedures--the mammogram, the ultrasound, and the biopsy--were done

on the same day. The biopsy confirmed that plaintiff had breast cancer.

¶9 In December 2007, plaintiff brought the instant action against defendant and the hospital

for which defendant provided services, alleging, primarily, a negligent failure to timely

diagnose her breast cancer. The hospital was later dismissed from the instant action based

upon a settlement with plaintiff. The complaint against defendant was amended several

3 times over the following four years, and the case eventually proceeded to a jury trial in

November 2011.

¶ 10 The evidence presented at the trial can be briefly summarized as follows. Plaintiff

testified about her symptoms and her history of medical tests and procedures leading up to

the cancer diagnosis, including the 1998 mammogram, the 2004 tests, and the 2006 tests;

described the treatment that she received after the diagnosis of cancer was made; and

explained in detail the lasting lymphedema and other complications that she experienced as a

result of having to undergo the level of cancer treatment that was required. As for the results

of the November 2004 tests, plaintiff stated that she was personally told by defendant that

"everything was fine" and that "there was nothing there." In addition, according to plaintiff,

she was not provided with any specific follow-up recommendation by defendant, other than a

form letter that she later received from defendant's office or the hospital, which stated that

her results did not show any suspicious abnormalities and suggested that she start obtaining

annual mammograms at the age of 40, consistent with the recommendations of the American

Cancer Society. Plaintiff indicated that she complied with that recommendation by going to

see her doctor to schedule a mammogram when she was 40 years old. Plaintiff stated further

that had she known that there was an abnormality present in the images of her left breast, she

would have gotten a second opinion.

¶ 11 Dr. Michael Foley, a physician who was board-certified in diagnostic radiology, nuclear

medicine, and interventional radiology, provided testimony for plaintiff on the standard of

care as an expert witness. After describing his background and experience to the jury, Dr.

Foley testified about the four evaluative characteristics that were used by radiologists in

evaluating images of breast lesions: margins, shadowing, axis of orientation, and internal

4 echo consistency. Dr. Foley also described for the jury the Breast Imaging Reporting and

Database System (BI-RADS), a system that was used by radiologists to classify breast

images, and discussed the follow-up treatment that was dictated by each particular

classification. During his testimony, Dr. Foley opined that defendant breached the standard

of care in several respects as to defendant's review of the 2004 images and defendant's

diagnosis in 2004 that the lesion in plaintiff's left breast was benign. Dr. Foley discussed at

length the areas in which defendant breached the standard of care and explained to the jury

the reasons for his opinion in that regard.

¶ 12 Dr. Gillian Maclaine Newstead, a radiologist who specialized in breast imaging and who

was involved in plaintiff's cancer treatment, also testified as an expert witness for plaintiff.

After describing her education and experience to the jury, Dr. Newstead was asked about a

certain portion of the 2004 ultrasound images of plaintiff's left breast. Dr. Newstead stated

that those images showed abnormal breast tissue, a mass, or a lesion. In Dr. Newstead's

opinion, the lesion needed further evaluation, such as additional imaging or a biopsy, to

determine whether it was benign or cancerous. Dr. Newstead acknowledged in her

testimony, however, that she did not review all of the 2004 ultrasound images; that

"abnormal" did not mean "malignant"; and that she had no opinion as to whether defendant

complied with the standard of care, whether plaintiff had cancer in 2004, or whether a cancer

diagnosis in 2004 would have changed plaintiff's prognosis.

¶ 13 Dr. Mark Kelley, a board-certified surgeon who specialized in surgical oncology and who

was asked to review the records in this case, testified for plaintiff as an expert witness on the

issues of causation and damages. After describing his education and experience for the jury,

Dr. Kelley opined, based upon his review of the record, that: (1) plaintiff's lesion in the

5 November 2004 ultrasound should have been classified as at least a BI-RADS 3 (probably

benign), rather than a BI-RADS 2 (benign); (2) plaintiff had cancer in 2004; (3) plaintiff did

not have lymph node involvement in 2004; (4) if plaintiff had been diagnosed with cancer in

2004, her treatment would have been less extensive--plaintiff would have received a

lumpectomy or partial mastectomy, rather than a mastectomy, plaintiff would not have

needed chemotherapy, plaintiff would still have needed radiation therapy but would have had

fewer side effects, plaintiff's prognosis for survival would have been better, both at the time

of diagnosis and at the time of trial, and plaintiff would not have been likely to develop

lymphedema; (5) a modified radical mastectomy, and not a lumpectomy, was the most

appropriate surgical treatment for plaintiff's cancer in 2006, regardless of whether plaintiff

had chemotherapy before or after the surgery; and (6) plaintiff's prognosis for survival at the

point of trial was 90% or greater, since plaintiff had not had a recurrence of cancer within the

first five years. Dr. Kelley explained the reasons for his opinions to the jury. During his

testimony, however, Dr. Kelley acknowledged that it was possible that if plaintiff had

obtained a follow-up mammogram within a year (by November 2005), as she was allegedly

told to do by defendant, plaintiff might not have had lymph node involvement at that time

and that the lesion might still have been small enough for plaintiff to have a lumpectomy,

although chemotherapy would have been required under those circumstances.

¶ 14 Defendant was called to give testimony as an adverse witness in plaintiff's case-in-chief

and, immediately thereafter, to provide testimony in his own case-in-chief. 1 After describing

his background and experience to the jury, defendant testified about his evaluation of

1 Defendant's testimony in his own case-in-chief was presented out of order by agreement

of the parties.

6 plaintiff's 2004 images and his diagnosis in 2004 that the lesion in plaintiff's left breast was

benign. Defendant ultimately opined that he did not breach the standard of care and

explained to the jury the reasons for his conclusion in that regard. As part of that

explanation, defendant described to the jury the four evaluative characteristics and how he

interpreted those characteristics as to plaintiff's lesion. Defendant stated that based upon his

evaluation of plaintiff's 2004 images using the four evaluative characteristics, he classified

plaintiff's breast lesion in 2004 as benign or as a BI-RADS 2. According to defendant, with a

BI-RADS 2 classification, there was a 98% chance that the lesion was benign. Defendant

stated further that after the November 2004 procedures, he told plaintiff that the results were

benign and specifically recommended to plaintiff that she obtain a follow-up mammogram

within a year, which was the appropriate level of follow-up treatment for a BI-RADS 2

diagnosis. Defendant also reported his findings to plaintiff's primary care doctor by letter

and recommended in that letter that plaintiff obtain a follow-up mammogram within a year.

According to defendant, it was the responsibility of plaintiff's primary care doctor to go over

the findings and recommendations with plaintiff. Defendant acknowledged, however, that a

different letter was sent by his office or the hospital to plaintiff personally and that the letter

that was sent to plaintiff did not specifically state that plaintiff was to obtain another

mammogram within a year or indicate that there was still a possibility that the plaintiff's

breast lesion was cancer.

¶ 15 During defendant's direct testimony in his own case-in-chief, the defense sought to use as

demonstrative evidence a PowerPoint presentation that it had prepared. The evidence,

defendant's exhibit No. 18, consisted of several screens of drawings or images that were

taken from a learned treatise, along with copies of plaintiff's own images from the 2004

7 mammograms and ultrasound and from the 2006 ultrasound. The name of the particular

treatise that was used was noted on the screen, allegedly for copyright purposes. Above the

treatise images were headings such as "benign appearing lesions," "benign cyst," and

"infiltrating ductal carcinoma." 2 The exhibit was allegedly being used by the defense to help

the jury understand the complicated medical testimony that was being given by defendant as

to the four characteristics used for evaluation of breast lesions.

¶ 16 Plaintiff objected to the use of the demonstrative exhibit for various reasons and had

claimed earlier that the defense had not properly disclosed the exhibit as required by the

supreme court rules. The defense asserted that it had e-mailed the presentation to plaintiff at

the start of the trial as required by the trial court in its order regarding demonstrative exhibits.

Plaintiff maintained that he had never received the exhibit and was unaware of the exhibit

until it was being tendered during defendant's testimony in the presence of the jury. The trial

court allowed defendant to utilize exhibit No. 18 over plaintiff's objections and instructed the

jury briefly that during the presentation of the exhibit, the defense was going to be doing two

things at once: (1) trying to teach the jury about the types of breast lesion margins; and (2)

transitioning from a known carcinoma in this case to the case itself. When the testimony

resumed, defendant went through the drawings and images with the jury and explained to the

jury what was significant about each image relative to the four characteristics. During the

questioning of defendant, defense counsel was careful to point out when the images in the

exhibit were those from the treatise, rather than plaintiff's own images, and stressed

2 The capitalization has been removed from the quoted headings for the convenience of

the reader.

8 numerous times in the context of the questions that he was asking defendant that the treatise

images were only being used for demonstrative purposes.

¶ 17 Dr. Michael Racenstein, a board-certified radiologist and mammographer, testified for

the defense on the standard of care as an expert witness. After describing his qualifications

and experience for the jury, Dr. Racenstein explained the four evaluative characteristics and

the BI-RADS system. Dr. Racenstein opined that defendant did not breach the standard of

care in this case and explained the reasons for his opinion in that regard to the jury. During

his testimony, Dr. Racenstein acknowledged, however, that he would have classified

plaintiff's lesion in 2004 as a BI-RADS 3 (probably benign), rather than a BI-RADS 2

(benign) lesion, but indicated that the classification to be assigned on the BI-RADS scale was

more of a personal preference, rather than a strict rule.

¶ 18 Defendant's other expert witness, Dr. Bruce Kaden, who was board-certified in internal

medicine, medical oncology, and hematology, gave testimony on the issue of causation.

After describing his qualifications and experience to the jury, Dr. Kaden testified that at the

time of plaintiff's cancer diagnosis in 2006, a different treatment that plaintiff could have

received was to have chemotherapy first and a lumpectomy second, if necessary, after the

size of the lesion had decreased. With that treatment modality, according to Dr. Kaden,

plaintiff could have avoided a mastectomy. Dr. Kaden testified further that from his review

of the case, he believed that plaintiff had breast cancer and lymph node involvement in 2004

and that her treatment, therefore, would have been similar, regardless of whether she was

diagnosed in 2004 or 2006. Thus, according to Dr. Kaden, even if plaintiff had been

diagnosed with cancer in 2004, she still would have undergone essentially the same treatment

and she still would have developed lymphedema. Dr. Kaden acknowledged, however, that

9 there was nothing in the records that indicated that plaintiff had lymph node involvement in

2004 and, that if there was no lymph node involvement when the cancer was discovered,

plaintiff would have had a much smaller risk of developing lymphedema from the treatment

modality that would have been required. Dr. Kaden also acknowledged that a mastectomy

was the treatment modality that was recommended by plaintiff's treatment providers and that

he did not disagree with that treatment recommendation or believe that it was negligent. As

for plaintiff's prognosis, Dr. Kaden opined that plaintiff was completely cured of her cancer,

that the cancer would not return, and that the cancer would not have a negative impact on

plaintiff's life expectancy.

¶ 19 After the evidence had concluded and the attorneys had made their closing arguments, the

trial court instructed the jury on the law. One of the instructions that the trial court gave the

jury was Illinois Pattern Jury Instructions, Civil, No. 105.01 (2005) (hereinafter, IPI Civil

(2005) No. 105.01) on the standard of care in a professional-negligence case. That

instruction had been submitted by the defense. During the jury instruction conference, which

had occurred earlier, plaintiff's attorney had submitted to the trial court the 2006 version of

IPI Civil No. 105.01 (hereinafter, IPI Civil (2006) No. 105.01) and had commented to the

court that the instruction would have to be modified to comply with the Illinois Supreme

Court's decision in Studt v. Sherman Health Systems,

. The trial court

rejected plaintiff's proposed instruction and gave defendant's proposed instruction instead.

The trial court also gave the jury defendant's proposed mitigation of damages instruction

(Illinois Pattern Jury Instructions, Civil, No. 105.08 (2011) (hereinafter, IPI Civil (2011) No.

105.08)) over plaintiff's objection.

10 ¶ 20 At the conclusion of deliberations, the jury returned a general verdict for defendant and

against plaintiff. Plaintiff filed posttrial motions for judgment notwithstanding the verdict,

for a new trial, and for rehearing, all of which the trial court denied. This appeal followed.

¶ 21 ANALYSIS

¶ 22 On appeal, plaintiff raises several issues. Although not necessarily in the order raised by

plaintiff, we will first address plaintiff's argument that the trial court erred in denying her

posttrial motion for judgment notwithstanding the verdict or for a new trial. Plaintiff asserts

that her motion should have been granted as to either one form of relief or the other because

of the strength of the evidence in her favor. 3 In support of that assertion, plaintiff claims

that: (1) both defendant and his attorney admitted that defendant violated the standard of

care, an admission that was ignored by the jury at the trial and also by the trial court in ruling

upon the posttrial motions; (2) all of the experts in this case agreed that plaintiff had an

asymmetrical density in her left breast, that such a density could be evidence of cancer, and

that a biopsy in 2004 would have conclusively determined whether plaintiff had cancer in her

left breast at that time; (3) an asymmetrical density, such as the one plaintiff had been

diagnosed with, should never have been cleared as noncancerous or benign without a biopsy

having been done; and (4) despite defendant's conclusion to the contrary, the evidence in this

case, including defendant's own testimony, indicated that plaintiff's lesion was "probably

benign" or BI-RADS 3, rather than "benign" or BI-RADS 2, and that the appropriate

3 Plaintiff also asserts that her motion for a new trial should have been granted because of

the cumulative effect of certain procedural and evidentiary errors that were allegedly committed

by the trial court during the trial of this case and pertained to such matters as the admission of

evidence and jury instructions. Those errors will be specifically addressed later in this opinion.

11 recommendation, therefore, was for plaintiff to return for more testing in six months, a

recommendation that defendant, by his own admission and the admission of his attorney,

never made. Defendant disagrees with plaintiff's claims and assertions, or the significance of

those assertions, and contends that there was ample evidence to support the jury's verdict.

Thus, defendant argues that the trial court properly denied plaintiff's posttrial motion for

judgment notwithstanding the verdict or for a new trial.

¶ 23 A trial court's ruling on a motion for judgment notwithstanding the verdict is subject to a

de novo standard of review on appeal. Lawlor v. North American Corp. of Illinois,

. A motion for judgment notwithstanding the verdict raises a question of law

and asserts that even when all of the evidence is considered in the light most favorable to the

party opposing the motion, there is a total failure or lack of evidence to prove a necessary

element of the opposing party's case.

The burden on the party seeking a judgment

notwithstanding the verdict is a high one as the motion may be granted only under a very

limited set of circumstances--when all of the evidence, viewed in the light most favorable to

the party opposing the motion, so overwhelmingly favors the movant that no contrary verdict

based on that evidence could ever stand. See id.; Maple v. Gustafson,

(1992). In ruling upon a motion for judgment notwithstanding the verdict, the court does not

weigh the evidence or concern itself with the credibility of the witnesses and must consider

the evidence, and any reasonable inferences therefrom, in the light most favorable to the

opposing party. Maple,

. A court has no right to enter a judgment

notwithstanding the verdict if the evidence demonstrates a substantial factual dispute or if the

outcome of the case depends upon an assessment of credibility or a determination regarding

conflicting evidence.

.

12 ¶ 24 In ruling upon a motion for new trial, on the other hand, the trial court will weigh the

evidence and will set aside the jury's verdict and order a new trial only if the verdict is

against the manifest weight of the evidence. Lawlor,

. A verdict is

against the manifest weight of the evidence only if it is clear from the record that the jury

should have reached the opposite conclusion or if the jury's findings are unreasonable,

arbitrary, and not based upon any of the evidence presented.

On appeal, the trial court's

ruling on a motion for new trial will not be reversed unless the trial court committed an abuse

of discretion in making its ruling.

In determining whether an abuse of discretion has

occurred, the reviewing court should consider whether the jury's verdict was supported by the

evidence and whether the losing party was denied a fair trial. Maple,

.

¶ 25 Having reviewed the evidence presented at the trial in the present case, we find that the

trial court properly denied plaintiff's posttrial motion for judgment notwithstanding the

verdict or for a new trial. Contrary to plaintiff's claim on appeal, we do not read this record

as containing any admissions by defendant or his attorneys that defendant breached the

standard of care in either his interpretation of plaintiff's 2004 images or in his 2004 diagnosis

that the lesion in plaintiff's left breast was benign. In fact, defendant and one of his expert

witnesses both specifically testified that defendant did not breach the standard of care. In

addition, we find no support in the record for plaintiff's claim that an asymmetrical density

should never be ruled benign without a biopsy having been done. No expert witness testified

to that effect and, as with the previous claim, defendant and one of his expert witnesses

specifically testified that a biopsy was not required in 2004 under the facts of this case and

the applicable standard of care. Nor do we agree with plaintiff's characterization of the

testimony regarding the BI-RADS classification of plaintiff's lesion. The testimony to which

13 plaintiff refers appears to be a description in general terms as to whether the observed

characteristic was an indication of a benign lesion or a malignant lesion and not a more

specific description as to the appropriate BI-RADS classification. Indeed, it was very clear

from defendant's testimony that when it was time to put all of the diagnostic information

together and form a conclusion, defendant concluded, using his expertise, that plaintiff's

lesion was benign or BI-RADS 2. The fact that defendant's expert witness, Dr. Racenstein,

testified that he would have classified plaintiff's lesion in 2004 as a BI-RADS 3 lesion does

not alter our conclusion but, rather, was merely another piece of information for the jury to

consider.

¶ 26 Ultimately, this case involved a classic battle of expert witness testimony. The testimony

of plaintiff's expert witnesses supported plaintiff's side of the case and the testimony of

defendant and his expert witnesses supported defendant's side of the case. It was the jury's

role to determine whether each expert witness was credible and how much weight to give to

each expert's testimony. See Maple,

; Walski v. Tiesenga,

(1978). Under the circumstances present in the instant case, plaintiff's motion for

judgment notwithstanding the verdict or for a new trial was properly denied. See Lawlor,

; Maple,

.

¶ 27 Next, we will address plaintiff's claim regarding defendant's use of the PowerPoint

presentation, defendant's Exhibit No. 18. Plaintiff argues that the trial court committed

reversible error by allowing the defense to present Exhibit No. 18 as demonstrative evidence

during defendant's testimony at trial. Plaintiff asserts that the use of the exhibit was improper

because: (1) the necessary foundation for the exhibit, which contained images from a learned

treatise, was never established; (2) such an exhibit could only be presented in cross-

14 examination, not in direct examination, as it was in the present case; (3) the exhibit was not

timely disclosed to plaintiff as required by the supreme court rules on discovery; and (4) the

exhibit was not actually being used by the defense as demonstrative evidence but, rather, was

being used by the defense to try to corroborate defendant's medical opinion that he correctly

diagnosed plaintiff's lesion as benign from plaintiff's imaging tests. Plaintiff asserts further

that the erroneous admission of exhibit No. 18 was highly prejudicial in this case and that it

warrants a reversal of the trial court's judgment on the jury verdict and a remand for new

trial. Defendant disagrees with plaintiff's various assertions and contends that the trial court

properly exercised its discretion in ruling that exhibit No. 18 was admissible as

demonstrative evidence. In the alternative, defendant contends that even if the trial court's

ruling was incorrect, reversal in this case is not warranted because plaintiff cannot show that

the alleged error caused substantial prejudice that affected the outcome of the trial.

Defendant argues, therefore, that the trial court's judgment should be affirmed.

¶ 28 A trial court's ruling on the admissibility of evidence, including demonstrative evidence,

will not be reversed on appeal absent an abuse of discretion. See In re Leona W.,

(2008); Schuler v. Mid Central Cardiology,

(2000). The

threshold for finding an abuse of discretion is a high one and will not be overcome unless it

can be said that the trial court's ruling was arbitrary, fanciful, or unreasonable, or that no

reasonable person would have taken the view adopted by the trial court. See Blum v. Koster,

(2009); Leona W.,

. If a trial court commits an abuse of

discretion in the admission of evidence, a new trial should be ordered only if the trial court's

ruling appears to have caused substantial prejudice affecting the outcome of the trial. See

Leona W.,

; Troyan v. Reyes,

(2006).

15 ¶ 29 Physical objects that are admitted into evidence or used at trial (physical evidence) fall

into one of two categories, real evidence or demonstrative evidence. Smith v. Ohio Oil Co.,

(1956); see Ill. R. Evid. 401 (eff. Jan. 1, 2011). A physical object that

has a direct part in the incident at issue such that it has probative value in and of itself is

considered to be real evidence. Smith,

; Michael H. Graham,

Graham's Handbook of Illinois Evidence § 401.2, at 159 (10th ed. 2010). On the other hand,

a physical object that does not have a direct part in the incident at issue and is only being

used to help explain or illustrate to the trier of fact the verbal testimony of a witness or other

evidence is considered to be demonstrative evidence. Id. Demonstrative evidence has no

probative value in and of itself and is merely admitted or used as a visual aid to the trier of

fact. Id.; Cisarik v. Palos Community Hospital,

(1991). The great

value of demonstrative evidence "lies in the human factor of understanding better what is

seen than what is heard." Smith,

. The use of demonstrative evidence,

therefore, is looked upon favorably by the courts because it allows the trier of fact to have the

best possible understanding of the matters before it.

; Schuler,

. However, the same human factor that makes demonstrative evidence valuable--that

people learn and understand better what they see, rather than what they hear--also makes it

possible for parties to abuse the use of demonstrative evidence by giving a dramatic effect or

undue or misleading emphasis to some issue, at the expense of others. Smith,

. Thus, in ruling upon the admissibility of demonstrative evidence, the trial court must

be ever watchful to prevent or eliminate that abuse. See

.

¶ 30 The primary considerations in determining whether demonstrative evidence is admissible

or may be used at trial are relevancy and fairness. See Ill. R. Evid. 401, 402, 403 (eff. Jan. 1,

16 2011); Schuler,

; People ex rel. Sherman v. Cryns,

(2003); Smith,

. As for relevancy, for demonstrative evidence

to be admissible, it must actually be used to illustrate or explain the verbal testimony of a

witness as to a matter that is relevant in the case in question. See id; Graham, supra § 401.3,

at 160. With regard to fairness, even if the relevancy test has been satisfied, demonstrative

evidence may still be excluded by the trial court if "its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,

or by considerations of undue delay, waste of time, or needless presentation of cumulative

evidence." See Ill. R. Evid. 403 (eff. Jan. 1, 2011); Sherman,

; Cisarik,

.

¶ 31 In addition to the above, before demonstrative evidence may be presented or admitted at

trial, a proper foundation for the use of the evidence must be established. See Sherman,

; Cisarik,

. If the demonstrative evidence that the proponent

seeks to admit is a filmed or photographed image, such as in the present case, to establish the

necessary foundation, the proponent must have a witness with personal knowledge of the

filmed or photographed object testify that the film or image is an accurate portrayal of what it

purports to show, unless, of course, the parties have made a stipulation to that effect. See

Absent such a foundation, the demonstrative evidence may not be presented or admitted at

trial. See Sherman,

.

¶ 32 Having reviewed the record in the present case, we do not believe that defendant's exhibit

No. 18 was properly classified as demonstrative evidence. The use of the exhibit at trial went

well beyond merely trying to teach or educate the jury about the four evaluative

characteristics that radiologists use to evaluate breast lesions, a matter about which three of

17 the expert witnesses in this case testified. Rather, it appears from the record that the treatise

images and diagrams contained in exhibit No. 18 were used to help show the basis of

defendant's own medical opinion in this case and to support his diagnosis in 2004 that

plaintiff's lesion was benign. Our opinion in that regard is best illustrated by certain screens

of the PowerPoint presentation which contained main or side headings referencing the word,

"benign," such as "benign appearing lesions," "benign shadowing," or "benign appearing

echoes," and on the same screens showed images from plaintiff's November 2004 tests. We

see no reason why plaintiff's 2004 images were placed under or to the side of such headings,

other than to try to support, and show the bases for, defendant's medical opinion that the

2004 images were correctly interpreted as benign.

¶ 33 The use of such an exhibit for that purpose is permissible under Wilson v. Clark,

(1981), and Illinois Rule of Evidence 703 (eff. Jan. 1, 2011), if a proper foundation

has been established and if there has been proper disclosure. 4 In this case, however, it was

never established that the learned treatise, from which the diagrams and images were taken,

was a reliable authority as required under Wilson v. Clark and Illinois Rule of Evidence 703.

See Wilson,

(an expert may testify about facts or data upon which he or

she has based his opinion if those facts or data are of the type reasonably relied upon by

experts in the particular field in forming opinions on the subject, even if those facts or data

are not admissible in evidence); Ill. R. Evid. 703 (eff. Jan. 1, 2011); Graham, supra § 703.1,

4 Although plaintiff asserts that defendant could not properly bring out in direct

examination the bases of defendant's medical opinion, the rulings of our supreme court would

seem to indicate to the contrary, albeit in cases that did not involve the use of a learned treatise.

See People v. Anderson,

(1986); People v. Pasch,

(1992).

18 at 677. Because a proper foundation was not established as provided for in Wilson v. Clark,

it was error for the trial court to allow the defense to use exhibit No. 18 to show the bases of

defendant's opinion that plaintiff's lesion was benign and not cancerous in 2004. See

¶ 34 Furthermore, the use of the diagrams and the conclusory images in exhibit No. 18 to

show the basis of defendant's medical opinion was highly prejudicial in this case because it

went right to the heart of the malpractice claim--that defendant failed to correctly interpret

plaintiff's 2004 breast lesion images as malignant--and because it was not sufficiently

disclosed in a timely manner as required under Illinois Supreme Court Rule 213 (eff. Jan. 1,

2007) and Rule 214 (eff. Jan. 1, 1996). When our supreme court adopted Federal Rules of

Evidence 703 and 705 (Fed. R. Evid. 703, 705) in Wilson v. Clark, which are now

incorporated into Illinois Rules of Evidence 703 and 705 (eff. Jan. 1, 2011), the supreme

court noted that the burden was on the adverse party to elicit in cross-examination the facts

underlying the expert's opinion. Wilson,

. The supreme court noted further

that doing so did not place an undue burden on the cross-examining party in light of our

state's extensive pretrial discovery procedure.

Nevertheless, with the burden upon the

adverse party during cross-examination to elicit facts underlying the expert's opinion, it is a

matter of fundamental fairness that the adverse party be given proper and timely disclosure

so that it may have the opportunity to prepare for cross-examination. The importance of that

requirement in cases such as this cannot be overemphasized. See Leonardi v. Loyola

University of Chicago,

(1995) (cross-examination is the principal

safeguard against errant expert testimony); People v. Safford,

(2009) (describing cross-examination as the "truth-seeking engine"); 5 Wigmore, Evidence

§ 1367, at 32-33 (Chadbourn rev. ed. 1974) (stating that cross-examination is "beyond any

19 doubt the greatest legal engine ever invented for the discovery of truth" and recognizing "its

efficacy as a fundamental test of truth").

¶ 35 On a number of occasions in this case, defendant, testifying as an expert, utilized the

diagrams and images from the learned treatise and compared them to the plaintiff's images.

Defendant described the images during his testimony in a conclusive manner, such as a

"biopsy-proven simple cyst" (exhibit No. 18-C), a "biopsy-proven one [carcinoma] from

another case" (exhibit No. 18-E), a "benign cyst" (exhibits No. 18-L and 18-P), a

"fibroadenoma" (exhibits No. 18-Q and 18-R), and a "biopsy-proven infiltrating ductal

carcinoma" (exhibit No. 18-U). Without timely disclosure, plaintiff was completely deprived

of her ability to effectively cross-examine defendant as to such matters as the extent of his

reliance on the treatise, whether the treatise was truly a reliable authority, whether the

specific images and diagrams in question were reliable, and whether it was reasonable for

defendant to rely on the treatise in this case. It might have been possible that vigorous

adversarial cross-examination in this case may have impeached the importance or reliability

of the treatise, its author, or the specific images and diagrams in question. However, it is not

possible to know the extent of cross-examination because the lack of timely disclosure in this

case deprived plaintiff of the opportunity to prepare for cross-examination and essentially

deprived plaintiff of the right to cross-examine the basis of defendant's medical opinion.

Given these circumstances, reversal of the trial court's judgment and remand for a new trial

are required. See Leona W.,

; Troyan,

.

¶ 36 In reaching that conclusion, we must note that even if defense exhibit No. 18 was

properly classified as demonstrative, we would still have to find that the use of the treatise

images from the exhibit was erroneous because defendant failed to present an adequate

20 foundation. See Sherman,

; Cisarik,

. At no time in

this case did defendant or any other witness testify from personal knowledge that the sample

images or diagrams contained in exhibit No. 18 from the treatise accurately portrayed the

diagnostic condition (benign or cancerous) that they purported to show. Thus, exhibit No. 18

could not be properly admitted or used as a demonstrative exhibit under any circumstances.

See

¶ 37 Having determined that reversal of the trial court's judgment and remand for new trial is

warranted, we need only address the two remaining issues regarding jury instructions to the

extent necessary to prevent any possible error from re-occurring on retrial. In the first of

those issues, plaintiff argues that the trial court committed reversible, or, at the very least,

prejudicial error when it refused plaintiff's proposed instruction on the standard of care,

which was based upon IPI Civil (2006) No. 105.01, and which plaintiff intended to modify to

comply with the supreme court's ruling in Studt, after the matter had been argued before the

court. The trial court rejected plaintiff's proposed instruction and gave the defendant's

tendered version of IPI Civil No. 105.01, which was based upon the 2005 version of the

instruction. We need not address the merits of plaintiff's claim on this issue because IPI Civil

No. 105.01 has since been modified to comply with the supreme court's ruling in Studt. See

IPI Civil (2012) No. 105.01, Comment; Perkey v. Portes Jarol,

. We presume that the newest version of IPI Civil No. 105.01 will be given to the jury

upon retrial.

¶ 38 As her second jury instruction issue on appeal, plaintiff argues that the trial court

committed reversible, or, at the very least, prejudicial error when it instructed the jury on

mitigation of damages (IPI Civil (2011) No. 105.08) over plaintiff's objection. Plaintiff

21 asserts that such an instruction was improper and unwarranted because it was not supported

by sufficient evidence in the record and that she was prejudiced by the improper instruction

because it caused the jury to focus its attention onto plaintiff's own conduct--an issue that

was not relevant. Defendant argues that the trial court's ruling on the mitigation of damages

instruction was supported by the evidence, was proper, and should be upheld. In the

alternative, defendant asserts that even if the trial court's decision to allow the instruction was

erroneous, reversible error did not occur because the instruction did not result in serious

prejudice to plaintiff since the jury never reached the issue of damages.

¶ 39 For a particular jury instruction to be warranted, it must be supported by some evidence

in the record. Heastie v. Roberts,

(2007); Schuler,

. The determination as to which issues are raised by the evidence presented and which

jury instructions should be given rests in the sound discretion of the trial court and its

decisions in that regard will not be reversed on appeal absent an abuse of discretion. Id.;

Schultz v. Northeast Illinois Regional Commuter R.R. Corp.,

(2002);

Studt,

. The standard for determining whether an abuse of discretion

has occurred in the giving of jury instructions is whether the jury instructions, taken as a

whole, were sufficiently clear so as not to mislead the jury and whether the instructions fairly

and correctly stated the law. Dillon v. Evanston Hospital,

(2002). Thus,

reversal based upon the giving of a faulty jury instruction is warranted only if the faulty

instruction clearly misled the jury and resulted in serious prejudice to the opposing party.

Schultz,

.

¶ 40 After reviewing the record in the present case, we find that the mitigation of damages

instruction was supported by the evidence and was, therefore, properly given. See Heastie,

22

; Schuler,

. Although evidence was presented to the

contrary, defendant clearly testified that after the November 2004 tests, he told plaintiff to

obtain a follow-up mammogram within a year. That same recommendation was contained in

the letter that defendant sent to plaintiff's primary care physician after the November 2004

tests were completed. If the jury found that defendant's testimony in that regard was

credible, it could have reasonably concluded that plaintiff had failed to follow defendant's

recommendation and that plaintiff's failure in that regard may have delayed the discovery of

her cancer and her treatment after defendant's alleged medical negligence had already

occurred. Because defendant's mitigation of damages instruction was supported by at least

some evidence, the trial court did not abuse its discretion in giving the instruction over

plaintiff's objection. See Heastie,

; Schuler,

; Fisher

v. Slager,

(1990) (mitigation of damages instruction was supported

by some evidence and was appropriately given).

¶ 41 CONCLUSION

¶ 42 For the foregoing reasons, we reverse the judgment of the circuit court of La Salle

County and remand this case for a new trial.

¶ 43 Reversed and remanded.

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