author: JUSTICE LEWIS

text:
    JOHN KOCHAN et al., Plaintiffs-Appellees, v. OWENS-CORNING FIBERGLASS CORPORATION, Defendant-Appellant.
    Fifth District
    No. 5 — 91—0191
    Opinion filed February 23, 1993.

      Raymond R. Fournie and Thomas B. Weaver, both of Armstrong, Teasdale, Schlafly & Davis, of St. Louis, Missouri, for appellant.
    Brent M. Rosenthal, Diane M. Andrew, Steven D. Wolens, and Brian D. Weinstein, all of Baron & Budd, P.C., of Dallas, Texas, for appellees.
   JUSTICE LEWIS

delivered the opinion of the court:

These five first-named plaintiffs (and the wives of four of them) and four others brought actions against defendant, Owens-Corning Fiberglass (OCF), and several other defendants to recover damages for personal injury resulting from plaintiffs’ exposure to asbestos-containing products. All defendants, except OCF, settled with plaintiffs just after the trial began. The jury returned verdicts in favor of plaintiffs named in this appeal and against the other four. Defendant appealed.

Defendant makes 10 arguments on appeal: (1) the trial court erred by precluding defendant from introducing evidence that plaintiffs were exposed to asbestos-containing products manufactured by other companies not present at trial; (2) the trial court erred by denying its motion for change of venue; (3) the trial court erred in submitting the issue of punitive damages to the jury; (4) the punitive damage awards were excessive; (5) the punitive damage awards violated defendant’s procedural and substantive due process rights; (6) the trial court erred by allowing plaintiffs’ expert to read into evidence the underlying data and information on which he based his opinion; (7) the trial court erred in permitting plaintiffs’ counsel to read into evidence only a portion of an answer given by Herman Davis at his deposition; (8) the trial court erred by admitting an exhibit which referred to a prior unrelated settlement; (9) plaintiffs Reneau, Granger and Davis failed to offer sufficient evidence to allow recovery for fear of cancer; and (10) the judgment should be reduced to reflect the amount of settlements paid by settling defendants. We affirm in part and remand in part.

OCF bought the Kaylo Division of Owens-Illinois Glass Company in 1958 and began manufacturing Kaylo, an industrial heat-insulation product. Asbestos made up 15% of the contents of Kaylo. Defendant maintained that it began putting warning labels on Kaylo in 1966, after the development of information that asbestos might pose risks to end-users of products containing small percentages of asbestos. Defendant ceased making Kaylo in 1972.

Plaintiffs presented evidence that defendant had information regarding the dangers of asbestos through the 1940’s and 1950’s and knew by 1963 that it was dangerous to a person’s health. (It is not clear from the evidence why defendant received this information as to the dangers of asbestos in the 1940’s and 1950’s prior to its purchase of the Kaylo Division in 1958, but there was no dispute that defendant had such information.) Plaintiffs also presented evidence that defendant did not begin putting warning labels on Kaylo until 1970.

Four of the five plaintiffs were exposed to Kaylo while working at the Standard Oil/Amoco plant in Wood River, Illinois. One plaintiff was exposed to Kaylo at the General Steel plant in Granite City, Illinois.

Clarence Granger worked at the Amoco plant from 1942 to 1974 as a laborer and then as an insulator removing and replacing pipe covering and insulation. He testified that he worked with Kaylo many times from the 1940’s through the 1970’s. He cut Kaylo a lot of times, and it was dusty when he sawed it. He never saw warnings on Kaylo indicating that it was dangerous to his health or that he should take precautions when using it.

John Kochan worked a variety of jobs at Amoco between 1945 and 1981, and he worked around Kaylo on a frequent basis in the 1960’s. He cleaned up asbestos when he was a laborer. When he worked as a machinist, he sometimes worked on a pump while the insulators were covering a new line overhead. As the insulators cut the insulation, dust came down so thickly that it looked like snow, causing Kochan to don goggles to keep it out of his eyes. He also delivered Kaylo as a truck driver. He never saw any warnings on Kaylo.

Harry Reneau worked at Amoco from 1945 to 1982 primarily as a welder, but briefly as a laborer and a pipefitter’s helper. As a welder, he removed insulation from pipes many times. He also worked around insulators who were cutting and putting on insulation. He saw many boxes of Kaylo at the plant, adding that it was “the largest supplier *** in the refinery.”

Herman Davis worked at Amoco as a crane operator from 1944 through 1984. He worked around insulators who used Kaylo. Dust would fly everywhere when the insulators cut the pipe covering. In the summer months, the fan in the cab of the crane would suck the dust through the cab in such a volume that he was covered. During the early 1960’s through the late 1970’s, he used the bucket of the crane to remove insulation. Dust would also blow all over him when he cleaned out the ash pits that were filled with insulation. He testified that he worked around Kaylo all the years he was at the plant. He even recalled seeing boxes of Kaylo in the plant as late as 1983. There were no warnings on the boxes at any time indicating that they contained asbestos.

Clarence Woodward was exposed to Kaylo while working at the General Steel plant in Granite City, Illinois, from 1941 through 1971. As a laborer, he cleaned up after the insulators, picking up asbestos or whatever was on the floor. Although he could not personally identify the brand names of the insulation materials, a co-worker, Victor Welch, testified that he worked with Kaylo around Woodward in the 1960’s, that Kaylo was all over the General Steel plant, and that Kaylo was used in 10 of the buildings where Woodward worked. Kaylo was the insulation used the most by insulators at General Steel.

Asbestosis, a type of pneumoconiosis, which is a lung condition resulting from inhalation of certain dusts, is caused by inhalation of asbestos dust. Inhaled asbestos particles are deposited in the lung tissue, and with sufficient exposure, and after an extended latency period, the asbestos particles may result in scarring and possible impairment in the functioning of the lung. Asbestosis is progressive and incurable.

Plaintiffs’ experts testified that the development of an asbestos-related condition is a cumulative process and that each dose contributes to the risk of asbestosis. Dr. Miles Yanta testified that each exposure to asbestos was a substantial contributing factor in causing asbestosis. He also acknowledged on cross-examination that there must also be a certain amount of exposure before a person will contract asbestosis, but he did not know what that threshold exposure was.

Both parties presented expert medical testimony regarding the medical condition of each plaintiff. Although defendant offered contradictory testimony, each plaintiff presented testimony that he suffered from asbestosis. Defendant does not raise any issue regarding the injuries suffered; therefore, we will discuss only that portion of the extensive medical testimony necessary to resolve the issues presented. .

Plaintiffs offered evidence of defendant’s knowledge that its asbestos-containing products were potentially hazardous to end-users. Over defendant’s objection, Dr. Joseph Wagoner, an epidemiologist, testified that it was established that exposure to asbestos was linked to asbestosis by 1930 and linked to cancer by 1955. Dr. Wagoner cited various articles and was allowed to testify as to the substance of each article. He also testified to several other articles which should have put defendant on notice of the hazards of asbestos. Plaintiffs also presented several intraoffice memoranda, which we will summarize later in this opinion, which indicated that defendant became aware of the dangers of asbestos in the 1940’s.

The jury returned verdicts for these five plaintiffs, awarding $1 million in punitive damages to each of them, plus damages for disability and past and future pain and suffering.

I. EVIDENCE OF OTHER MANUFACTURERS’ ASBESTOS PRODUCTS

Defendant argues that the trial court erred in excluding evidence that plaintiffs had been exposed to other asbestos-containing products manufactured or distributed by companies other than OCF. We disagree.

In 1986, there were thousands of asbestos cases filed in Madison County, to which Judge Chapman was assigned to oversee. Judge Chapman entered a blanket order in 1988 ruling on various motions in limine. Relying on Lipke v. Celotex Corp. (1987), 153 Ill. App. 3d 498, 505 N.E.2d 1213, appeal dismissed (1989), 536 N.E.2d 71, he granted the plaintiffs’ motion in limine to exclude any evidence that plaintiffs had been exposed to asbestos-containing products manufactured by other parties not parties to the case at the time of the trial. The trial judge in this case also relied on Lipke in denying defendant’s motion to reconsider Judge Chapman’s ruling. Defendant claims that the court’s reliance on Lipke was error.

In Lipke, an asbestos case, the defendant denied that the plaintiff was exposed to its product. One of the defendant’s arguments on appeal was that the trial court wrongfully excluded evidence of plaintiff’s exposure to other asbestos products. That court noted that there can be more than one proximate cause of an injury and stated:

“ ‘In such a situation, one guilty of negligence cannot avoid responsibility merely because another person is guilty of negligence contributing to the same injury ***.’ (Sears v. Rois Brothers Equipment, Inc. (1982), 110 Ill. App. 3d 884, 889, 443 N.E.2d 214, appeal denied (1982), 93 Ill. 2d 548.) Under Romine v. City of Watseka (1950), 341 Ill. App. 370, 377, 91 N.E.2d 76, where such guilt exists, ‘it is no defense that some other person, or thing contributed to bringing about the result for which damages are claimed. Either or both parties are liable for all damages sustained.’ Thus, the fact that plaintiff used a variety of asbestos products does not relieve defendant of liability for his injuries. Evidence of such exposure is not relevant.” Lipke, 153 Ill. App. 3d at 509, 505 N.E.2d at 1221.

Defendant asserts that there are two elements to proximate cause; actual cause, or cause in fact, and legal cause. Cause in fact is determined by simply analyzing the facts. Two tests are used when considering cause in fact: the “but for” test, where a defendant’s conduct is not a cause if the event would have occurred without it; and the “substantial factor” test, in which a defendant’s conduct is a cause “if it was a material element and a substantial factor in bringing the event about.” (Thacker v. UN R Industries, Inc. (1992), 151 Ill. 2d 343, 354-55, 603 N.E.2d 449-55.) Once it is found that defendant’s conduct was a cause in fact of the injury, the next question is whether defendant’s conduct was the legal cause, i.e., whether the defendant should be held legally responsible for the actual consequences of his conduct. Turner v. Roesner (1990), 193 Ill. App. 3d 182, 490, 549 N.E.2d 1287, 1292-93, appeal denied (1990), 132 Ill. 2d 555, 555 N.E.2d 386.

Defendant argues that its conduct was not a cause in fact of plaintiffs’ injuries and asserts that the evidence of other exposures to ether products was necessary and should have been admitted because the jury could not make the initial determination of cause in fact unless it knew of all other exposures. Defendant’s position is that Lipke does not apply to exclude evidence of exposures to other manufacturer’s products when cause in fact is disputed, but rather, it applies only ;o the second prong of proximate cause, legal cause.

Although it appears that the defendant in Lipke was arguing that t was not a cause of the injury, the court’s holding appears to pertain ;o cases in which cause in fact has already been proven; that where it las already been proven that one defendant is a cause in fact, that defendant cannot introduce evidence of another’s negligence in order.

;o relieve it of legal cause and thus liability. We, nevertheless, con-dude that the holding in Lipke, that evidence of exposure to other as-Destos-containing products is not relevant, applies in cases in which actual cause or cause in fact is disputed.

Our courts recognize that it is impossible to determine whether specific exposure or even several exposures to a particular asbesto product caused or contributed to the' cause of the injury. On the othe hand, it is equally impossible to find that a specific exposure or set) eral exposures did not cause or contribute to the injury. Proof of cat sation is further complicated by the extended time period of mor! than 25 years for the asbestos injury to manifest itself. Because o these difficulties in proof of causation in asbestos cases, our suprem court adopted the “frequency, regularity and proximity” test, whic has been characterized as the “de minimus” rule. Thacker, 151 Ill. 2 at 358-59, 603 N.E.2d at 457.

Allowing a defendant to present evidence of a plaintiff’s expc sures to other products whose manufacturers are not defendants i the trial would only confuse the jury, with a possible result that defendant could be unjustly relieved of liability. The purpose for whic the evidence is offered is inconsequential, for the effect is the same the shift of blame to another manufacturer.

On the other hand, a plaintiff might incur a risk by not introduc ing the evidence of other exposures, because, if the evidence show only a minimal exposure to defendant’s product and no other expc sure to asbest'os, plaintiff’s expert may look foolish testifying tha such minimal exposure caused a pneumoconiosis that must have bee: caused by asbestos. Plaintiff would also be subject to the “de mim mus” rule, which may result in a directed verdict against him. 1 plaintiff attempts to bolster his or her expert’s opinion by showin plaintiff’s exposure to other manufacturers’ products and arguing th cumulative effects of asbestos exposure, then plaintiff would be oper ing the door to defendant’s argument that it was plaintiff’s exposur to other products that caused plaintiff’s injury.

Defendant could have negated liability without introducing evi dence of exposure to other asbestos products simply by showing, fo example, that plaintiff was not exposed to its products, that exposur to its products was insufficient to cause injury, or that its product cor tained such a low amount of asbestos that it could not have been cause of the injury. The question for the jury to consider, with o without evidence of exposures to other products, is the same: whethe the evidence against the particular defendant at trial was sufficient t find that particular defendant’s product was an actual cause or caus in fact of plaintiff’s injury.

Plaintiffs’ burden was to show that defendant’s conduct was : substantial factor in causing the alleged injury. (Thacker v. UNR In dustries, Inc. (1992), 151 Ill. 2d 343, 603 N.E.2d 449; Wehmeier % TNR Industries, Inc. (1991), 213 Ill. App. 3d 6, 572 N.E,2d 320.) In he case at hand, after reviewing all the evidence, we conclude there /as sufficient evidence for the jury to reasonably find this defendant ¡able. Each of the plaintiffs suffers from asbestosis. Dr. Yanta testiied that each exposure to asbestos was a substantial factor in causing he asbestosis. There was testimony that Kaylo was used more than ny other product and not only frequently but almost daily at Amoco nd General Steel, and that each plaintiff worked with or was in close iroximity to Kaylo on a regular basis for several years. We do not ave to be concerned about the “de minimus” rule or the fiber-drift [uestion present in the Thacker case, as there was substantial evience showing that plaintiffs were frequently, regularly, and proxinately exposed to Kaylo. (Thacker v. UNR Industries, Inc. (1992), 51 Ill. 2d 343, 603 N.E.2d 449.) Once the plaintiffs established that efendant’s product was a substantial factor in causing their injuries, he allowance of evidence of plaintiffs’ exposures to products manuactured by nonparties would have improperly allowed defendant to ttempt to shift the blame of its negligence to another party or to reate confusion in the jurors’ minds.

Finally, we note that recently the United States Court of Appeals, Seventh Circuit, in Tragarz v. Reene Corp. (7th Cir. 1992), 980 F.2d :11, agreed with our interpretation of Lipke that evidence of expo-ures of plaintiff to other manufacturer’s products is not relevant in letermining whether exposure to defendant’s product was a substan-ial factor in causing plaintiff’s injury.

II. CHANGE OF VENUE

Defendant argues that the trial court erred by denying its “mo-ion for change of judge” pursuant to section 2 — 1001(aX2) of the lode of Civil Procedure. (111. Rev. Stat. 1989, ch. 110, par. 2— .001(a)(2).) Under that statute, if a motion is timely and in proper brm, the right to change of venue is absolute and the trial court has 10 discretion to deny the motion. (Rosewood Corp. v. Transamerica nsurance Co. (1974), 57 Ill. 2d 247, 311 N.E.2d 673.) A motion is unimely if it is brought after a hearing on the merits has started or the rial court has ruled on a substantive issue in the case. (Frede v. McDaniels (1976), 37 Ill. App. 3d 1053, 347 N.E.2d 259.) “The timeliness •equirement prevents a party from determining the trial court’s attiude toward issues in the case, then switching judges.” Hernan v. Jeferson (1985), 136 Ill. App. 3d 745, 751, 483 N.E.2d 537, 542.

As we mentioned previously, there were thousands of asbestos ¡ases filed in Madison County. All of the plaintiffs in these cases were represented by four separate law firms. Judge Riley, assigned to help manage all these cases, entered a standing order which standardized pleading, regulated discovery, and set forth standards for nonexpert and expert disclosures in all asbestos litigation.

The trial judge in this case, Judge Maag, was assigned to assist Judge Riley on April 7, 1989. He assisted Judge Riley in hearings on proposed changes in the standing order and participated in the decision on a supplement to the standing order, which limited the parties in redeposing co-workers who had been deposed as plaintiffs in other asbestos cases.

On August 30, 1989, W.R. Grace and Company, another defendant, filed a motion for clarification and sanctions in all pending asbestos cases in which plaintiffs were represented by Baron and Budd, the plaintiffs’ attorneys in this case. Judge Maag ruled on this motion on January 3,1990.

On January 4, 1990, defendant filed its motion for change of judge from Judge Maag “in all Madison County Dlinois asbestos cases in which [OCF] is a defendant.” The motion applied to “all asbestos litigation filed by Baron and Budd.” Judge Maag denied the motion because he had previously ruled on the motion for clarification and sanctions, which he considered a substantive issue in all cases to which the motion applied.

Defendant raised the issue again in its post-trial motion. The trial judge denied the motion, citing his participation in rulings on the standing order and its supplements and various other issues in other asbestos cases pending in Madison County.

Defendant claims that the motion for clarification and for sanctions pertained only to discovery and the ruling on that motion did not require the court to consider, evaluate or weigh any substantive issues of these lawsuits. Defendant cites Becker v. R.E. Cooper Corp. (1990), 193 Ill. App. 3d 459, 550 N.E.2d 236, Stoller v. Paul Revere Life Insurance Co. (1987), 163 Ill. App. 3d 438, 517 N.E.2d 5, and In re Marriage of Birt (1987), 157 Ill. App. 3d 363, 510 N.E.2d 559, appeal denied (1987), 116 Ill. 2d 556, 515 N.E.2d 101, in support of its argument. These three cases are distinguishable from the case at hand because: in Becker, the trial judge only presided over a pretrial conference in which no ruling was made; in Stoller, the trial judge made general discovery rulings, set dates for interrogatories and the trial, and required submission of a witness list; and in Birt, the judge was sitting in on motions for another judge who was assigned to hear the case and he merely limited discovery by nonparties to the action.

In the case at hand, however, the trial judge’s ruling on the notion for clarification and for sanctions was a ruling on a substanive issue, and defendant was not entitled to a change of judge under lection 2 — 1001. This ruling entailed more than mere administrative ir ministerial discovery rulings. Judge Haag’s ruling pertained to evilentiary matters, including the questions a defendant could ask a plaintiff co-worker as to what products a plaintiff worked with and sdiat impeachment defendant would be allowed at trial by use of the epositions, and he ordered parties to allow a witness to answer ques-ions subject to objection. Thus, the trial judge limited the scope of nquiry and possible impeachment of plaintiff co-workers at the trial nth respect to product identification, and he made known his interpretation of Supreme Court Rule 212(c) (134 111. 2d R. 212(c)), involvng the partial use of depositions for impeachment at the trial.

Furthermore, in light of the above, we believe that the judge’s uling on the motion for sanctions against Baron and Budd was a subtantive ruling. See Perimeter Exhibits, Ltd. v. Glenbard Molded Under, Inc. (1984), 122 Ill. App. 3d 504, 461 N.E.2d 44; Dolido v. Ze,ith Radio Corp. (1990), 194 Ill. App. 3d 268, 550 N.E.2d 1225.

Since we find that the above were rulings on substantive issues, re need not consider whether the trial judge’s participation in the uling regarding the supplement to the standing order was a substanive issue.

III. PUNITIVE DAMAGES

The jury awarded $1 million in punitive damages to each of the ive plaintiffs. Defendant raises several issues regarding those puniive damages.

A. INSUFFICIENT EVIDENCE

Defendant argues that the trial court erred in submitting the is-ue of punitive damages to the jury because each plaintiff failed to es-ablish the elements necessary for an award of punitive damages.

Punitive damages can be awarded when the tort was “committed nth fraud, actual malice, deliberate violence or oppression, or when ie defendant acts willfully or with a such gross negligence as to indiate a wanton disregard for the rights of others.” Kelsay v. Motorola, nc. (1978), 74 Ill. 2d 172, 186, 384 N.E.2d 353, 359.

Defendant argues that the punitive damage awards should be va-ated because there was no evidence that defendant acted with outra-eous, willful or wanton conduct in not warning plaintiffs of the daner of asbestos when it marketed Kaylo. Defendant asserts that plaintiffs’ evidence established only that defendant was generally aware of developing medical literature that asbestos could cause health problems and did not establish that defendant had knowledge of health hazards associated with endusers or bystanders. We dis agree.

Medical literature existed, as early as 1899, concerning the hazards of asbestos. Defendant was a subscriber to many journals which contained articles on the dangers of asbestos. Several office memoranda (portions of which are set out below) indicated that defendant began compiling information on the hazards of asbestos as early as the 1940’s and 1950’s.

Memoranda introduced indicated that in 1940 defendant was en countering difficulty marketing its fiberglass insulation products because the insulation workers’ union feared that fiberglass might b< hazardous. Those documents, while highlighting the positive aspects of fiberglass, indicated defendant’s awareness of the hazards of asbes tos.

Memo dated January 30,1940:
“ [S]ome of these other materials are known to develop in dustrial diseases that we do not find present in the handling of fiberglass (such as asbestosis and possibly silicosis). Mosi of these other products are very dusty compared to fiber glass.”
Memo dated January 20,1941:
“Thanks so much for your letter of January 17. It is in deed good news to hear that you do not feel you will encoun ter any evidence of an asbestos-like reaction since none o: the fiber reaches the lungs.”
Memo dated May 15,1941:
“I feel quite positive that we are not going to encountei any evidence of an asbestos-like reaction because none of th< fiber reaches the interior of the lungs.”

In order to combat the union’s fear that fiberglass was harmful and t( successfully market their product, defendant intended to publicize th< hazards associated with asbestos:

Memo dated January 7, 1942:
“Gather as a weapon-in-reserve an impressive file of photo stats of medical literature on asbestosis. Available are tw< bibliographies covering medical literature to 1938, citing ref erence to scores of publications in which the lung and skii hazards of asbestos are discussed. This file would cover fiv< or six hundred pages ***.
If the reaction is unfavorable, use the asbestosis weapon in reserve to let them stew.”

Another memorandum, dated February 6, 1956, and directed to the lirector of personnel and industrial relations of OCF, pertained to nedical studies performed to determine the safety of fiberglass and stated:

“I suppose you already know that asbestos is fairly well incriminated as a carcinogen and the asbestos causes lung damage by virtue of the length of its fibers ***.”

1 letter dated February 8, 1956, which enclosed the above letter of February 6, stated:

“This is certainly not what I had in mind when I asked Dr. Schepers to give us a letter incorporating favorable statements based upon past experiments with Fiberglass in the laboratory. I personally do not like the general tenor of this letter. It is certainly nothing that we could show our customers or a union.”

A memorandum dated September 17, 1963, having as its subject, ‘HEALTH HAZARD, KAYLO V. GPL-400,” stated expressly:

“Asbestos (as found in Kaylo) when breathed into the lungs causes asbestosis which often leads to lung cancer.” n the above paragraph, the author went on to say that he had read ;hree medical articles on the subject, and he noted North Carolina’s •equirement that all persons working with asbestos receive X-ray ex-iminations. The memo continued:

“Based on presently available data, GPL-400 is not as detrimental to the health as Kaylo.”
In 1965, a memo suggested that a warning be put on Kaylo:
“I have been receiving inquiries from various sources about the health hazards of our Kaylo products and I assume this will continue. ***
The reason for this memo is that I believe you should be informed about the status of the situation and that we should continue to give serious consideration to the labeling of our Kaylo in a manner similar to that currently being used by Johns-Manville. ***
I do not know how many states will allow suit to be brought against negligent manufacturers ***.”

Another memo regarding the possibility of a warning label on Kaylo vas written on September 21,1970:

“Reference is made to your memo of September 15 regarding the warning label that should appear on Kaylo.
Are you saying that we have to do this now? I naturally would like to delay this requirement as long as possible.”

Viewing this evidence in the light most favorable to the plaintiffs (Loitz v. Remington Arms Co. (1990), 138 Ill. 2d 404, 426, 563 N.E.2d 397, 407, citing Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill, 2d 494, 229 N.E.2d 504), we believe this evidence was sufficient to warrant punitive damages. The evidence showed that defendant was aware of the hazards of asbestos, chose not to disclose the information, and failed to place warning labels on the product at the time it knew of the hazards of the product. In fact, defendant apparently chose to stockpile the information in the event that it could be beneficial in marketing other products. It is also evident that defendant continued to hesitate to place warning labels on the products as late as 1970, even after it became aware of the possibility of lawsuits. This conduct clearly amounts to an utter indifference to or conscious disregard for the safety of others.

Defendant, relying on Kemner v. Monsanto Co. (1991), 217 Ill. App. 3d 188, 576 N.E.2d 1146, also argues that plaintiffs failed to make a submissible case for punitive damages because there was nc evidence of any corporate complicity by defendant. Under the corporate complicity rule, punitive damages can be assessed against a corporation only “if the superior officer of the corporation ordered, participated in, or ratified the ‘outrageous conduct’ of the employee. (Kemner, 217 Ill. App. 3d at 205, 576 N.E.2d at 1157, citing Pendowski v. Patent Scaffolding Co. (1980), 89 Ill. App. 3d 484, 411 N.E.2d 910.) A plaintiff is required to establish that there was “deliberate corporate participation by and through its officers or directors.” (Kemner, 217 Ill. App. 3d at 207, 576 N.E.2d at 1158.) Defendant argues that plaintiffs failed to show corporate complicity because there was no evidence that defendant’s corporate management knew of the risk or dangers of asbestos or acted willfully or wantonly. Defendant acknowledges the above memoranda, but asserts there was no showing of the responsibilities or authority of the authors of the memos.

In both Kemner and Pendowski, the issue was whether it was error for the trial court to refuse to instruct the jury on corporate complicity. In each of those cases, the trial court failed to give an instruction on complicity but instead gave the same instruction that was given in the case at hand: “The defendant is a corporation and can act only through its officers and employees. Any act or omission of an officer or employee within the scope of employment is the action or omission of the defendant corporation.” (Illinois Pattern Jury Instructions, Civil, No. 50.11 (2d ed. 1971).) Under this instruction, a corpo-•ation is liable for any act of an employee, rather than those only or-iered, participated in, or ratified by a superior officer. Thus, under ;his instruction, no corporate complicity is required.

In the case at hand, however, defendant has waived any argument regarding the lack of corporate complicity. Defendant failed to object ;o this instruction and did not tender a proposed instruction of his )wn. Therefore, the issue is waived. Deal v. Byford (1989), 127 Ill. 2d 192, 537 N.E.2d 267.

Furthermore, even had a corporate complicity instruction been riven, there was sufficient evidence to infer corporate complicity. Defendant does not dispute the authenticity of the documents. Most )f the documents are on defendant’s company letterhead and are entiled “intra-office correspondence.” At least two of the memos make •eference to the company president, and one was written to the director of personnel and industrial relations. Furthermore, there were several letters, each pertaining to marketing, company policies, and msiness, which indicate that the memos were written by persons with luthority within the corporation. We do not believe it is necessary hat there be direct proof, such as in the form of a superior officer’s signature, to show corporate complicity. It can be reasonably inferred rom the evidence presented that there was deliberate corporate paricipation. Kemner v. Monsanto Co. (1991), 217 Ill. App. 3d 188, 576 Sl.E.2d 1146.

B. EXCESSIVENESS

Defendant argues next that the five punitive damage awards, totaling $5 million, are excessive. Defendant asserts that there are hree factors, not properly considered here, which should be considered in determining whether a punitive damages award is excessive: 1) the enormity of the wrong; (2) the financial status of the defending and (3) the potential liability of the defendant. (Hazelwood v. Illilois Central GulfR.R. (1983), 114 Ill. App. 3d 703, 450 N.E.2d 1199; Deal v. Byford (1989), 127 Ill. 2d 192, 537 N.E.2d 267.) Defendant argues that based on these factors, the awards are excessive.

In Illinois, the nature of punitive damages is punishment for the lefendant, and “[tjhat punishment is designed in turn to promote ;hree purposes: (1) to act as retribution against the defendant; (2) to leter the defendant from committing similar wrongs in the future; ind (3) to deter others from similar conduct.” (Hazelwood, 114 Ill. Vpp. 3d at 712, 450 N.E.2d at 1207.) An award of punitive damages vill not be disturbed on appeal as being excessive unless it is the result of passion, partiality, or corruption. Deal v. Byford (1989), 121 Ill. 2d 192, 537 N.E.2d 267.

Defendant first argues that its conduct was not so egregious as tc justify the award. We disagree.

As we previously indicated, the evidence showed that defendanl was aware of the dangers of asbestos and, in fact, planned to use tha1 information in marketing another product. The intraoffice memos alsc indicated a deliberate failure to warn. Asbestosis is a horrible disease that generally results in a painful and prolonged death. Surely defend ant cannot be serious when it maintains that willfully exposing anc causing this horrible disease for five persons is not an enormous wrong.

We also disagree with defendant’s assertion that plaintiffs’ failure to introduce evidence of defendant’s financial status requires an auto matic remittitur of the awards. (Black v. Iovino (1991), 219 Ill. App 3d 378, 580 N.E.2d 139, appeal denied (1992), 143 Ill. 2d 636, 581 N.E.2d 1011.) We decline to follow Black and rely on the ruling of om supreme court in Deal v. Byford (1989), 127 Ill. 2d 192, 537 N.E.2c 267, that plaintiffs were not required to introduce evidence of defend ant’s financial status in order to recover punitive damages. Defendani did not offer evidence of its financial status, and it cannot now com plain of its absence. Deal v. By ford (1989), 127 Ill. 2d 192, 537 N.E.2c 267; see also Ekl v. Rnecht (1991), 223 Ill. App. 3d 234, 585 N.E.2c 156; Verdonck v. Scopes (1992), 226 Ill. App. 3d 484, 590 N.E.2d 545.

We next consider defendant’s potential liability. In support of its post-trial motion, defendant filed the affidavit of Robert McComber an attorney for defendant responsible for maintaining records regard ing the status of asbestos litigation pending against it. According tc his affidavit, as of November 30, 1990, there were almost 85,00( cases pending against defendant with new cases being filed at a rate of almost 2,000 a month. The affidavit also listed several previous judgments against defendant of huge amounts, but the affidavit fails to tell if defendant paid such judgments.

There is no doubt that defendant’s potential liability is great. H does not take a mathematical genius to figure out that if defendant has 85,000 suits filed against it and it loses 10% of the suits with punitive damages awarded in the sum of $1 million, defendant’s poten tial liability would be $8.5 billion for punitive damages alone. This evi dence and reasoning, however, were not presented to the jury.

The basic problem with defendant’s argument is that the jury was not given any of the information that defendant now wants us to con sider, because the defendant elected not to submit the information tc the jury. We have held before that “[t]he jury, with its unique, ability to articulate community values, should decide whether punitive damages should be imposed.” (Rnecht v. Radiac Abrasives, Inc. (1991), 219 Ill. App. 3d 979, 984, 579 N.E.2d 1248, 1251, appeal denied (1992), 143 Ill. 2d 639, 587 N.E.2d 1016.) Defendant is now asking us to reverse a jury verdict simply because $5 million is a lot of money. This court, however, does not possess a better ability to articulate community values than the 12 jurors in this case.

Further, plaintiffs cannot cross-examine an affidavit, nor were plaintiffs given the opportunity to contest the allegations in the affidavit. We do not know, therefore, if there are 85,000 suits similar to this case pending against defendant, whether defendant has any insurance to cover the judgments, what percentage of the suits will most likely result in judgments against the defendant (we note that the jury found against four plaintiffs in this case), whether structured settlements can be reached in many cases, whether defendant is a $1 million company or a $10 billion company, and whether juries will award such punitive damages if they are made aware that there may not be any money left for actual damages for the thousands of plaintiffs whose cases have not been tried. While potential liability is a factor to be considered, since defendants failed to timely submit the evidence of potential liability we cannot now consider the evidence on review.

C. CONSTITUTIONAL

Defendant’s next argument regarding punitive damages is that the awards violated defendant’s procedural and substantive due process rights under the due process clause of the fourteenth amendment and article I, section 2, of the Illinois Constitution. Defendant cites Pacific Mutual Life Insurance Co. v. Haslip (1991), 499 U.S. 1, 113 L. Ed. 2d 1, 111 S. Ct. 1032, for the proposition that there are procedural and substantive due process guidelines to insure that punitive damage awards are fair, which are not present here..

In Haslip, in deciding that the punitive damages in an Alabama case did not violate the due process clause of the fourteenth amendment, the Supreme Court noted that there was no “mathematical bright line between the constitutionaUy acceptable and the constitutionally unacceptable” (Haslip, 499 U.S. at 18, 113 L. Ed. 2d at 20, 111 S. Ct. at 1043), but that “general concerns of reasonableness and adequate guidance from the court *** enter into the constitutional calculus.” (Haslip, 499 U.S. at 18, 113 L. Ed. 2d at 20, 111 S. Ct. at 1043.) The court then considered the instructions given to the jury and Alabama’s post-trial and appellate review. In light of Haslip, we will consider the same.

1. INSTRUCTIONS

Defendant alleges that the jury instructions violated defendant’s procedural due process rights because the jury was permitted to exercise “unbridled discretion” in awarding the punitive damages. We disagree.

We first note that defendant has waived any objection to the jury instructions because it did not tender its own version of instructions. (Deal v. By ford (1989), 127 Ill. 2d 192, 537 N.E.2d 267.) Nevertheless, we will address the constitutionality of the jury instructions. These instructions defined “willful and wanton” and instructed on punitive damages, stating:

“If you find that defendant’s conduct was wilful and wanton and proximately caused injury to the plaintiff, and if you believe that justice and the public good require it, you may *** award an amount which will serve to punish the defendant and to deter others from the commission of like offenses.” (Emphasis added.)

We do not believe these jury instructions gave the jury such “unbridled discretion” that they were unconstitutional. The instructions indicated to the jury that punitive damages were not mandatory, that willful and wanton conduct was required, and they were only to be awarded if the “public good require[d] it.” It also identified the purpose and policy of punitive damages in Illinois: to “punish” and to “deter.” (Relsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 384 N.E.2d 353.) These instructions conformed with those under Illinois law. (Illinois Pattern Jury Instructions, Civil, Nos. 14.01, 35.01 (3d ed. 1992).) We find that the discretion exercised here was within reasonable constraints and due process was satisfied. Haslip, 499 U.S. at 20, 113 L. Ed. 2d at 21, 111 S. Ct. at 1044.

2. POST-TRIAL AND APPELLATE REVIEW

Defendant claims that Illinois standards for post-trial and appellate review do not provide a sufficiently meaningful constraint on the jury. Defendant specifically refers to the trial court’s lack of discussion on punitive damages in denying its post-trial motion as demonstrating the lack of meaningful standards.

We find, however, that post-trial and appellate review in Illinois does provide a sufficiently meaningful constraint on the jury. In denying defendant’s post-trial motion, the trial judge noted that defendant’s claims regarding punitive damages were without merit or were waived. The instructional error was waived because defendant failed to tender what it considered to be proper instructions, and defendant’s argument that it had already been punished sufficiently was waived because the evidence was not presented at trial. We do not agree that without a more thorough discussion there cannot be an effective appellate review.

Furthermore, the procedures for post-trial and appellate review are sufficient. Section 2 — 1207 of the Code of Civil Procedure provides that a trial court has discretion to determine whether a punitive damages award is excessive and, if so, may enter a remittitur and a conditional new trial. (111. Rev. Stat. 1989, ch. 110, par. 2 — 1207.) Also, in Hazelwood, the court outlined three factors that should be considered when determining whether a punitive damages award is excessive. Those factors include the enormity of the wrong, the defendant’s financial status, and the potential liability of the defendant. (Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 450 N.E.2d 1199.) These factors are not exhaustive. Each case must be assessed in light of its particular facts, and the underlying purposes of an award must be satisfied. (Deal, 127 Ill. 2d at 204.) We believe these procedures for review of the awards are constitutionally sufficient.

We also note the prejudgment protections against punitive damage awards both prior to trial and before the punitive damages issue is presented to the jury. Section 2 — 604 of the Code of Civil Procedure requires that before a plaintiff can file a pleading seeking punitive damages, the plaintiff must establish at an evidentiary hearing “a reasonable likelihood of proving facts at trial sufficient to support an award of punitive damages.” (HI. Rev. Stat. 1989, ch. 110, par. 2— 604.1.) This determination was made before the trial began in the case at hand. Also, the trial court decides whether the evidence makes a prima facie case for punitive damages. (Kneekt v. Radiac Abrasives, Inc. (1991), 219 Ill. App. 3d 979, 579 N.E.2d 1248.) This determination was made here on defendant’s motion to prevent the issue from being submitted to the jury and when the court considered the jury instructions. The trial court then submitted the issue to the jury, whose decision was whether to award punitive damages and, if so, in what amount.

3. SUBSTANTIVE DUE PROCESS: EXCESSIVENESS

Defendant argues that these awards must be reviewed under substantive due process standards for excessiveness. We find that these awards do not violate due process in this case. As stated in Haslip, there is no bright line between what is constitutionally acceptable or unacceptable. (Haslip, 499 U.S. at 18, 113 L. Ed. 2d at 20, 111 S. Ct. at 1043.) We also reject defendant’s claim, based on Haslip, that we should consider the relativeness of the awards to a comparable civil fine in Illinois and that since Illinois does not have a civil fine, the awards must be excessive. Haslip did not require that this be considered, and we do not believe that the absence of an Illinois law allowing a civil fine to be imposed means that the awards are excessive and lack an objective basis. The Supreme Court in Haslip indicated that the punitive damages awarded in that case were “much in excess of the fine that could be imposed for insurance fraud” in Alabama and took note that a person could be imprisoned for fraud. (Haslip, 499 U.S. at 23, 113 L. Ed. 2d at 23, 111 S. Ct. at 1046.) We do not see the need to discuss whether defendant or its employees violated the criminal laws of Illinois. It should be readily apparent that whenever an individual or a company is made aware that contact with its product can cause a horrible disease and death, society expects that individual or company to take whatever steps that are reasonable and necessary to warn the public of the dangers and to prevent such contact with the product that could be fatal. As noted before, a $5 million verdict for punishment and deterrence for willfully and wantonly causing five persons to suffer asbestosis “does not cross the line into the area of constitutional impropriety.” Haslip, 499 U.S. at 24, 113 L. Ed. 2d at 23, 111 S. Ct. at 1046.

4. MULTIPLE PUNITIVE DAMAGE AWARDS

Defendant argues the violation of its procedural and substantive due process rights through multiple punitive damage awards for similar conduct should compel us to vacate the awards.

Defendant urges that due process requires this court to establish meaningful procedures to protect it from multiple punishments and that these procedures “should apply to prevent the issue of punitive damages from ever being submitted to the jury in this case based on the facts established in the McComber affidavit.” We do not need to decide if meaningful procedures should be established in this case, because defendant failed to present any evidence to the court of the matters contained in the McComber affidavit until after the trial.

We note again that Illinois does provide sufficient guidelines, which also act to protect a defendant from multiple punishments, specifically the court’s consideration of defendant’s potential liability. (Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 450 N.E.2d 1199.) In this case, defendant did not submit the McComber affidavit until it filed its post-trial motion. Defendant cannot now complain that in light of the allegations in the McComber affidavit the trial judge erred in submitting the issue of multiple punitive damage awards to the jury, because at that time the trial judge was unaware of the McComber affidavit. The trial judge has enough burdens without being further saddled with the burden of learning of and presenting defendant’s case.

IV. EXPERT TESTIMONY

Defendant’s next argument raises the most perplexing issue in this case. Defendant contends that the trial court erred by allowing plaintiffs’ expert, Dr. Wagoner, a biostatistician and epidemiologist, to read into evidence the underlying data and information on which he based his opinion that asbestos was linked to asbestosis by 1930 and to lung cancer between 1949 and 1955.

One of the issues in the case was defendant’s knowledge regarding the hazards of asbestos. Plaintiffs offered Dr. Wagoner’s testimony to show when the relationship between asbestos and asbestosis was established and to show that medical and industrial literature existed, prior to the time that defendant put warning labels on Kaylo, that end-users of asbestos products had contracted asbestos-related diseases. Plaintiffs hoped to prove by Dr. Wagoner’s testimony that it was generally known within the asbestos industry and by defendant by 1955 that asbestos caused asbestosis and lung cancer. A jury could then conclude from all of the evidence that defendant had deliberately chosen to ignore and cover up the dangers of asbestos for more than 17 years without warning end-users or finding a substitute for asbestos.

Over defendant’s objection, the trial judge allowed Dr. Wagoner to summarize, in detail, various medical and industrial articles published before 1955 pertaining to studies performed and their results regarding the effects of asbestos. Defendant argues that the doctor’s testimony was inadmissible under Schuchman v. Stackable (1990), 198 111. App. 3d 209, 555 N.E.2d 1012, appeal denied (1990), 133 Ill. 2d 573, 561 N.E.2d 708, which defendant claims held that an expert may not read from medical literature. We decline to follow Schuchman, not because we believe it is wrong; rather, we believe it to be distinguishable.

In Schuchman, this court relied on Mielke v. Condell Memorial Hospital (1984), 124 Ill. App. 3d 42, 463 N.E.2d 216, which held that evidence of the content, or summaries of the content, of medical literature could not be introduced as substantive evidence. We believe that Schuchman is limited to those situations where the expert is not using the content of the medical literature as a basis for his or her opinion but rather the expert is attempting to bolster his opinion by showing that other experts agree with him. The expert witness then becomes a conduit for bringing before the jury a number of opinions of other experts without incurring the cost of hiring such experts and -without subjecting these other experts to cross-examination. Under these circumstances it does not matter if the witness is an expert in the field for which he is called, but rather the only question is whether the witness can read!

Our case is distinguishable from Schuchman, because in Schuch-man the literature was being offered in “support” of the expert’s opinion and to show that “there are studies that exist that are consistent with his opinion,” whereas in this case, the literature was offered as the underlying facts for Dr. Wagoner’s opinion. In Schuch-man and Mielke, the excluded testimony was not directly pertinent to the litigation or to the plaintiff’s treatment. In this case, the articles and studies published before 1955 were directly pertinent to the question, What did defendant know and when did it know it? The literature in Schuchman and Mielke was not necessary for the experts in those cases to form an opinion or to explain their opinion, whereas in this case Dr. Wagoner had to refer to the literature in order to explain his opinion and why he came to his opinion.

We recognize that this is just another area of the law that is evolving toward more openness in the presentation of evidence. While we are not prepared to go as far as Justice Chapman of this court, who wrote a vigorous dissent in Schuchman in which he stated that he believed Mielke had been implicitly overruled by People v. Anderson (1986), 113 Ill. 2d 1, 495 N.E.2d 485, cert, denied (1986), 479 U.S. 1012, 93 L. Ed. 2d 713, 107 S. Ct. 658 (Schuchman v. Stackable (1990), 198 Ill. App. 3d 209, 231, 555 N.E.2d 1012, 1026 (Chapman, J., dissenting)), we recognize that Anderson certainly uses such broad language that one might draw the conclusion, as did Justice Chapman, that an expert witness can give a complete history and summary of all of the scientific literature on a particular subject as long as he states that such literature is the basis of his opinion.

In Anderson, our supreme court held, after interpreting and analyzing Federal Rules of Evidence 703 and 705, People v. Ward (1975), 61 Ill. 2d 559, 338 N.E.2d 171, and Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322, cert, denied (1981), 454 U.S. 836, 70 L. Ed. 2d 117, 102 S. Ct. 140, that “an expert should be allowed to reveal the content of materials upon which he reasonably relies in order to explain the basis of his opinion.” (Anderson, 113 Ill. 2d at 9, 495 N.E.2d at 488.) The only limitations are that the expert reasonably relied on the material and its probative value must outweigh any prejudicial impact. (Ziekert v. Cox (1989), 182 Ill. App. 3d 926, 538 N.E.2d 751.) A trial court’s determination of whether the underlying facts or data upon which the expert bases his opinion are of a type reasonably relied on by experts in the particular field will not be disturbed absent an abuse of discretion. City of Chicago v. Anthony (1990), 136 Ill. 2d 169, 554 N.E.2d 1381, cert, denied (1990), 498 U.S. 900, 112 L. Ed. 2d 214, 111 S. Ct. 256.

The court in Anderson did worry about the information forming the basis of the expert’s opinion being misused by the jury as substantive evidence and suggested a limiting instruction advising the jury to consider such underlying information only to evaluate the basis of the expert’s opinion. (Anderson, 113 Ill. 2d at 12, 495 N.E.2d at 490.) The court also hedged its ruling by advising that “[a] trial judge, of course, need not allow the expert to recite secondhand information when its probative value in explaining the expert’s opinion pales beside its likely prejudicial impact or its tendency to create confusion.” Anderson, 113 Ill. 2d at 12, 495 N.E.2d at 490.

We believe that the trial court in this case properly permitted Dr. Wagoner to summarize the articles as a basis of his opinion and to show notice to defendant. Dr. Wagoner was not citing the articles to show that other experts agreed with him or even to show that the articles proved the truth of the matter asserted, that asbestos causes asbestosis. His testimony and summary of the articles were intended to show when, in his opinion, it was generally known or should have been known in the industry that asbestos caused asbestosis and was linked to cancer. If Dr. Wagoner had been prevented from summarizing and quoting from the various articles, then we would have had the bare opinion that defendant should have known of the connection between asbestos and asbestosis and cancer because there were articles written before 1955 that said so. Our supreme court recognized this problem in Anderson and stated: “Absent a full explanation of the expert’s reasons, including underlying facts and opinions, the jury has no way of evaluating the expert testimony [citation] and is therefore faced with a ‘meaningless conclusion.’ ” (Anderson, 113 Ill. 2d at 11, 495 N.E.2d at 489.) Allowing Dr. Wagoner to summarize the medical literature permitted the jury to better assess the weight and credibility of his testimony.

There is another exception to the hearsay rule that is applicable to the issue before this court, and that exception is notice. The hearsay rule prohibits introducing into evidence an out-of-court statement, written or oral, that is offered for the truth of the matter asserted therein. (People v. Campbell (1975), 28 Ill. App. 3d 480, 328 N.E.2d 608.) An out-of-court statement offered for some independent purpose, rather than the truth of the matter asserted, is not hearsay. (Thornton v. University Civil Service Merit Board (1987), 154 Ill. App. 3d 1016, 507 N.E .2d 1262.) A writing that is offered to prove that the recipient had notice of the information contained therein rather than to prove the truth of the matter asserted is admissible. (People v. Campbell (1975), 28 Ill. App. 3d 480, 486, 328 N.E .2d 608, 615; Charleston National Bank v. International Harvester Co. (1974), 22 Ill. App. 3d 999, 317 N.E .2d 585; Hanlon v. Aireo Industrial Gases (1991), 219 Dl. App. 3d 777, 579 N.E .2d 1136, appeal denied (1992), 143 Ill. 2d 638, 587 N.E .2d 1014.) Further, a newspaper article may fall within the exception to the hearsay rule for showing notice. Deerhake v. Du Quoin State Fair Association, Inc. (1989), 185 Ill. App. 3d 374, 381, 541 N.E.2d 719, 722, appeal denied (1989), 127 Ill. 2d 613, 545 N.E.2d 107.

Defendant admitted in interrogatories that it received certain medical and industrial journals. Dr. Wagoner also testified on the content of various articles contained in those journals that should have put defendant on notice that people using asbestos products could develop asbestos-related diseases. Since two of the underlying issues in this case were, What did defendant know? and When did defendant know it?, evidence of the content of the articles that defendant received was the only method plaintiffs had, other than trying to search for key employees that worked for defendant 35 years or more ago as witnesses, in order to prove what and when defendant knew of the dangers of asbestos.

The judge issued two cautionary instructions to the jury that that evidence was not to be considered for its truth but, rather, it was only relevant to the issue of notice: what defendant knew or should have known. Furthermore, defendant had the opportunity to rebut this by presenting evidence on the “state of the art” issue through its own witnesses.

Finally, we determine that the probative value of the evidence of the studies outweighed its prejudicial effect because it is no longer disputed that, in fact, asbestos is linked to various lung disorders. Thus, the opinions contained in the articles and literature were not in dispute, and therefore such opinions could not be prejudicial.

V. DEPOSITION TESTIMONY

Herman Davis testified at trial that he had seen Kayld throughout the Amoco facility. Defendant then, on cross-examination, sought to impeach Davis by reading a portion of his deposition where Davis indicated he had only seen Kaylo at a storage building. On rebuttal, plaintiffs’ counsel read another portion of Davis’ deposition in which Davis was asked which products he was able to identify. Plaintiffs’ counsel read only a portion of Davis’ answer; “the Kaylo pipe covering and block.” Plaintiffs’ counsel did not read the other portion of the answer wherein Davis identified five other products he had seen at the plant. Defendant objected, arguing that the entire answer should have been read to the jury because reading only that portion gave the jury the erroneous impression that Kaylo was the only product Davis could remember and identify. The trial court ruled that the evidence was properly excluded based on Lipke, which the court relied on in excluding evidence of exposure to other asbestos-containing products.

Defendant argues that it was error to allow only a portion of the deposition to be read and not the remainder because Lipke does not support the exclusion of evidence of exposure to other asbestos products and it was a violation of Supreme Court Rule 212(c) (134 Ill. 2d R. 212(c)).

We first note that, as we stated in our ruling in defendant’s first argument, evidence of exposure to other manufacturers’ products is irrelevant. We must next consider, however, whether, in light of our ruling, Rule 212(c) requires that the entire answer should have been read. We conclude that it does not.

Supreme Court Rule 212(c) states in part:

“If only a part of a deposition is read or used at the trial by a party, any other party may at that time read or use or require him to read any other part of the deposition which ought in fairness to be considered.” (Emphasis added.) 134 El. 2d R. 212(c).

“Fairness” is the standard when considering whether the additional part of a deposition sought to be used should also be read into evidence. (Ill. Ann. Stat., ch. 110A, par. 212(c), Historical & Practice Notes, at 304 (Smith-Hurd 1985); see Dombrowski v. Laschinski (1978), 67 Ill. App. 3d 506, 385 N.E.2d 35.) As stated in Morse v. Hardinger (1976), 34 Ill. App. 3d 1020, 1025, 341 N.E.2d 172, 176, “[tjhough the fairness referred to in Rule 212(c) must always be insured, it must not be used as an excuse to sweep irrelevant material into evidence.” Evidence of exposure to other manufacturers products is irrelevant. Therefore, we conclude that the evidence was properly excluded.

VI. PRIOR SETTLEMENT

An intraoffice document, dated August 21, 1969, referred to new lawsuits against defendant and to an unrelated asbestos case in which defendant settled. The document stated in part: “The Claude Tomplait case settled out of court with payment earlier this year.” Defendant’s objection on the grounds that it could not be admitted because it referred to a settlement was overruled, and the document was admitted.

Defendant argues that the trial court erred by admitting the document into evidence because it contained a reference to a settlement by defendant in a prior asbestos suit. We disagree.

Evidence of settlement is generally inadmissible, and this rule has applied to a settlement with a third party arising out of the same automobile accident (Hill v. Hiles (1941), 309 Ill. App. 321, 32 N.E.2d 933) and to a settlement that did not arise out of the same occurrence (Illinois State Toll Highway Authority v. Heritage Standard Bank & Trust Co. (1990), 196 Ill. App. 3d 5, 552 N.E.2d 1151, appeal denied (1990), 133 Ill. 2d 556, 561 N.E.2d 692). In the case at hand, however, the admission of the evidence does not require reversal.

This evidence of an unrelated settlement came in one of several memos and referred to an incident that occurred in 1969. The evidence was not introduced to show liability but was contained in a memo used to show notice and defendant’s knowledge that asbestos was dangerous and yet continued to produce the Kaylo in spite of the hazards to the health of end-users. We cannot say that admitting this evidence of settlement was so prejudicial that it had a material effect on the outcome (J.L. Simmons Co. ex rel. Hartford Insurance Group v. Firestone Tire & Rubber Co. (1985), 108 Ill. 2d 106, 483 N.E.2d 273), and we therefore refuse to reverse on this basis.

VII. FEAR OF CANCER

Defendant argues that plaintiffs Reneau, Granger, and Davis failed to offer sufficient evidence to allow recovery for fear of cancer.

We note at the outset that plaintiffs did not make a separate claim for fear of cancer, nor was this a claim for increased risk of cancer. Fear of cancer was only part of emotional distress, an element of pain and suffering.

At trial, plaintiffs Reneau, Granger, and Davis sought to recover for fear of cancer as an element of emotional distress. The trial judge distinguished this case, where there was an alleged underlying injury, from a case where there was no injury and just a claim for fear of cancer. The trial judge was unable to find an Illinois case pertaining to what was required in order to recover for fear of cancer, and so he ruled based on Dartez v. Fibreboard Corp. (5th Cir. 1985), 765 F.2d 456, that two foundation requirements must be satisfied. Plaintiffs were required to show: first, that plaintiffs had some knowledge, through some type of communication, that their condition may become worse, i.e., it may turn into cancer; and second, that there must be competent medical evidence indicating to a reasonable degree of medical certainty that they either are at an increased risk of cancer or that they might or could develop cancer. If the plaintiffs met both of these tests, then evidence of damages for fear of cancer would be admissible; these damages would not be to compensate them for future cancers that may result, but would be for the emotional distress or fear that cancer may result. The judge said he would entertain a motion to strike if the proper foundation were not laid.

Plaintiffs’ medical experts, Dr. Yanta and Dr. Wagoner, testified that each plaintiff was at an increased risk of cancer. Defendant claims, however, that Granger, Davis, and Reneau each failed to offer sufficient evidence on the first requirement.

When ruling on the jury instructions regarding pain and suffering, the trial judge ruled that the part of the instruction stating, “the reasonable fear and anxiety experienced so on and so forth with respect to risk of cancer[,] that is stricken. That is all contained in the element of damages pain and suffering.” Thus, the jury was not specifically instructed on fear of cancer as a separate element of damages, nor did the instructions mention fear of cancer itself. The verdict forms returned by the jury did not refer to fear of cancer, but only to past and future pain and suffering. There is no evidence that the jury’s award reflected any fear-of-cancer claim.

In plaintiffs’ counsel’s closing argument on the issue of damages, he referred to past and future pain and suffering, “including fear of cancer,” and informed the jury what he thought it was worth.

We find that any error regarding this issue has been waived. The trial judge said he would entertain a motion to strike if the foundation was not met, and defendant did not make such a motion. Defendant also did not object to plaintiffs’ counsel’s closing argument or attempt to have the judge inform the jury that they should not consider fear of cancer as part of pain and suffering.

VIII. REDUCTION OF DAMAGES

Defendant’s last argument is that, in the alternative, the amount of the award should be reduced to reflect the amount of the settlements paid by the settling defendants.

Prior to trial there were several defendants. Just after the trial began, all of the defendants, except for OCF, allegedly settled with plaintiffs. Defendant, citing section 2 of the Contribution Act (Dl. Rev. Stat. 1989, ch. 70, par. 302(c)), argues that as a matter of law we should reduce the jury award by these amounts. Section 2(c) states:

“When a release or covenant not to sue or not to enforce judgment is given in good faith to one or more persons liable in tort arising out of the same injury or the same wrongful death, it does not discharge any of the other tortfeasors from liability for the injury or wrongful death unless its terms so provide but it reduces the recovery on any claim against the others to the extent of any amount stated in the release or the covenant, or in the amount of the consideration actually paid for it, whichever is greater.” Dl. Rev. Stat. 1989, ch. 70, par. 302(c).

Defendant did not raise the right to reduce the judgment by any settlements in its post-trial motion. Plaintiffs claim that any reduction in the judgment is waived because of defendant’s failure to raise such in its post-trial motion. However, the trial judge has not been given the opportunity to decide the issue of whether defendant is entitled to a setoff against compensatory damages and, if so, in what amount.

In light of the foregoing, the judgment awarding punitive damages is affirmed. The judgment awarding compensatory damages is conditionally affirmed; we remand to the circuit court for a determination of whether defendant has the right to a setoff against compensatory damages, and if so, in what amount.

Affirmed in part; conditionally affirmed in part and remanded with directions.

WELCH and GOLDENHERSH, JJ., concur.

       Justice Harrison participated in oral argument. Justice Goldenhersh was later assigned to this case in substitution for Justice Harrison, and Justice Goldenhersh has read the briefs and listened to the audiotape of oral argument.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT G. DeBARTOLO, Defendant-Appellant.
    Second District
    No. 2 — 91—0410
    Opinion filed March 5, 1993.
    Patrick A. Tuite and Ronald D. Menaker, both of Law Offices of Patrick A. Tuite, Ltd., of Chicago, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Marshall Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

On November 12, 1990, defendant, Robert G. DeBartolo, was charged with prostitution for agreeing to perform an act of lewd fondling upon an undercover police officer for the sum of $50 on August 9, 1990. The offense is initially treated as a Class A misdemeanor. (See 111. Rev. Stat. 1989, ch. 38, par. 11 — 14.) Following a bench trial, the trial court found defendant guilty, sentenced him to two years’ probation subject to 30 days’ confinement in the county jail at the end of the probation period, and fined him $500. Defendant’s post-trial motion was denied on April 11, 1991, and this timely appeal followed.

We affirm the judgment of the circuit court.

On appeal, defendant argues that (1) it was error for the trial court to deny his motion for a directed finding at the close of the State’s case because the State failed to prove beyond a reasonable doubt that defendant agreed to perform a sexual act upon another for money; and (2), alternatively, the evidence was insufficient for the court to find him guilty of prostitution beyond a reasonable doubt as to these same elements of the offense.

At trial, Officer Judith Zydowski of the Chicago police department testified for the State. She had been in law enforcement for 18 years and for the past four years assigned to the vice control section of her division. On August 9, 1990, at 10 a.m., she responded to an advertisement in a Chicago area newspaper which stated that a massage was available for women from a man for sore, tense areas.

She called the telephone number and heard a message from an answering machine. Zydowski left a message. Approximately 20 minutes later, she received a call from a male, whose voice she believed was the same as in the message, who asked if she had called. She responded that she had seen the ad in the newspaper and was interested in getting a massage. The man told her that the massage was a full body massage which lasted an hour and cost $50 cash. Zydowski asked if he were available at 1 p.m. that afternoon, and he replied that he was. She asked him at that point if there would be any “release.” Over objection, she opined, based on her experience investigating prostitution, that this term in the massage business customarily meant “masturbation.” When asked what his response was, she testified: “He said, yes, sure. But he was not going to discuss it over the phone with me. And I said fine. I understood.”

At approximately 1 p.m. that afternoon, with backup support, Zy-dowski went alone into the tanning salon at 13 West Main Street and asked the counter clerk for Gregg as she had been directed on the telephone. The clerk told her to go to the back of the facility, which had four or five tanning salon spaces, a whirlpool and a back office. In the back office, she met defendant, whom she identified in open court. She asked if he were Gregg and he said yes. She identified herself as Kelly McCormick. He first showed her the hot tub area and said she could use the hot tub before the massage. She said that area had framed pictures of people engaging in sexual intercourse. She said she was not interested in the hot tub, but was interested in the massage. He said “fine.”

Zydowski told him she hoped she had not offended him by asking for “release” on the phone. He said he was concerned that she was with the police. She said she was very tense and “the only way that I could come was through masturbation.” He again inquired if she were the police and stated, “Do you have a star?” She had a coin purse with her and opened it up. There was a panic button inside it which she could beep if she got into trouble. She showed it to him, and he said it was a beeper; if she were a police officer he did not want to “talk sex” with her.

Zydowski said she was not a police officer and did not want sex, but she wanted to be masturbated. He then told her to get up on the table and that they would have some fun. He stated that it would be $50 and she could pay him later. Zydowski pushed her panic alarm, but the backup officers were delayed by a train which ran through Main Street. She said she was a police officer and defendant was under arrest; he became verbally abusive. Her backup arrived along with a detective from the Bensenville police department and placed defendant under arrest.

On cross-examination, Zydowski was asked if, in response to the ad, she called this tanning salon in Bensenville, Illinois. She could not say that the telephone number was listed for the tanning salon, but, in response to the message, a return call was made by an individual with a husky voice. After ascertaining that a massage was available and would cost $50, she asked about the possibility of getting a “release.” The man said he preferred not to talk about this over the telephone. He agreed that she could come over at 1 p.m. and instructed her to ask for Gregg.

During cross-examination, Zydowski agreed that she then proceeded from her office, where she was monitoring these telephone calls, to the Bensenville area. After entering the premises, it was defendant who showed her the facilities. She denied that, after telling defendant that she did not want to use the hot tub, defendant told her to get comfortable. She began to but did not take off her clothes or strip down to her brassiere and panties. Defense counsel asked her whether she said, “Will you — does this — include in this massage a release?” She replied, “No. I asked him if he would masturbate me.” She acknowledged that she told defendant, “I am very tense and I would like to come, and the only way that I can come is through massage that includes masturbation.” After stating his concern that she might be a police officer, defendant said, “I don’t want to discuss sex with the police.” She then said she was not the police and did not want sex.

Defense counsel inquired further:

“Q. Now, after DeBartolo supposedly says hop up and we will have some fun. You then said to DeBartolo, well, what is it going to cost me now, isn’t that right, madam?
A. Yes.
Q. And DeBartolo said that it will cost you the same thing, 50 bucks, just like I told you before, isn’t that right?
A. Yes, sir.
Q. And then DeBartolo said you can pay me later, isn’t that right?
A. Yes.”

Zydowski acknowledged that it was not defendant that became abusive, but it was the clerk who did so. Because of the delay in the arrival of her backup, Zydowski waited in the front of the tanning salon. Defendant asked to make a telephone call. On his return he told her that he had called the Bensenville police. She also testified that her backup also called the Bensenville police, but did not know if defendant’s officer showed up before hers.

On redirect examination, Zydowski said that the voice she heard on the telephone and on the answering machine was the same as that of the person who offered to masturbate her.

The State rested. Defendant moved for a directed finding and argued essentially that there was no agreement for money as to the sexual favor because the terms of the massage were agreed to before there was any discussion of the sexual favor. Analyzing the facts in terms of contract law, the trial court was of the opinion that there was no complete agreement until both persons had agreed on the price and the services to be performed. The court did not believe that there was an agreement first and then an additional gratuitous (sexual) service was to be performed. The court believed that both on the telephone and at the tanning salon the witness requested the sexual act to be included within the massage for $50. The court denied defendant’s motion.

Defendant testified that he was the owner of a restaurant and two tanning salons. One was a tanning salon called Main Street Beach in Bensenville, Illinois, which provided services including body wrap, sculptured nails, massage, hot tub and sauna. Defendant acknowledged that he advertised in the local newspapers. He received a telephone call on August 9, 1990, at 10:30 a.m. He was monitoring calls received on his answering machine on the premises. The outgoing recorded greeting on the machine was a prerecorded message that was purchased from Radio Shack. He called back and talked to a person named Kelly. She asked if she could come in for a massage, and he agreed. He told her the price was $50. She asked for directions to get to the salon and said she would be there at 1 p.m. Defendant denied that anything was said over the telephone regarding the possibility of a “release.” The woman did not ask what the massage included. He told her that it was a Swedish type of body massage using nongreasy lotions.

Defendant had two employees who gave massages. One was a man and one was a woman. He told Kelly that he only had a woman that afternoon, but she wanted a man. He agreed to an appointment for her and told her to ask for Gregg. Defendant’s son worked in the front and acted as manager. The rear area was equipped with tanning rooms and a hot tub room; there was a massage table on the side of the office wall. That afternoon, Gregg, his male masseur, could not be reached, so defendant was going to perform the massage himself.

Kelly was dressed in shorts and a top. After defendant showed Kelly the hot tub and said she could use it, he told her to make herself comfortable and wrap a towel around herself. She said she did not have time for the hot tub. While she was changing, he left saying he would return in a few minutes. After about four minutes, he returned to the massage table. The woman, who was standing, had stripped down to her panties and brassiere. At this time, the woman said, “[W]ill this include release?” He replied, “I am sorry. We do not get involved in sex.” She then got dressed and said that she wished she had known this because she would not have come that far. She said that the only way that she could come was by massage. He replied that he could only give her a massage.

Defendant denied suggesting that he would masturbate or fondle her. She went to the front of the store and waited for her two backups. Defendant thought she had left. When she said that he was being arrested for prostitution, he called the Bensenville police department because he could not understand why Chicago set up this situation. Officer Harrison of the Bensenville police, whom defendant had asked for, arrived.

On cross-examination, defendant denied that the woman had asked him over the telephone for a “release.” He acknowledged that he knew that “release” meant masturbation when she asked for this at the salon. Defendant had never met Zydowski before and stated that, to his knowledge, there were no prior bad feelings between him and the officer. He denied any agreement to masturbate her.

The State offered no rebuttal evidence and stood on the prior testimony.

The applicable criminal statute states:

“Prostitution, (a) Any person who performs, offers or agrees to perform any act of sexual penetration as defined in Section 12 — 12 of this Code for money, or any touching or fondling of the sex organs of one person by another person, for money or anything of value, for the purpose of sexual arousal or gratification commits an act of prostitution.” 111. Rev. Stat. 1989, ch. 38, par. 11 — 14(a).

Defense counsel argued that the court could not find defendant guilty beyond a reasonable doubt because the price of the massage had first been established at $50, and, even when the officer asked for the sexual favor, the price remained at $50. Therefore, defendant argued that there was no agreement to exchange money or value for the sexual act.

The court observed that the agreement was not complete until the type of service, including the sexual act, was established for the price stated and that defendant agreed to perform this service both on the telephone and at the salon. The court noted that it would have to accept one version of the events over the other and found no reason to disregard the officer’s testimony. Based on the credibility of the witnesses and the probability of what occurred, the court found that the evidence sustained the charge.

On appeal, defendant similarly argues that the judgment must be reversed because the State failed to adduce sufficient evidence to prove beyond a reasonable doubt that defendant agreed to perform a sexual act for money. We disregard the question of defendant’s motion for a directed finding because it is waived; defendant failed to renew his motion after the close of all the evidence (see People v. Hominick (1988), 177 111. App. 3d 18) and has not argued this standard in his brief. Thus, we will consider only his second issue and examine the sufficiency of the evidence under the usual reasonable doubt standard. We believe that, because of its unique facts, this case presents an issue of first impression in this jurisdiction.

Throughout a criminal trial, the State has the burden of proving beyond a reasonable doubt all of the material and essential elements constituting the crime. (People v. Bartlett (1988), 175 111. App. 3d 686, 690.) In a bench trial, it is for the trial judge to determine the credibility of the witnesses, to weigh the evidence, and to draw reasonable inferences therefrom and resolve any conflicts in the evidence. (People v. Slim (1989), 127 Ill. 2d 302, 307.) A reviewing court will only set aside a criminal conviction when the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261.) The relevant question is whether, after viewing all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Phillips (1989), 127 Ill. 2d 499, 510.) The reasonable doubt standard applies in all criminal cases, whether the evidence is direct or circumstantial. People v. Turner (1990), 193 Ill. App. 3d 152, 157, citing People v. Pintos (1989), 133 Ill. 2d 286, 291.

The question before the court is whether the trial court could find beyond a reasonable doubt that defendant agreed to perform a sexual act for money. Defendant argues that at most the evidence shows that the act was gratuitous if defendant agreed to give a massage for $50 but then agreed to include a sexual “release” without additional monetary consideration. Neither defendant nor this court has found an Illinois case precisely on point. Defendant argues that Roper v. State (Tex. Crim. App. 1983), 652 S.W.2d 398, is persuasive on this issue. Roper is part of a line of Texas cases whose analysis is helpful to our exposition of the issue.

In Roper, two officers entered a “studio” and were told that they could have contact sessions or no-contact sessions. The officers paid $70 cash as payment for both officers for contact sessions. Officer Chisholm asked Roper what was allowed. The defendant replied that Chisholm could rub her anywhere but between the legs. Chisholm placed his hand on Roper’s leg, and she began to massage his chest and back. She also allowed him to place his hand on her breast, and then he began massaging her breast and her vagina. The defendant then massaged his penis. After a few minutes, a voice announced that the 30-minute session was ended. Similar activities took place between another female defendant and the other officer.

Although the officers paid a total of $70 for the two contact sessions, the reviewing court declined to interpret this as payment for sexual conduct. The court concluded that the officers were paying for a massage and there was no evidence that either defendant negotiated a price for her sexual favors. The court found the evidence insufficient to show that defendants engaged in sexual conduct for a fee. Compare Trippell v. State (Tex. Crim. App. 1976), 535 S.W.2d 178 (court questioned sufficiency of evidence (but reversed on a different ground), where complaining witness paid $20 for a massage and only after massage had begun did witness ask for a “local” massage and defendant masturbated him to a climax; court found it difficult to characterize act as prostitution).

In Austin v. State (Tex. Crim. App. 1990), 794 S.W.2d 408, the reviewing court questioned the continued viability of Roper and Trippell, noted that neither applied a standard of review to determine the sufficiency of the evidence, and found these cases distinguishable. Under the Texas prostitution statute, the offense is committed when (1) a person (2) knowingly (3) offers or agrees to engage in sexual conduct (4) in return for a fee payable to the actor. (Austin, 794 S.W.2d at 411; Tex. Penal Code Ann. §43.02(a)(l) (West 1989).) There, undercover officer Hutto entered a massage parlor and was told to select one of the females. Hutto selected defendant, and she led him to a room where there was a sign listing the prices for “Basic Body Rub” and “Swedish Deep Muscle Rub.” The defendant explained that the basic rub was a fingertip massage and the Swedish Deep Muscle Rub was a more thorough and stimulating rub. The highest cost of the former was $60 for 60 minutes and the highest cost of the latter was $130 for 60 minutes.

Hutto, an experienced police officer, was allowed to testify that a Swedish Deep Muscle Rub was a catch phrase for prostitution. Hutto gave the defendant $140 for the highest price “Swedish” rub, and defendant returned with his change of $10. After both disrobed, the nude defendant lay facedown on the bed and asked Hutto to massage her back, which he did for 10 minutes. Then she massaged Hutto on his back, legs, and buttocks for 10 minutes. She then asked Hutto if he would “like to end the session.” He pretended not to understand, protesting that he had been there only 20 minutes when he had paid for an hour. She repeated her inquiry. Hutto then asked if they ended the session whether he could “get more than just a rub.” The defendant said yes, and Hutto asked whether he needed to pay her more money or give a tip. The defendant replied: “No, it’s all taken care of.” He asked what he could get, and she gave him two choices of sexual acts. Because of her response, Hutto’s understanding was that either of the sexual acts was included in the $130. The defendant then agreed to engage in sexual intercourse.

The defendant argued that the evidence did not show that she agreed to engage in sexual intercourse for a fee. She contended that the $130 session ended before she agreed to the sexual conduct and that she was no longer being compensated for her personal services, and she made no effort to obtain (additional) compensation for any sexual activity. The State argued that the evidence showed that Hutto agreed to end the 20-minute session only after he determined from the defendant that he could get “more than a rub,” that it was “all taken care of,” and that the parties had agreed to sexual intercourse. Applying the reasonable doubt standard of review, the court sustained the conviction.

Implicit from the Austin majority’s conclusion is that the sexual act was covered by the original fee. The Austin court noted that there was no requirement under the statute for the defendant to negotiate a (separate) price for the act or for any money to exchange hands. However, in his dissent, Justice Powers urged that the evidence was not sufficient to show beyond a reasonable doubt that Austin knowingly agreed to sexual intercourse for a fee. The fee was paid initially and nominally for a massage, and there was no initial agreement for conduct on the part of Austin that was explicitly sexual. The dissenting justice characterized “Swedish Deep Muscle Rub” as ambiguous at best and would not make the inferential connection between the payment of the initial fee and the agreement to have sexual relations. Justice Powers believed Trippell and Roper were of prece-dential value and believed that these decisions stood for the proposition that, where a stated price is paid or agreed upon in exchange for services that are not explicitly sexual in nature, such as a massage or a contact session, some additional fee must be paid, agreed upon or negotiated in order to render any subsequent agreement for sexual services prostitution engaged in for a fee. The dissent pointed out that the sexual conduct in which Austin had agreed to engage was to be performed after the session ended. The dissent opined that the statement “it’s all taken care,” might have meant simply that defendant’s agreement for sexual relations was gratuitous.

In the case at bar, the State characterizes as disingenuous defendant’s contention that it was the massage that cost $50 and the masturbation was to be gratuitous. The State posits that the officer made it clear that masturbation was what she had approached defendant for, not an ordinary massage. The State likens the present case to S & F Corp. v. Bilandic (1978), 62 Ill. App. 3d 193, a municipal license revocation case using a different standard of proof. In S & F, it was clear that charging customers $144.90 for a bottle of nonalcoholic cherry frappe was a subterfuge to disguise acts of prostitution since the payment of the fee was followed by offers of sexual acts. It is evident from common knowledge that a soft drink does not command such a price. There is no need to resort to a case of artifice here. We do not find S <& F readily applicable as there is no clear evidence here that the massage was merely a subterfuge for offers of sexual favors for money.

Instead, the legal analysis in this case rests more properly on what was agreed to between the officer and defendant in exchange for the stated $50 fee. The trial court chose to believe the officer’s version of events over that of defendant, and we will respect its determination of credibility. The complaining officer testified that when she called, the man she identified as defendant told her that the mas-: sage was a full body massage that lasted one hour and cost $50. Defendant told her he was available at 1 p.m. However, she sought to clarify what was included in the massage by asking him if there would be any “release.” According to her testimony, he replied “yes, sure” but he would not discuss the matter further over the telephone. Both Zydowski and defendant testified that “release” meant masturbation, and there is no ambiguity regarding the term’s meaning between the parties.

When Zydowski arrived at the salon, she again stated clearly that she wanted a sexual “release” through masturbation. The salon contained pictures of couples engaging in sexual intercourse apparently making the ambiance conducive to such activity. Although defendant expressed his concern that she might be a police officer, he nevertheless told her to get up on the table and they would “have some fun.” She could pay him the $50 later.

On cross-examination, she again explained that she asked defendant if he would masturbate her. She said that she was tense, that she would like to “come,” and the only way that she could “come” was through massage that included masturbation. After this request, defendant stated that the price was $50.

We believe that, from the totality of the circumstances, the trial court could reasonably infer that the masturbation was included in the $50 price. The officer’s counterproposal was accepted by defendant. In response to the officer’s query on two occasions, first on the telephone and then at the salon, by his words and conduct in the context of the surrounding circumstances, defendant implicitly assented to a sexual act for a sum of money. (See People v. Johnson (1978), 60 Ill. App. 3d 183, 191; see also State v. Bennett (Minn. 1977), 258 N.W.2d 895, 897.) Defendant’s agreement to the officer’s request was manifested by his saying “yes, sure” when she asked over the telephone if there, would be a “release.” After a similar request at the salon, he responded by telling her to get on the table where they would “have some fun” and that she could pay him the $50 later.

While the prostitution statute prohibits a person from offering or agreeing to an act of sexual conduct for money for the purpose of sexual arousal or gratification, the statute does not require a completed act of sexual conduct. Because it proscribes activity that may be described as inchoate, the statute is likely to be applied to conduct that is to some degree ambiguous. See Bennett, 258 N.W.2d at 897.

There are two competing principles present in this type of situation. First, to prevent circumvention of the statute, the offer or agreement need not be express or in the language of the statute, but may be implied from the words and actions of the defendant taken in context. Second, in this type of situation, the danger exists that the defendant’s offer or agreement may be innocent or ambiguous. (See Bennett, 258 N.W.2d at 897.) Of course, the overriding standard to be applied is that, to sustain the conviction, the evidence must demonstrate beyond a reasonable doubt that defendant’s intent was to engage in an act of sexual conduct for money. We think the evidence is sufficient here, although the State’s case could have been better developed.

Viewing all the evidence in the light most favorable to the State, we believe that the trial court, as the trier of fact, could properly find beyond a reasonable doubt that defendant agreed to engage in sexual conduct for money and that it was understood between the parties after negotiations that the $50 price included masturbation. This is so despite defendant’s attempts to agree to the officer’s proposition discretely or even tacitly.

We do not view the agreement here as a separate, after-the-fact agreement to provide sexual favors gratuitously following the performance of a legitimate service. The facts in this case are even more conducive to a finding of guilt than those considered by the majority in Austin because, here, the undercover officer did initially “negotiate” a sexual “release” as part of the price of the massage. It was not necessary to allocate a specific amount of the total fee to the sexual aspect of the transaction.

Based on the particular facts of this case, we affirm the judgment of the circuit court of Du Page County.

Affirmed.

UNVERZAGT and QUETSCH, JJ., concur.