author: JUSTICE BILANDIC

text:
    RUTH SCHUMACHER, Special Adm’r ex rel. Estate of Peter Bright-Asare, Plaintiff-Appellee and Cross-Appellant, v. CONTINENTAL AIR TRANSPORT COMPANY, INC., subsequently known as Parmelee Transportation Company, Defendant-Appellant and Cross-Appellee.
    First District (2nd Division)
    Nos. 1 — 89—0897, 1—89—1454 cons.
    Opinion filed September 28, 1990.

      James T. Ferrini, Richard R. Winter, and Edward M. Kay, all of Clausen, Miller, Gorman, Caffrey & Witous, P.C., of Chicago, for appellant, on appeal only.
    William M. Stevens, Jill M. Rappis, and Rebecca Carlins, all of Rooks, Pitts & Poust, of Chicago, for appellee.
   JUSTICE BILANDIC

delivered the opinion of the court:

After a jury trial, judgment was entered in favor of plaintiff, Dr. Peter Bright-Asare, and against defendant, Continental Air Transport Company, Inc. Damages for plaintiffs personal injuries were assessed at $7,746,200. Defendant appealed. Plaintiff died on April 24, 1990, while this appeal was pending. On May 29, 1990, we entered an order substituting Ruth Schumacher, special administrator ex rel. estate of Dr. Peter Bright-Asare, as the party plaintiff.

Plaintiff alleged that defendant’s notice of appeal was not timely and moved to dismiss this appeal. We denied plaintiffs motion. Thereafter, plaintiff filed a cross-appeal challenging the jurisdiction of this court to consider defendant’s appeal.

PLAINTIFF’S CROSS-APPEAL

First we will consider the jurisdictional issue. Plaintiff contends that this court lacks jurisdiction to hear this appeal since the notice of appeal was not filed within 30 days from the entry of the judgment, or within 30 days from the trial court’s ruling on a timely post-trial motion.

On December 14, 1988, the jury returned a verdict for plaintiff and the court entered judgment on that verdict. The judgment was entered in the trial court’s minute book on that same day. The trial court did not require the parties to submit a written form of judgment order.

On December 15, 1988, plaintiff’s counsel appeared ex parte, but with defense counsel’s consent, and presented a written judgment order. The trial judge stated, “I don’t need this.” Plaintiff’s counsel explained that he would like a written order for his file so the court directed the minute clerk to stamp the order. Plaintiff claims that the court directed the clerk to enter the order nunc pro tunc to December 14, 1988, and that since the clerk had already stamped the order December 15, the clerk changed the date on plaintiff’s counsel’s copy but not on the written judgment order filed with the court. The trial court’s minute book for December 15 shows that the “case was disposed of 12/14/88.” Nothing was said to indicate that this was intended to amend the judgment entered in the law record book.

Plaintiff concedes that if this court finds that the judgment was entered on December 15, then defendant’s post-trial motion is timely. If this court finds that the judgment was entered on December 14, then defendant’s post-trial motion was not timely. It is undisputed that the notice of appeal was filed within the statutory time following the disposition of the post-trial motion.

We find that plaintiff is estopped from denying that the written order is the judgment in this case and not merely superfluous. Plaintiff’s counsel never told defense counsel that he was having the written order entered nunc pro tunc to December 14, 1988. Defense counsel believed that the written order would take the place of the December 14 entry and would constitute a judgment under Rule 272 (87 Ill. 2d R. 272). A party whose conduct contributes to or causes another to commit an irregularity in a judicial procedure cannot later use the irregularity to his advantage. See In re Rauch (1977), 45 Ill. App. 3d 784, 359 N.E.2d 894.

In Schmidt v. Cenacle Convent (1967), 86 Ill. App. 2d 150, 229 N.E.2d 413, appeal denied (1968), 37 Ill. 2d 626, the appellate court held, in circumstances very similar to this case, that the plaintiff was estopped from challenging the timeliness of the defendant’s post-trial motion. The jury verdict had been returned and judgment entered on June 30. On July 1, plaintiff mailed a judgment order to the court requesting that it be entered. The court entered the order on July 6. Defendant ascertained this date and filed its post-trial motion within 30 days thereafter. The appellate court held that even though the plaintiff had not intended to mislead the defendant, the written judgment order had that effect.

“Without impugning the motives of anyone, we hold that plaintiff must be estopped to assert any date other than July 6, 1966, as the effective date of the judgment.” 86 Ill. App. 2d at 157.

We therefore conclude that the plaintiff is estopped from challenging this appeal based upon timeliness because the written order had the unintentional effect of misleading defendant.

DEPENDANT’S APPEAL

On May 14, 1980, plaintiff instituted this action for damages against defendant. Plaintiff’s second amended complaint alleged that on November 25, 1979, defendant owned and operated a bus service as a common carrier for hire. On that date plaintiff was a fare-paying passenger. The complaint further alleged that the defendant owed plaintiff the highest duty of care and violated that duty when its driver negligently caused the bus to crash into a cement abutment, that plaintiff sustained serious and permanent personal injuries as a direct and proximate result of defendant’s violation of its duty and that defendant is liable to plaintiff for damages.

Defendant’s answer to plaintiff’s complaint, filed June 30, 1980, admitted that it owned and operated the bus involved in the collision and denied all other allegations, including those of negligence, causation and damages.

Approximately 8V2 years after plaintiff initiated this action, the case was called for trial. On the eve of trial, defendant admitted negligence but continued to deny that plaintiffs condition of ill-being was proximately caused by the accident of November 25,1979.

With this admission of negligence, it is undisputed that plaintiff would be entitled to, at least, nominal damages. Plaintiff became afflicted with inflammatory pneumonitis, a restrictive lung disease involving the progressive destruction of lung capacity and right heart failure. This resulted in severe and permanent physical disability and substantial reduction of plaintiffs life span. The principal issue at trial was the causal connection between this condition and the accident for which defendant accepts responsibility.

To support his case, plaintiff presented evidence to show that he was exposed to a dangerous amount of diesel fuel at the scene of the accident. Then plaintiff presented evidence of medical symptoms which appeared from the time of the accident up to the time that he testified at trial. His treating physicians, who are also admitted medical experts, testified that there is a causal connection between plaintiff’s condition and the accident.

During trial, defendant sought to discredit plaintiff by confronting him with statements that plaintiff allegedly made to a medical intern at Michael Reese Hospital in February of 1980. Plaintiff denied making such statements and indignantly stated that if the intern worked for him, he would have discharged the intern. Having set the foundation for impeachment, defendant failed to follow through. Defendant did not offer the testimony of the intern and did not offer any medical records allegedly prepared by that intern.

Except for attempts to use the unadmitted references to the Michael Reese records, defendant did not seriously challenge the expert medical testimony of plaintiff’s witnesses. The defense did not offer any expert medical evidence to contradict the evidence offered by plaintiff. The only witness presented by the defense was Elsworth Cobble, a paramedic who arrived at the scene shortly after the accident. Defendant also attempted to obtain a continuance to produce a witness who was not included on defendant’s witness list. Defendant’s request was denied.

To place this appeal in proper perspective, a brief review of the evidence is appropriate.

Plaintiff testified that he was born in Ghana in 1938 and was one of two students in the entire country selected on the basis of an annual competitive examination to study abroad on a Commonwealth Scholarship. Plaintiff was sent to Dalhousie Medical School, Canada, where he received an M.D. degree in 1967 and a master’s degree in biochemistry. In 1971, plaintiff went to Yale University, New Haven, Connecticut, where he received training in pediatric gastroenterology and received the top prize for research. Plaintiff is board certified in internal medicine and gastroenterology and licensed to practice medicine in Illinois, California and Nova Scotia, Canada.

In May 1979, plaintiff presented a scientific paper at an international medical meeting in New Orleans. Dr. Leonidas Berry heard plaintiff’s presentation and invited plaintiff to interview for the position of head of the department of gastroenterology at Cook County Hospital, Chicago, Illinois.

After a number of interviews with the hospital’s administrative and department heads, plaintiff accepted the position. On the evening of November 25, 1979, at approximately 8:30 p.m., plaintiff arrived at O’Hare Airport, Chicago, to commence his job as department head of Cook County Hospital the following day. Plaintiff paid his fare and boarded defendant’s bus, which proceeded along the Kennedy Expressway toward the Chicago Loop. The pavement on the expressway was wet and slippery, due to freezing rain. Defendant’s bus was travelling at an excessive speed, fishtailed, careened into a cement abutment and came to a dead stop.

Other witnesses testified that the bus was damaged so severely that it was not repaired, but was declared a total loss by defendant.

Defendant’s bus holds 60 gallons of diesel fuel No. 2. The bus’ engine is mounted in the rear, and the diesel fuel tank is located in front of the engine. The diesel fuel tank is connected to the engine by two 41/2-foot-long flexible lines. The fuel is pumped into the engine by a fuel pump. As a result of the impact, the bus’ engine shifted and these fuel lines were completely severed at the point where they attach to the engine. The fuel tank ruptured and diesel fuel spilled from it. The bus’ engine continued to run following the crash.

After the impact, there was complete pandemonium inside the bus. Passengers could be heard crying and screaming. Elsworth Cobble, a paramedic who arrived at the scene after the accident, testified that, although he himself did not smell diesel fuel inside the bus, when he first entered the bus an unidentified passenger came up the aisle saying, “My face is burning, my face is burning.” Elaine Knoth, a passenger on the bus, testified that immediately after the crash there was a “very strong” smell of diesel fuel inside the passenger compartment, and someone yelled “Oh, my God, I smell gas!” Ms. Knoth climbed out of an emergency window of the bus and observed a puddle of diesel fuel on the ground “underneath the rear of the bus [where] it was spilling out.” The puddle of diesel fuel extended out from under the side and rear of the bus. At first Ms. Knoth was able to climb out the window of the bus without stepping in the puddle, but the puddle got larger and, later, she could not walk to the rear of the bus without stepping around the puddle.

Defendant’s superintendent of maintenance, Edward Vanderheyden, was called by the plaintiff as a witness and testified that he smelled diesel fuel when he arrived at the bus about V-k hours after the accident. In the interim, the bus had been towed to an off-ramp some distance from the scene of the accident. When Mr. Vanderheyden was inspecting the bus for damage, diesel fuel was still coming from underneath the bus and there was a puddle of diesel fuel mixed with rain that was approximately two inches deep. Mr. Vanderheyden testified that his shoes got so saturated with diesel fuel during his inspection of the bus that he had to throw them away when he got home that night.

Like Ms. Knoth, plaintiff also climbed out of the bus’ emergency window. Plaintiff stood for a time next to the window, aiding the other passengers climbing out of the bus. Thereafter, plaintiff testified that he walked to the front of the bus, stood for awhile on the embankment, and then walked back to the rear of the bus to help more passengers climb out. While standing at the rear of the bus, plaintiff noticed the heavy smell of diesel on himself. His hands were covered with diesel as if he had dipped them in it. His face and lips were covered with diesel and he had diesel fuel in his mouth. Although plaintiff was wearing a parka, he testified that his hair and his suit were also covered with diesel. His shoes were wet and his socks were sticky. Plaintiff testified that it was as if he had jumped into a container of diesel fuel.

Plaintiff flagged down a passing motorist, Ms. Nunn, who drove him to the Karl Meyer Residence Hall of Cook County Hospital. Once at the residence hall, plaintiff called Dr. Berry, informed Dr. Berry that he was involved in an accident, and told Dr. Berry that he felt as if he was running a slight fever and was short of breath. Plaintiff then took two consecutive baths to remove the diesel fuel from his body. After taking the first bath, plaintiff noticed that the bathwater had turned black. While taking the second bath, plaintiff noticed that there were puddles of oil on the surface of the bathwater. Plaintiff went to bed feeling feverish and short of breath, with a slight cough that worsened during the night. These symptoms persisted the next day.

Mrs. Rose Pero, a friend of plaintiff, testified that she received a telephone call between 9 and 10 p.m. on November 25 from plaintiff, who asked her if she would bring his suit to the dry cleaners the following day. Mrs. Pero testified that plaintiff’s suit was in a plastic bag, had dark spots on it that looked like grease, and smelled like petroleum.

On the morning of November 26, 1979, plaintiff was examined by Dr. Berry. At trial, Dr. Berry testified that he received his M.D. from Rush Medical School of the University of Chicago in 1930 and a master’s degree in pathology from Illinois Medical School in 1933. He has been involved in the private practice of internal medicine for 50 years and was an attending physician at Michael Reese Hospital, Cook County Hospital and Provident Hospital from 1963 to 1980. Dr. Berry is board certified in internal medicine and gastroenterology and specializes in the pathology of the lung. Dr. Berry is credited with inventing the first direct vision gastroscope.

Dr. Berry’s initial examination of plaintiff indicated that he had a fever, a cough and shortness of breath. Plaintiff related to Dr. Berry the fact that he had been involved in a bus accident the night before and that he had been covered with diesel fuel.

Dr. Berry continued to treat plaintiff on a weekly basis. Dr. Berry testified that he had occasion to view X rays of plaintiff’s chest taken after plaintiff was involved in a minor car accident on May 4, 1979, six months prior to the bus accident of November 25, 1979. These X rays showed that plaintiff’s lungs were normal as of that date. Three days after the bus accident, on November 28, 1979, plaintiff had a chest X ray taken which disclosed the presence of fluid on his lungs and a slight inflammation. X rays taken of plaintiff’s chest on January 23, 1980, disclosed increased inflammation of plaintiff’s lungs. Another set of X rays, taken on February 11, 1980, showed increased inflammation of plaintiff’s lungs, inflamed or blotted out air sacs and the beginnings of scar tissue. Dr. Berry testified that infiltrates in plaintiff’s lung fields had occurred since the previous X rays were taken.

During the next few weeks following the accident, plaintiff lost 40 pounds, experienced shortness of breath even while at rest and could not walk across the room without coughing up phlegm.

Dr. Berry described plaintiff, prior to the bus accident, as being a very robust individual. Dr. Berry recalled that during plaintiff’s initial interviewing visits to Cook County Hospital, plaintiff walked so fast that Dr. Berry had a difficult time keeping up with him.

When plaintiff’s condition did not improve, Dr. Berry had him admitted into Michael Reese Hospital on February 21, 1980, for an open lung biopsy. The lung biopsy disclosed the presence of a considerable amount of fluid in plaintiff’s lungs. The biopsy showed that there was an unusual “interstitial pneumonia with scarring secondary to this pneumonia.” While at Michael Reese, plaintiff was placed on Prednisone, a cortisone preparation to relieve some of the side effects of his disease. Because Prednisone causes water retention, plaintiff was also placed on Lasix, a drug which removes excess fluid from the body.

Dr. Berry testified that it was his medical opinion that plaintiff was suffering from a chemical pneumonia and pneumonitis, a restrictive injury to the lungs’ air sacs, which destroyed 66% of his lung capacity. The injury to plaintiff’s air sacs obstructed the passage of oxygen through the lung tissue into plaintiff’s arterial blood system. Dr. Berry testified that it was his expert opinion, based upon a reasonable degree of medical certainty, that this condition is a direct result of plaintiff’s exposure to diesel fuel after the bus accident of November 25, 1979. Dr. Berry further testified that a few teaspoons of diesel aspirated into the lungs was enough to cause this condition. Dr. Berry concluded that some of the diesel fuel on plaintiff’s lips and in plaintiff’s mouth was swallowed. The diesel fuel on plaintiff’s body was absorbed through his skin and aspirated directly into his lungs. Dr. Berry testified that, on the basis of his frequent personal observations of plaintiff during the six-month period prior to the bus accident, the pre- and post-occurrence X rays, the laboratory tests, the lung biopsy, the clinical findings and the history which he and plaintiff’s other treating doctors had taken, there was no way plaintiff’s condition could have predated the bus accident.

While plaintiff was on the witness stand, defense counsel attempted to cross-examine him regarding a medical history purportedly given by plaintiff to an intern upon his admission to Michael Reese Hospital in February 1980. Defense counsel asked plaintiff whether he told the intern that he had been experiencing shortness of breath for six months, whether plaintiff first noted shortness of breath last summer vacationing at a national park in Nova Scotia, whether pulmonary restrictions further progressed in November 1979 as a result of a motor vehicle accident in which he inhaled diesel fumes and whether plaintiff had been exposed to a parakeet at the time of the onset of the illness. Plaintiff denied making any of these statements. Plaintiff then stated that, “If this intern worked for me, I would fire her, honestly.”

During its case in chief, the defense did not follow through on this attempt to impeach plaintiff. Neither the intern nor any record prepared by the intern was presented to contradict plaintiff.

In the fall of 1980, plaintiff was referred for treatment to Dr. Richard Mark Cullen, a specialist in pulmonary chemical injuries. Dr. Cullen is a professor of medicine and pulmonary epidemiology at Yale University Medical School. Dr. Cullen graduated from Harvard University and received his M.D. from Yale University School of Medicine. Dr. Cullen is board certified in internal medicine, has reviewed the medical literature on the relationship of mineral oils to lung disease and has published 30 articles in medical journals on such subjects as pulmonary injuries due to oil mist exposure. Dr. Cullen is well known for his research on the effects of diesel fuel and petroleum products on the lungs.

On October 15, 1980, Dr. Cullen performed a complete physical examination of plaintiff. Plaintiff told Dr. Cullen that he had been involved in a bus accident and had been exposed to diesel fuel. In addition to the physical examination, Dr. Cullen reviewed plaintiff’s X rays, biopsy slides and laboratory studies and found bilateral scarring of plaintiff’s lungs which had caused increased pressure in the right heart. Like Dr. Berry, Dr. Cullen testified that it was his medical opinion that plaintiff was suffering from inflammatory pneumonitis. Dr. Cullen stated “In retrospect, there can be little doubt about the cause of this crippling, nearly fatal disease. The suddenness of onset, the previously normal X-ray and the biopsy showing a uniform injury of a single age, prove that this illness was caused by a single onset which must have occurred just prior to the onset of his symptoms. The conclusion, inescapable, is that the illness was indeed caused by the toxic exposure to diesel oil during the motor vehicle accident which preceded its onset.”

By 1981, plaintiff was experiencing increased shortness of breath, persistent coughing, frequent lung infections and swollen ankles and feet, which evidence congestive heart failure, and there was so little oxygen getting to plaintiff’s tissues that his lips and eye conjunctiva had turned blue.

In March 1982, plaintiff was admitted to the intensive care unit at Mayo Clinic with partial failure of the right heart, caused by the scarring of plaintiff’s lung tissue. This scarring also caused enlargement of plaintiff’s liver, swelling and edema of plaintiff’s feet and ankles to twice their normal size, high fever and lung function of 35% the normal rate.

At the Mayo Clinic, plaintiff was treated by Dr. Dennis Córtese. At trial, Dr. Córtese testified that he received his M.D. from Temple Medical School in 1970 and graduated from Mayo Graduate School of Medicine in 1972 with a specialty in internal medicine. Dr. Córtese was the director of the pulmonary disease training program at the Mayo Clinic from 1982 to 1987. Dr. Córtese is board certified in internal medicine and pulmonary diseases. Dr. Córtese testified that he has treated other patients who have had the same condition as plaintiff.

Dr. Córtese was informed of plaintiff’s history regarding the bus accident and his exposure to diesel fuel. Plaintiff has been under the care of Dr. Córtese from this initial stay at the Mayo Clinic until the time of trial.

Plaintiff remained at the Mayo Clinic for a period of approximately three weeks. A biopsy of plaintiff’s lung, taken on March 31, 1982, showed “chronic interstitial pneumonitis with moderate fibrosis and mild chronic inflammation.” X rays taken of plaintiff’s chest at that time showed enlargement of the heart, heart failure and pulmonary venous hypertension.

At trial, Dr. Córtese testified that the oxygen level in plaintiff’s arteries while plaintiff is at rest is below the oxygen level in a normal person’s veins and that the oxygen in plaintiff’s arteries at exercise is what a normal person should have at rest. He testified that in September 1988, the most recent examination Dr. Córtese conducted on plaintiff prior to trial, plaintiff had the lowest arterial oxygen level both at rest and at exercise at any time since his initial exam in 1982.

Dr. Córtese testified, in his medical opinion, based upon a reasonable degree of medical certainty, that although interstitial pneumonitis may have many different causes, plaintiff’s condition “is causally related to the exposure to the diesel fumes and hydrocarbons in that accident in ’79.”

All three of plaintiff’s treating doctors testified that they did not think plaintiff’s condition would improve. Plaintiff’s lung condition, interstitial pneumonitis, had caused a terminal heart condition. The scarring of plaintiff’s lung fields obstructs the passage of oxygen into plaintiff’s blood, the low level of oxygen in plaintiff’s blood increases the pressure on plaintiff’s right heart, and this increased pressure causes right heart failure. When the heart begins to fail, venous blood coming into the heart cannot be pumped out and the lack of oxygen results in the death of the cells of the heart muscle.

Plaintiff’s continued existence required that he have supplemental oxygen eight hours each night as well as during the day to prevent complete heart failure. The overworking of plaintiff’s heart would require him to take supplemental oxygen for the rest of his life. Both Drs. Berry and Cullen testified that, in their medical opinions, the complication of heart failure resulting from plaintiff’s condition would eventually kill plaintiff. Plaintiff’s condition is irreversible.

The drug, Prednisone, which plaintiff had taken since March 1980, caused plaintiff to develop diabetes. Lasix, which plaintiff took to reduce the water retention caused by Prednisone, had resulted in plaintiff’s loss of bladder control, and caused him to urinate in his pants as often as two or three times per week.

Dr. Berry, who was plaintiff’s original treating physician, professional colleague and the person who recruited him to accept the Cook County Hospital position, also testified that plaintiff had

“exceptional skills and ability and a great future, not only as a doctor, but a man of unusual capacity, compassion ***. If he were a man with European ancestry, he would be of the stature of Albert Schweitzer.”

The physical requirements placed on a gastroenterologist while performing a gastroscopy are many. For this reason and because of the risk involved to both doctor and patient during a gastroscopy, plaintiff engaged in private practice as a gastroenterologist for the last time on November 25, 1979, the day of the bus accident. Plaintiff engaged in the private practice of medicine from 1972 until the bus accident and earned $200,000 per year during the two years prior to the accident.

Plaintiffs employment contract with Cook County Hospital provided that plaintiff would be a senior physician and could engage in private practice in addition to his administrative duties. Plaintiffs salary as chief of the department of gastroenterology at Cook County Hospital, which was initially $58,000, increased to $85,000 by December 1982, and took into account that he could also engage in private practice.

In December 1982, plaintiff began employment at UCLA Medical Center, Los Angeles, California, and earned a salary of $100,000 per year. One year later, he became acting chief of gastroenterology and earned the same salary. Plaintiffs duties at UCLA Medical Center were entirely administrative, with no responsibility for patients, procedures and research. Plaintiff earned an additional $50,000 in 1986 and 1987 as a consultant. However, in 1988, plaintiff earned only an insignificant amount acting as a consultant.

Plaintiff testified that he had personal knowledge of the salary range of gastroenterologists at the time of trial in Los Angeles and other areas of the country. He testified that the salary for gastroenterologists in Los Angeles ranged from $150,000 for a doctor who has just finished training to $400,000 to $500,000 for a doctor who has practiced gastroenterology for 10 to 15 years.

At the close of the trial, the jury returned a verdict in favor of plaintiff, assessing plaintiff’s damages in the amount of $7,746,200. The trial court entered judgment on the verdict and denied defendant’s motion for a judgment notwithstanding the verdict.

I

Defendant’s principal argument on appeal is that the trial court committed reversible error by denying defendant’s motion for judgment notwithstanding the verdict.

The standard of review for denial of a motion for judgment notwithstanding the verdict is well established. A judgment notwithstanding the verdict can only be granted where all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504.

Defendant’s threshold argument is that plaintiff failed to present evidence to explain how he was exposed to enough diesel fuel to justify the jury’s conclusion that plaintiff developed inflammatory pneumonitis as a result of the bus accident of November 25,1979.

Applying the Pedrick standard, after a careful review of the evidence, we conclude that the trial court correctly denied defendant’s motion for judgment notwithstanding the verdict.

Defendant’s theory is that plaintiff, as a medical expert, sought to take advantage of the accident to blame defendant for his medical condition. This argument must fail because there is sufficient evidence to demonstrate the total destruction of the bus, the rupture of the 60-gallon diesel fuel tank, the spilling of diesel fuel and plaintiff’s exposure to the fuel.

Plaintiff’s symptoms commenced on the evening of the accident and continued uninterrupted to the time of trial. His prior robust physical condition is undeniable. His loss of 40 pounds within weeks of the accident is not contradicted. His preaccident and post-accident X rays corroborate the causal connection between the accident and plaintiff’s condition of ill being. Plaintiff sought and obtained the best medical treatment in an effort to be cured and prolong his useful life and promising career.

Defendant’s attempt to portray plaintiff as an opportunist who really wasn’t exposed to diesel fuel was heard by the jury and not accepted. The jury was properly instructed on causation and followed the instructions.

In addition, the defense sought to portray an alliance between plaintiff and Dr. Berry to diminish the credibility of both and support defendant’s attempt to show that there was no medical causation. The jury heard this argument and rejected it. Plaintiff’s other treating physicians, like Dr. Berry, had unimpeachable professional credentials. Their testimony remained uncontradicted.

Defendant’s strongest attempt to establish lack of causation was the failed attempt at impeachment of plaintiff. Ramseyer v. Illinois Central R.R. Co. (1969), 110 Ill. App. 2d 95, 98, 249 N.E.2d 120.

The Pedrick standard makes it difficult for defendant to meet its burden to set aside plaintiff’s verdict. After a careful review of the evidence, we conclude that defendant failed to meet its burden. Therefore, the trial court did not err when it denied defendant’s motion for judgment notwithstanding the verdict.

II

Next, defendant argues that if its motion for judgment notwithstanding the verdict is denied, it is entitled to a new trial because the damages awarded to plaintiff are excessive and the result of sympathy and prejudice. We disagree.

The jury was given a general verdict form which it returned. Defendant did not object to the general verdict form, did not tender any alternate special verdict form and did not submit any special interrogatories to the jury.

The court does not have a duty to submit separate forms of verdict, but, rather, a party must make a motion for the court to direct the jury to find separate verdicts, and a party who fails to do so waives its right to object on appeal regarding such an omission. (Beccue v. Rockford Park District (1968), 94 Ill. App. 2d 179, 196, 236 N.E.2d 105, appeal denied (1969), 39 Ill. 2d 625.) Where there is a general verdict, and more than one theory has been presented, the verdict will be upheld if there was sufficient evidence to sustain any one theory. See Witherell v. Weimer (1987), 118 Ill. 2d 321, 329, 51 N.E.2d 68; Stark v. D & F Paving Co. (1977), 55 Ill. App. 3d 921, 928, 371 N.E.2d 315.

The test of whether a verdict is excessive is whether the total amount of the verdict falls within the necessarily flexible limits of fair and reasonable compensation or is so large as to shock the judicial conscience. King v. City of Chicago (1978), 66 Ill. App. 3d 356, 359, 384 N.E.2d 22.

Plaintiff was an enormously gifted and talented individual who overcame considerable obstacles to obtain an excellent education. His professional career was marked with successive impressive accomplishments. He was vigorously recruited for the important position at Cook County Hospital, which he was about to undertake when the accident occurred.

He was young, physically robust and on the threshold of unlimited professional success. He was deprived of his physical vitality, unable to pursue his profession and unable to enjoy an existence free of pain and physical disability. His earning capacity was substantially diminished.

It is not necessary to repeat the details of the evidence dealing with the specific elements of damages suffered by plaintiff. They have been sufficiently detailed elsewhere in this opinion. The verdict of the jury awarding plaintiff damages in the sum of $7,746,200 is reasonable under the facts of this case and is not so large as to “shock the judicial conscience.”

Defendant’s argument about plaintiff’s improper use of charts and reference to plaintiff’s reduced life span, even if correct, are not of such a nature as to overcome the substantial evidence of damages suffered by plaintiff.

We therefore conclude that, based upon the record, the verdict is proper.

Ill

Defendant’s final assignment of error is that the court abused its discretion in denying its motion for a continuance to present the testimony of Ms. Nunn, the passing motorist who drove plaintiff to the residence hall on the night of the bus accident.

To determine whether the trial court abused its discretion, a reviewing court must balance the interest in the prompt disposition of cases with the equally compelling interest in attaining justice. Jack v. Pugeda (1989), 184 Ill. App. 3d 66, 539 N.E.2d 1328, appeal denied (1989), 127 Ill. 2d 617.

Through discovery, defendant had been aware of Ms. Nunn’s status as a post-occurrence witness since 1980. Although aware of her existence for 8^2 years, defendant did not interview Ms. Nunn, nor take her deposition. In response to interrogatories filed three days before trial, defendant did not list Ms. Nunn as one of its witnesses. At trial, defendant informed the court that the only testimony it was going to present was the deposition transcript of Elsworth Cobble, the paramedic. It was only on the sixth and final day of trial that defendant first attempted to secure the appearance of Ms. Nunn as a defense witness. Based upon these facts, we conclude that the trial court did not abuse its discretion in denying defendant’s motion for a continuance to present the testimony of Ms. Nunn.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

HARTMAN and SCARIANO, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SCARIANO

license: Public Domain

text:
    LOCAL 786, International Brotherhood of Teamsters, Plaintiff-Appellee and Cross-Appellant, v. GLENVIEW MATERIAL COMPANY, Defendant-Appellant and Cross-Appellee.
    First District (2nd Division)
    No. 1 — 89—1692
    Opinion filed September 28, 1990.
    Karl W. Grabemann and Timothy L. Moorehear, both of McDermott, Will & Emery, of Chicago, for appellant.

      Anthony Pinelli, of Chicago, for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendant-appellant Glenview Material Co., Inc. (Glenview), appeals from a decision of the circuit court upholding an arbitrator’s ruling that it violated its collective bargaining agreement with Local 786, International Brotherhood of Teamsters (union), in laying off James Richardson. Plaintiff-appellee union also cross-appeals from the circuit court’s affirmance of the ruling of another arbitrator that Glenview did not violate the same collective bargaining agreement by laying off Robert Mathe, also a Glenview employee, who was dismissed under similar circumstances. We affirm the circuit court’s decision upholding both awards.

The record establishes that Glenview sells and distributes building materials and, prior to March 1984, owned and operated 18 or 19 trucks of various kinds. It is undisputed that Glenview was in severe financial difficulty and suffered substantial losses in its fiscal years of 1982 and 1983. As a result, in the spring of 1983, Glenview’s president, Gregory Stys, proposed to the union that Glenview be permitted to operate under an owner-driver system, whereby its trucks would be sold to employees and third-parties, who would then do the company’s deliveries. Although the parties never reached agreement on the proposal, on February 24, 1984, a new collective bargaining agreement between the union and Glenview was concluded for the period July 1, 1983, through June 30, 1986, which did contain a series of provisions “covering” owner-drivers “within the terms and conditions of this agreement, including union security, hours, wages, overtime, health and welfare and pension and working conditions.” The agreement also reserved to Glenviéw “the right to control the manner, means and details of and by which such Owner-Driver performs his services.”

Shortly thereafter, Stys began to sell the company’s trucks, three of them for cash to third parties, and later two more to third parties on the installment plan, but the great majority were sold to its own employees, also on an installment basis. Glenview provided varying amounts of financial assistance to the employee purchasers, and agreed to pay a set amount as wages, operating expenses, insurance payments, and pension contributions. A document entitled “New Broker Guidelines” was prepared by Stys and given to all owner-drivers, which addressed such matters as seniority, vacations, and pension contributions. The record is not clear as to whether these guidelines were fully enforced, but it appears that they provided for lesser benefits compared to those specified in the collective bargaining agreement, a practice specifically prohibited by the owner-driver provisions of the agreement. Further, owner-drivers were not restricted to haul exclusively for Glenview.

Robert Mathe was employed as a truck driver by Glenview from 1972 until May 11, 1984. On or shortly before that date, he was approached by Stys and told that if he did not purchase the truck which he was driving, he would be laid off. When he refused to do so, he was laid off. At that time, Mathe was the least senior driver. His truck was sold to a third party, who then became an owner-driver for Glenview. Another Glenview employee, Richard Huber, also refused to buy his truck from the company and was laid off in December 1984. The men who replaced the drivers who refused to buy their trucks, including Mathe, were adjudged not to be independent contractors in a previous arbitration.

James Richardson’s case is similar to Mathe’s. At the time he was laid off in May 1984, Richardson was the least senior Glenview employee, although he had worked in the plant for 13 or 14 years. Richardson was asked to purchase his assigned truck, but he was not told that he would be laid off if he did not agree with the proposal. Nevertheless, because he refused to purchase the truck he was laid off. Although the record is not clear on the precise dates, a new driver, Richard J. Kenyon, hired immediately after Richardson’s dismissal drove Richardson’s truck for a period of either two weeks, according to Glenview’s owner’s testimony, or eight months, according to Kenyon’s testimony, before he was made and accepted an offer to become an owner-driver.

Grievances were filed by both employees, and their cases were referred for binding arbitration pursuant to the terms of the collective bargaining agreement when the parties could not resolve their differences. The union argued before arbitrator Albert A. Epstein that Mathe’s layoff violated the bargaining agreement in that Mathe was laid off because of his failure to buy the truck from Glenview and not because there was insufficient work for him to perform; thus, Glen-view disregarded the seniority provisions of the agreement by replacing Mathe with another employee to perform the same work he had been doing and paying his replacement less than he would have had to pay Mathe. The union further charged that Glenview’s truck buy-back “scheme” amounted to a leasing device to evade the agreement and that it was motivated by antiunion animus. These arguments were rejected on the ground that Glenview had legitimate financial concerns, and that the “controlling factor in the instant dispute is that” the owner-driver provisions of the agreement gave Glenview the right to “insist that all employees, including the Grievant, had to operate under the owner-driver system and if an employee desired not to avail himself of that opportunity he faced the elimination of his work.” Arbitrator Epstein specifically stated that he found no basis for the contention that Glenview was attempting to avoid the terms of the agreement. “The fact that a previous arbitration award in which the owner-drivers were held to be employees of the company,” Mr. Epstein stated, “relates only to the employment relationship between the parties [which] does not affect the company’s right to operate under an owner-driver system.” He thus concluded that Mathe’s layoff was not in violation of the collective bargaining agreement.

A markedly different conclusion was reached by arbitrator Alex Elson, who conducted the arbitration regarding Richardson’s layoff. After first rejecting the union’s contentions that Glenview was attempting to evade the agreement through its use of the truck buyback plan and that the employer had violated a provision in the contract dealing with subcontracting, Mr. Elson held that “the undisputed facts establish a violation of the seniority provisions of the agreement. The company operated on the assumption, in no way supported by the collective agreement, that the purchase of a truck was a condition precedent to employment with the Company ***. Nor does it provide that a condition to continued employment for an employee is an agreement that they purchase a truck from the Company and become an owner-driver ***. It is true,” Arbitrator Elson continued, “that [the agreement] gives the Company *** the right to engage ‘owner-drivers’. Owner-Drivers have been used in the trucking industry for many years but within the context of agreements, such as the agreement in this case, which protect the seniority rights of employees who are not ‘owner-drivers.’ ” Arbitrator Elson ordered Glenview to reinstate Richardson with back pay notwithstanding that Glenview had sold all of its trucks to owner-drivers, emphasizing that Glenview had violated both his seniority and recall rights, that there was nothing in the agreement “which gives to owner-drivers super-seniority over employees who are not owner-drivers,” and that business necessity is not grounds for violating a collective bargaining agreement. While expressing his “sympathy” for Glenview’s “plight,” Mr. Elson stated that “that is beside the point. My arbitral authority is limited to the interpretation and application of the collective bargaining agreement of the parties. My duty requires me to be faithful to the agreement. That agreement makes no allowance for ‘business necessity’ as a credible defense for violation of the agreement when the agreement is silent on the matter.” Mr. Elson went on to distinguish Mathe’s layoff by stressing that “the hiring [of Kenyon] belies the contention of the Company that there was no work for the grievant when he was laid off ***. In view of this circumstance which clearly distinguishes the case from that covered by the Epstein award, I refrain from otherwise discussing the rationale of the Epstein award.”

The union sought to vacate Arbitrator Epstein’s award in the circuit court, invoking the Labor Management Relations Act, 29 U.S.C. §185 (1978), and the United States Arbitration Act, 9 U.S.C §10 (1970) (Arbitration Act). Glenview moved for summary judgment and filed a counterclaim which it, too, based on the Labor Management Relations Act and the U.S. Arbitration Act, seeking to vacate Arbitrator Elson’s award, which in turn prompted the union to move for summary judgment on Glenview’s counterclaim. Analyzing the awards under the standards of the Arbitration Act (9 U.S.C. §10 (1970)), the trial judge determined that neither award could be vacated for exceeding the scope of the arbitrator’s authority because the awards were based on a correct interpretation of the collective bargaining agreement. Mathe’s dismissal was proper, the judge held, because the sale of his truck meant that there was no longer work available for him, but Richardson’s seniority and recall rights were violated because his truck was used for a period of time by a new employee who did not immediately purchase the truck. Both summary judgment motions were denied, both awards were affirmed, and this appeal followed.

As a preliminary matter, we note that while Federal law controls in cases involving the interpretation and enforcement of collective bargaining agreements (Allis-Chalmers Corp. v. Lueck (1985), 471 U.S. 202, 85 L. Ed. 2d 206, 105 S. Ct. 1904; Local 174 v. Lucas Flour Co. (1962), 369 U.S. 95, 7 L. Ed. 2d 593, 82 S. Ct. 571; Textile Workers Union of America v. Lincoln Mills (1957), 353 U.S. 448, 1 L. Ed. 2d 972, 77 S. Ct. 912), there is some doubt as to whether the Arbitration Act applies in these cases. (See Miller Brewing Co. v. Brewery Workers Local Union No. 9 (7th Cir. 1984), 739 F.2d 1159, 1162, cert. denied (1985), 469 U.S. 1160, 83 L. Ed. 2d 926, 105 S. Ct. 912; Ray, Court Review of Labor Arbitration Awards Under the Federal Arbitration Act, 32 Vill. L. Rev. 57 (1987).) However, the alternative standard for reviewing collective bargaining arbitration awards in suits based on section 301 of the Taft-Hartley Act (29 U.S.C. §185 (1978)) is identical in substance to that of the Arbitration Act. (Ethyl Corp. v. United Steelworkers of America (7th Cir. 1985), 768 F.2d 180, 184.) The trial court’s reliance on and the parties’ alternative invocation of the Arbitration Act are therefore not relevant to the disposition of this appeal.

The seminal case regarding the judicial review of labor arbitration awards is United Steelworkers of America v. Enterprise Wheel & Car Corp. (1960), 363 U.S. 593, 4 L. Ed. 2d 1424, 80 S. Ct. 1358, which underscores the deference that arbitration awards are to be accorded when they are presented for judicial review:

“The refusal of courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements. The federal policy of settling labor disputes by arbitration would be [seriously] undermined if courts had the final say on the merits of the awards.” (363 U.S. at 596, 4 L. Ed. 2d at 1427, 80 S. Ct. at 1360.)

Moreover, “[i]t is the arbitrator’s construction which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.” (363 U.S. at 599, 4 L. Ed. 2d at 1429, 80 S. Ct. at 1362; accord United Paperworkers International Union v. Misco, Inc. (1987), 484 U.S. 29, 38, 98 L. Ed. 2d 286, 299, 108 S. Ct. 364, 371.) Still, the Enterprise Wheel court explained that this deference is not boundless:

“Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.” 363 U.S. at 597, 4 L. Ed. 2d at 1428, 80 S. Ct. at 1361.

The parties acknowledge the applicability of these principles, citing American Federation of State, County & Municipal Employees v. State of Illinois (1988), 124 Ill. 2d 246, 529 N.E.2d 534, which relied heavily on Enterprise Wheel. We also note that the trial judge correctly relied upon this decision in his opinion for the appropriate standard of review. However, any attempt to determine whether or not the award of either of the arbitrators in this case draws it essence from the collective bargaining contract would plunge the court into a sea turbulent with the merits of the underlying grievances. The sheer circumstance that each party here can rationally argue that the unfavorable award is not supported by the language of the collective bargaining agreement, while the favorable award is endowed with such support, and that based on those arguments two well-regarded arbitrators have reached different results through different interpretations of the same collective bargaining agreement affords an excellent example as to why our courts should not regard the arbitration tribunal as merely another agency to which we apply the provisions of our administrative review law.

That arbitrators should differ in their conclusions predicated on the same or similar facts should present nothing singular or apocalyptic to judges. While Arbitrator Epstein gave the owner-operator provisions of the bargaining agreement a much broader reading than did Arbitrator Elson, we are not permitted under Enterprise Wheel to exalt one of these interpretations over the other. The finality of labor arbitration awards is supported by policy justifications which go beyond a simple consideration of the merits of the disputé. (Heinsz, Judicial Review of Labor Arbitration Awards: The Enterprise Wheel Goes Around & Around, 52 Mo. L. Rev. 243, 248-56 (1987).) While a labor arbitration award may in extreme circumstances be so irrational as to require vacation (Chicago Newspaper Publishers’ Association v. Chicago Web Printing Pressmen’s Union No. 7 (7th Cir. 1987), 821 F.2d 390; see also St. Antoine, Judicial Review of Labor Arbitration Awards: A Second Look at Enterprise Wheel & Its Progeny, 75 Mich. L. Rev. 1137, 1148-49 (1977)), we do not find any of those circumstances in this case.

Although the trial judge correctly invoked the Enterprise Wheel standard in upholding the awards in this case, in reaching the actual merits of the controversy he went beyond the strictures laid down by the Supreme Court in Enterprise Wheel. This does not preclude us, however, from affirming the judgment of the trial court, for “[i]t is the judgment and not what else may have been said by the lower court that is on appeal to a court of review.” Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 387, 457 N.E.2d 9.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

DiVITO, P.J., and HARTMAN, J., concur.


author: JUSTICE HARTMAN

text:
    In re ESTATE OF NORAH E. KNOWLSON, Deceased (Mary Knowlson McGregor et al., Petitioners-Appellees and Appellants, v. Barbara Knowlson Ray, Respondent-Appellant and Appellee).
    First District (2nd Division)
    Nos. 1 — 89—2219, 1 — 89—3257 cons.
    Opinion filed September 28, 1990.
    Riordan, Larson, Buckert & Moore, of Chicago (Robert Keith Larson, Alan Fulkerson, and Brian Norkett, of counsel), for appellants.
    McDermott, Will & Emery, of Chicago (Harry Holmes and Julie Lepri, of counsel), for appellee.
   JUSTICE HARTMAN

delivered the opinion of the court:

In count V of their amended petition to contest the will of Norah E. Knowlson (Norah), deceased, petitioners Mary Knowlson McGregor (Mary), DeWitt Edwards Lobe (DeWitt), and Timothy Alden Edwards (Timothy) (jointly, petitioners), sought tort damages from respondent Barbara Knowlson Ray (Barbara), alleging interference with their expectancies. From a summary judgment entered in favor of Barbara on count V, petitioners appeal. In a separate but consolidated appeal, Barbara disputes the denial of her motion for sanctions.

This is the second time this case is before us. The background facts were set forth in detail in In re Estate of Knowlson (1987), 154 Ill. App. 3d 249, 507 N.E.2d 28 (Knowlson I), but are repeated here for convenience to the extent necessary.

A petition contesting Norah’s will was brought pursuant to section 8 — 1 of the Probate Act of 1975 (Ill. Rev. Stat. 1985, ch. IIOV2, par. 8 — 1). Count V asserted a claim for tortious interference with the expectancies of petitioners, claiming as damages an amount which would equal the difference between what petitioners would receive from a successful will contest and the much greater amount they contend they would receive as legatees and appointees under Norah’s prior will. Punitive damages also were sought.

Petitioners are Norah’s daughter, Mary, and two of Norah’s grandchildren, DeWitt and Timothy, both children of another of Norah’s daughters, Elizabeth Knowlson Edwards (Elizabeth), who survived Norah but died before this action was filed. The respondent named in count V is Norah’s third daughter, Barbara.

Norah died on January 25, 1985, survived by her three daughters: Mary, Elizabeth, and Barbara. Her son, James S. Knowlson IV, predeceased Norah. Elizabeth died on May 30, 1985, survived by DeWitt and Timothy. Norah’s husband, James S. Knowlson III (James III), predeceased her on March 6, 1959. His will created a testamentary trust designated as Fund A, under which Norah was granted general testamentary power of appointment. If Norah failed to exercise her power of appointment, the money remaining in Fund A would be transferred to another trust, Fund B, and Norah’s children would each receive a life interest in one-quarter of the income. On the death of each such child, unless the children exercised a special power of appointment in favor of a spouse or descendants, their descendants would receive the principal of Fund B per stirpes.

Norah executed wills in 1966, 1967, 1971 and 1974 (collectively, the prior wills). At the time of Knowlson I, however, petitioners claimed no knowledge of the locations of the prior wills, and no copies of the documents were provided in that record on appeal. (154 Ill. App. 3d at 251.) DeWitt later testified in a deposition that she found the 1966 and 1971 wills in Elizabeth’s papers shortly after her death in 1985. The 1974 will also was found, but DeWitt did not know the circumstances surrounding its discovery. By each of the four prior wills, Norah exercised her power of appointment under Fund A and distributed its principal outright in equal shares to Mary, Elizabeth, and Barbara, or their descendants per stirpes.

A later will was dated May 13, 1981, with codicils dated February 4, 1982, and June 7, 1983, the later codicil revoking the earlier (collectively, 1981 will). This 1981 will left Norah’s entire estate to Barbara and appointed Barbara to receive Fund A in its entirety. The value of Fund A is between $1,300,000 and $1,500,000. The 1981 will was admitted to probate on April 17, 1985.

On October 16, 1985, petitioners filed the will contest. Count V of the petition alleged that Barbara wrongfully interfered with their expectancies by using duress, fraud, and undue influence, causing Norah to make numerous inter vivos transfers of property to Barbara and leave Barbara all her property and all of Fund A under the 1981 will. Count Y sought compensatory damages of $1,350,000, plus the costs of litigation, and punitive damages of $1 million.

Pursuant to Barbara’s motion, the circuit court dismissed count V, holding that heirs or legatees under a prior will had no right to assert in a will contest a claim for tortious interference with an expectancy. This court reversed and remanded the case for further proceedings. Knowlson, 154 Ill. App. 3d 249.

Following the decision in Knowlson I, petitioners amended count V of their claim against Barbara, and for the first time, attached copies of the 1966 and 1974 wills. Barbara answered and raised as an affirmative defense that the existence of these prior wills precluded a claim for tortious interference. Petitioners’ motion to strike Barbara’s affirmative defense was denied.

In April of 1989, Barbara moved for summary judgment, contending that an action for tortious interference did not lie because petitioners had adequate probate remedies. She suggested that, if petitioners successfully contested the 1981 will, they could admit to probate one of Norah’s prior wills and thereby obtain adequate relief. Barbara supported her motion with numerous documents, including copies of Norah’s five wills and two codicils. Petitioners responded that Barbara’s motion for summary judgment was based on the improper speculation that one of the prior wills would be admitted to probate if the 1981 will was set aside. Petitioners likewise attached numerous exhibits in support of their response.

After extensive argument focusing on the availability of adequate probate relief for petitioners, the circuit court granted summary judgment in favor of Barbara on count V. It reasoned that one of Norah’s prior wills could be probated in the event of a successful will contest, thereby establishing the adequacy of relief in probate proceedings. Petitioners appeal from this order, dated July 12,1989.

On August 8, 1989, Barbara filed a motion for sanctions against petitioners and their counsel pursuant to former section 2 — 611. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.) Barbara asserted in her motion that petitioners and their counsel deliberately withheld the prior wills, including the original 1966 will, or failed to conduct any reasonable inquiry as to the factual basis for the tortious interference claim. An amended motion for sanctions, again setting forth the above assertion, was filed two days later.

The court dismissed Barbara’s amended motion for sanctions because it was not timely filed, reasoning she should have brought her motion within 30 days after learning of the existence of the prior wills. Barbara’s appeal from this ruling has been consolidated with petitioners’ appeal from summary judgment.

I

Petitioners appeal from the summary judgment entered in favor of Barbara on their tort claim. The functions of summary judgment are well established (Addison v. Whittenberg (1988), 124 Ill. 2d 287, 294, 529 N.E.2d 552; Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867; Aspegren v. Howmedica, Inc. (1984), 129 Ill. App. 3d 402, 403-04, 472 N.E.2d 822; In re Estate of Garbalinski (1983), 120 Ill. App. 3d 767, 772, 458 N.E.2d 1065), and need no elucidation here.

To recover for tortious interference with an expectancy under a will, petitioners must prove the following: (1) the existence of their expectancy; (2) Barbara’s intentional interference with that expectancy; (3) tortious conduct involved with the interference, such as fraud, duress, or undue influence; (4) a reasonable certainty that the expectancy would have been realized but for the interference; and (5) damages. (In re Estate of Hoover (1987), 160 Ill. App. 3d 964, 966, 513 N.E.2d 991 (Hoover); Knowlson, 154 Ill. App. 3d at 253; Nemeth v. Banhalmi (1981), 99 Ill. App. 3d 493, 499, 425 N.E.2d 1187.) Where a will contest is available and would provide adequate relief to an injured party, a tort action does not lie (Hoover, 160 Ill. App. 3d at 966); however, if an adequate remedy cannot be procured through probate proceedings, a tort action is permissible. (See In re Estate of Jeziorski (1987), 162 Ill. App. 3d 1057, 1062-63, 516 N.E.2d 422; Knowlson, 154 Ill. App. 3d at 253; see also Note, Tortious Interference with Inheritance in Illinois, 16 Loy. U. Chi. L.J. 181, 189-91 (1984).) An award of punitive damages is not considered a valid expectation for purposes of determining the adequacy of relief. Hoover, 160 Ill. App. 3d at 966.

Barbara suggests that the existence of the prior wills, the presumption that one of them can be validated, and the absence of evidence to rebut that presumption establish there is no genuine issue of fact as to petitioners’ ability to obtain adequate probate relief. Petitioners recognize that, if their challenge of the 1981 will is successful and a prior will subsequently is admitted to probate, they would receive all the relief to which they were entitled, and summary judgment on the tort claim would be appropriate. (Hoover, 160 Ill. App. 3d at 966.) Their concern focuses on the possibility that, after a successful will contest as to the 1981 will, none of Norah’s prior wills will be admitted to probate, leaving in force the division of Fund A made by James III and defeating their expectancy. According to petitioners, the risk of this outcome demonstrates that adequate relief might not be available to them solely through probate proceedings, rendering summary judgment inappropriate.

Resolving all inferences fairly drawn from the evidence in favor of petitioners, as we must (Kramer v. Weedhopper of Utah, Inc. (1986), 141 Ill. App. 3d 217, 221, 490 N.E.2d 104), we conclude summary judgment was prematurely granted in favor of Barbara on petitioners’ tort claim. At this point, neither the parties nor this court can say whether the probate remedies will be adequate; the unavailability of probate relief will continue to remain speculative until each of the prior wills is invalidated by the appropriate court. Entry of summary judgment at this time prejudices petitioners’ tort action before the proof emerges as to an essential prerequisite of their claim: the inadequacy of probate remedies.

Hoover (160 Ill. App. 3d 964, 513 N.E.2d 991), relied on by Barbara and the circuit court, is distinguishable. There, the availability of relief from the earlier will and codicils, under which the plaintiffs would fully receive their expectancies, was not speculative, since those testamentary documents already were admitted to probate. Here, it cannot be said with certainty that one of the prior wills will be admitted to probate following a successful will contest; unlike Hoover, adequate relief is not assured absent a tort action.

Moreover, Barbara’s argument that one of the prior wills can be presumed valid is similar to that rejected in Knowlson I. At that time, this court stated (154 Ill. App. 3d at 252-53): “[tjhis argument presumes that an earlier will can be validated by petitioners’ efforts, a supposition unsupported at this stage of the litigation by any evidence.” The only change since Knowlson I is that the prior wills have now been provided. That the prior wills in fact exist indicates only that an adequate recovery in probate proceedings is possible; it does not establish as a matter of law the availability of such a remedy. Barbara’s argument still presumes one of the prior wills can be validated, an inference we cannot construe in her favor on summary judgment.

Nor does the presumption of validity pertaining to the prior wills assure the petitioners of relief through probate proceedings. Such presumptions are not conclusive. (See In re Estate of Jacobson (1979), 75 Ill. App. 3d 102, 106, 393 N.E.2d 1069.) Although no evidence suggests that the prior wills cannot be validated, the risk of that outcome remains a possibility. The adequacy of relief through probate remedies therefore is speculative at this juncture and cannot be said to be free from doubt and clear beyond question, rendering summary judgment inappropriate. In re Estate of Garbalinski, 120 Ill. App. 3d at 772.

II

In the consolidated appeal, Barbara asserts, and petitioners now concede, that the circuit court improperly dismissed as untimely her motion for sanctions. As the basis for her motion, Barbara contends petitioners and their attorneys knowingly concealed the prior wills, and misrepresented the fact of their existence to the circuit and appellate courts in pleadings, briefs, and oral argument. She relies on DeWitt’s deposition testimony and answers to interrogatories, which infer DeWitt possessed Norah’s 1966, 1971, and 1974 wills at the time the petition and count V were drafted. Petitioners, however, characterize Barbara’s allegations as false and misleading.

The circuit court never addressed the merits of Barbara’s motion for sanctions, dismissing it as untimely. The court reasoned that Barbara should have filed her motion within 30 days of “acquiring the knowledge of the existence of the prior Wills and not wait[ed] until the motion for summary judgment was ruled upon because the ruling on the motion for summary judgment was based on the existence of the prior Wills, which Counsel did not hide in that motion.”

Neither section 2 — 611 (Ill. Rev. Stat. 1987, ch. 110, par. 2— 611), under which Barbara brought her motion, nor recently adopted Supreme Court Rule 137 (134 Ill. 2d R. 137), which preempted section 2— 611, required or require proceedings for sanctions to be brought within 30 days after discovery of the alleged violation. Under section 2 — 611, the prescribed procedure was as follows:

“All proceedings under this Section shall be within, and part of the civil action in which the pleading, motion or other paper referred to herein has been filed, and no violation or alleged violation of this Section shall give rise to a separate cause of action, or another cause of action within the civil action in question ***.” (Ill. Rev. Stat. 1987, ch. 110, par. 2-611.)

Rule 137 is substantially similar, substituting the word “rule” for “Section.” No time limit is expressed; either party may bring a section 2— 611 petition at any time during the pendency of the action. See Herman v. Fitzgerald (1989), 178 Ill. App. 3d 865, 869, 533 N.E.2d 1144.

Here, Barbara filed her motion as part of the action in which the alleged violation occurred, and within 30 days of the order granting summary judgment. Section 2 — 611 motions filed after judgment may be brought within 30 days after entry of that judgment, pursuant to section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1203). (Berkin v. Orland Park Plaza Bank (1989), 191 Ill. App. 3d 1056, 1062 n.1, 548 N.E.2d 534.) A requirement that Barbara bring her motion within 30 days of discovering petitioners’ allegedly deceitful action is unwarranted under section 2 — 611. The dismissal of Barbara’s motion for sanctions as untimely therefore was improper and must be reversed.

Barbara requests further that this court impose the sanctions against petitioners and their attorneys. Here, the facts and arguments relevant to the motion are contested, making our consideration of the requested sanctions inappropriate at this time. In addition, the circuit court has not yet considered the merits of Barbara’s motion. Barbara’s motion for sanctions must be remanded for further proceedings.

Based upon the foregoing: in appeal No. 1 — 89—2219, the order of summary judgment in favor of Barbara on count V of the amended petition to contest the will is reversed and the cause remanded for further proceedings consistent with this opinion; in consolidated appeal No. 1— 89 — 3257, the dismissal of Barbara’s motion for sanctions is reversed and the cause remanded for further proceedings.

Reversed and remanded for further proceedings.

DiVITO, P.J., and BILANDIC, J., concur.

      According to Barbara, petitioners further filed the 1966 will with the probate court on November 15,1988, without notice to any interested party.


author: JUSTICE O’CONNOR

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LONNIE GREEN, Defendant-Appellant.
    First District (1st Division)
    Nos. 1 — 88—0081, 1—88—1442 cons.
    Opinion filed September 10, 1990.
    Rehearing denied November 1, 1990.
    Modified opinion filed November 13,1990.

      Randolph N. Stone, Public Defender, of Chicago (Ellen Fishbein and Emily Eisner, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and Janet C. Mahoney, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant Lonnie Green was found guilty of murder pursuant to section 9 — 1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9 — 1(a)(2)) for the death of David Irons. The trial court sentenced Green to 40 years in the Illinois Department of Corrections. Green appeals. For the reasons below, we affirm Green’s conviction and sentence, but reverse the dismissal of his post-conviction petition.

On the late evening of July 12, 1986, Irons and his fiancee Sheena Nelson were in front of their residence at 917 N. Racine in Chicago, Illinois. While they were outside, Nelson saw Green and another man drive up in a baby blue car, get out, and argue with a man known as Mustafo. Then, they saw Mustafo leave for a short while, return with a gun, and shoot at Green in the blue car. When the shooting started, Nelson and Irons went into their house. Approximately one hour later, Nelson and Irons left the house and were sitting on a curb when they saw the same blue car again. The car stopped about 10 to 12 feet from where Nelson and Irons were sitting, and Green jumped out and said, “What’s you be about?” When Irons answered, “I don’t be about nothing,” Green shot Irons. Irons died as a result of the shooting.

Around 2 a.m. on July 13, Officer Eric Strickland responded to the shooting. When he arrived, Nelson gave a description of the shooter. Officer Strickland’s police report indicated that Nelson described the shooter as a black man, six feet tall, with a black “bushy AFRO,” and a thick black mustache.

On July 15, 1986, Nelson identified James Winston as the car’s driver and also identified a blue 1977 Oldsmobile as the car used in Irons’ shooting. The blue Oldsmobile was registered to Darlene Taylor. Later, Detective Vucko went to Taylor’s residence, where he spoke with Winston, the alleged driver of the blue Oldsmobile. After conversing, Detective Vucko and Winston went to the police station and talked further.

After speaking with Winston, Detective Vucko went to an apartment where he met Andrea Pollack, Green’s friend, and Green. Green agreed to go to the police station. At the police station, Green told Detective Vucko that he had been at the Foster Avenue beach with Harold Thomas, Green’s brother-in-law, and other friends on the night of July 12 until 4 a.m. on July 13.

On July 16, Nelson viewed a lineup and identified Green as the shooter and Winston as the driver. After the lineup, Green was arrested and spoke to Detective Vucko again. Green told the detective that on July 12 he, Winston, and Pollack had been driving around, and that they had stopped on Racine, where Winston spoke with a relative. According to Green, during Winston’s conversation, there was a “problem” and a gun was fired, at which time Green, Winston, and Pollack left Racine and went to Foster Avenue beach, where Winston obtained a gun. Thereafter, the group returned to Racine to find the person who had fired the shots earlier in the evening. According to Green, when the group returned to Racine, Winston shot Irons. But when Detective Vucko told Green that there were witnesses who saw him shoot Irons, rather than Winston, Green admitted that he shot Irons.

Shortly after the conversation, Detective Vucko returned with an assistant State’s Attorney. Green spoke to the assistant State’s Attorney and told her essentially the same thing. Later, Green gave a court-reported statement to the same effect to the assistant State’s Attorney. Green reviewed the statement and signed it.

At trial, Patricia Green, Green’s wife, testified that Green was on their apartment floor on July 12 from 11:45 p.m. until the next day.

Also at trial, defendant Green testified that on July 12, 1986, he and Winston had been at Foster Avenue park before driving to 917 North Racine, that at Racine, Winston argued with his brother-in-law, that after the argument, the brother-in-law left, returned with a gun, and started shooting. Then, Green, Winston, Harold Thomas, and some other friends went back to the beach to drink until the police told them to leave. Green testified that after leaving the beach, Green went home, fell on the floor and remained until 8 a.m. on July 13. Green also testified that after the police brought him to the police station between 10:30 and 11 p.m. on July 15, 1986, one of the officers came into the room and showed him a police report. The officer allegedly told Green that Winston gave a statement that implicated Green. The officer allegedly told Green that if he did not cooperate, he would get sentenced to a prison term for the duration of his natural life. Green asked the officer what he wanted Green to do, and then the officer rehearsed with Green the statement Green was to make about the killing. Green testified that an assistant State’s Attorney arrived next and that he rehearsed the statement again.

After a jury trial, Green was found guilty of murder for the killing of Irons, and Green was sentenced to 40 years in the Illinois Department of Corrections.

On February 16, 1988, Green filed a pro se petition for post-conviction relief. On March 8, 1988, Green’s petition appeared on Judge Himel’s docket rather than on the original trial judge’s, Judge Toomin’s, docket. Judge Himel continued the case to March 18, 1988, on Judge Toomin’s docket. On March 18, 1988, Judge Toomin continued the case until March 21, 1988. On March 21, 1988, 33 days after filing, the petition was heard and denied on the grounds that it was patently frivolous and without merit.

Green appeals the conviction, sentence, and dismissal of his pro se post-conviction petition.

Green first argues that the trial court erred in refusing to admit Officer Strickland’s testimony of Nelson’s prior statement to Officer Strickland regarding the shooter’s description, contending that he was prevented from impeaching Nelson, that he was prevented from introducing evidence that he was not the shooter, and that Strickland’s testimony was admissible as a prior identification pursuant to section 115 — 12 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 12). We disagree. Section 115 — 12 of the Code of Criminal Procedure of 1963 provides that testimony regarding prior identifications is not rendered inadmissible by the hearsay rule if “the declarant testifies at the trial or hearing, and (b) the declarant is subject to cross-examination concerning the statement, and (c) the statement is one of identification of a person made after perceiving him.” (Ill. Rev. Stat. 1985, ch. 38, par. 115 — 12.) While it is true that a defendant is entitled to present evidence which proves the guilt of another for the crime with which he is charged, and that Officer Strickland’s testimony regarding Nelson’s prior description of the shooter would have been admissible pursuant to section 115 — 12 if presented at the proper time, the defendant must comply with the provisions of section 115 — 12 in offering such testimony into evidence. As implicitly required under section 115 — 12, evidence of prior identification is not admissible until the declarant has testified and become subject to cross-examination. Accordingly, the trial court properly restricted the cross-examination of Officer Strickland since Nelson had not yet testified as to the identification of the shooter. After Green’s attorney cross-examined Nelson about the shooter’s description and she replied that she did not remember, Green’s attorney could have recalled Officer Strickland to testify during the defense’s case in chief, but declined or failed to do so.

Next, Green argues that in attempting to impeach his testimony, the State improperly introduced unsupported innuendos or insinuations surrounding Green’s confession, which would constitute reversible error. We disagree. On direct examination, Green testified that he did not know the details of the murder until after his arrest when he was shown a police report of Winston’s statement. On cross-examination the following exchange occurred between the People and Green:

“DEFENDANT: [Detective Vucko] [c]ame in with the report. Then he said that it was the statement of James Winston. Then he read something in there with James Winston, said that I had shot this man and he drove the car. Okay.
ASSISTANT STATE’S ATTORNEY: Well, if I were to tell you that this police report was prepared after — .
DEFENSE COUNSEL: Objection, Judge.
ASSISTANT STATE’S ATTORNEY: After you were charged — .
THE COURT: Overruled.
ASSISTANT STATE’S ATTORNEY: And after the State’s Attorney had left, could it have been a different police report or are you sure now still this is the same police report that Detective Vucko showed you?
DEFENDANT: I’m saying this is the one he showed me when he came into the interrogation.”

The assistant State’s Attorney properly cross-examined Green regarding both the facts and circumstances surrounding his confession (People v. Burbank (1972), 53 Ill. 2d 261, 269, 291 N.E.2d 161, cert. denied (1973), 412 U.S. 951, 37 L. Ed. 2d 1004, 93 S. Ct. 3017) and about his testimony on direct examination. (People v. Lyles (1985), 106 Ill. 2d 373, 402, 478 N.E.2d 291, cert. denied (1985), 475 U.S. 859, 88 L. Ed. 2d 141, 106 S. Ct. 171.) Moreover, the claimed error, i.e., the insinuation that the police report containing Winston’s statement that Green shot Irons did not exist until after the defendant made his admissions, would not have been reversible since it was not substantial, repeated, and prejudicial. (People v. Jurczak (1986), 147 Ill. App. 3d 206, 217, 497 N.E.2d 1332, appeal denied (1986), 113 Ill. 2d 564.) Here, there was no extended pattern of unsupported insinuation since the claimed error consisted of one question which had been rephrased by the assistant State’s Attorney prior to Green’s answer.

Next, Green incorrectly argues that the court erred in allowing the People to cross-examine Patricia Green about her failure to tell the assistant State’s Attorney about her alibi testimony. To determine whether the alibi was recently fabricated, the court properly allowed the People to cross-examine Patricia Green about the circumstances of the alibi and whether she had previously told the same story. (People v. Outlaw (1979), 75 Ill. App. 3d 626, 645, 394 N.E.2d 541.) Moreover, this line of questioning was permissible as well as probative since Patricia Green was the only alleged witness to Green’s whereabouts from 11:45 p.m. on July 12 until the next day. (People v. Martinez (1979), 76 Ill. App. 3d 280, 284-85, 395 N.E.2d 86.) Accordingly, we find .neither a clear abuse of discretion nor prejudice to Green by the cross-examination of Patricia Green.

Green also argues that he should be granted a new trial because the People failed to inform him of his false exculpatory statement on page five of the police report. This argument is erroneous because the State substantially complied with the discovery request and Supreme Court Rule 412 (107 Ill. 2d R. 412(a)(ii)). Illinois Supreme Court Rule 412(a)(ii) requires the People to disclose the substance of any oral statement made by an accused. The People had tendered the police reports which clearly contained Green’s statement concerning Foster Avenue beach, even though the report erroneously stated Winston’s name. It was clear that Green made the statement because it referred to Harold Thomas as the brother-in-law of the person making the statement, and Harold Thomas is Green’s brother-in-law. Additionally, it was clear that pages three and four of the police report pertained to Winston, while page five and onward pertained to Green.

Additionally, Green argues that the trial court abused its discretion when it sentenced him to 40 years’ imprisonment because the trial court failed to consider his drinking problem and his “negligible” criminal past. The trial court did not abuse its discretion since evidence was introduced by defense counsel about Green’s prior convictions and his drinking problem. “[WJhere mitigation evidence is before the court, it is presumed that the sentencing judge considered the evidence, absent some indication, other than the sentence imposed, to the contrary.” (People v. Bergman (1984), 121 Ill. App. 3d 100, 109, 458 N.E.2d 1370.) Accordingly, the trial court properly sentenced Green, and absent an abuse of discretion by the trial court, a sentence may not be altered on review.

Finally, Green argues that his pro se post-conviction petition was improperly dismissed since the petition was dismissed 33 days after it was filed and docketed. We agree. Section 122 — 2.1(a) of the Post-Conviction Hearing Act authorizes summary dismissals and provides in pertinent part:

“Within 30 days after the filing and docketing of each petition, the court shall examine such petition and enter an order thereon pursuant to this Section. If the court determines the petition is frivolous or is patently without merit, it shall dismiss the petition in a written order ***.” (Ill. Rev. Stat. 1987, ch. 38, par. 122-2.1(a).)

Green contends that the 30-day period began to run when the petition was filed and docketed in any trial court, and the State contends that the period began to run when the petition was filed and docketed in the original trial court. While it may be practical for the post-conviction petition to be heard by the original trial court judge because he or she is familiar with the case, we conclude that the statute’s purpose, i.e., to insure that post-conviction petitions are expeditiously reviewed, is served by holding that the 30-day period begins when the case is docketed on the docket call of any trial court with jurisdiction over such a petition, rather than allowing the post-conviction petition to be indefinitely continued until it is docketed to the original trial judge. While a new trial judge may not be familiar with the case, it is clear that “the court may examine the court file of the proceeding in which the petitioner was convicted, any action taken by an appellate court in such proceeding and any transcripts of such proceeding.” (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 2.1(c).) Accordingly, the trial court’s failure to summarily dismiss the petition within 30 days of filing and docketing renders the dismissal void. Consequently, the trial court’s dismissal of Green’s pro se post-conviction petition is reversed and the cause remanded for further consideration in accordance with sections 122 — 4 through 122 — 6 of the Post-Conviction Hearing Act.

In conclusion, the trial court properly excluded Officer Strickland’s testimony regarding Nelson’s description of the person who shot Irons; the assistant State’s Attorney properly cross-examined Green regarding both the facts and circumstances surrounding his confession; the court properly allowed the People to cross-examine Patricia Green about the circumstances of the alibi and whether she had previously told the same story; the State substantially complied with the discovery request and Supreme Court Rule 412, and Green was properly sentenced. However, Green’s post-conviction petition was improperly dismissed because 33 days had lapsed since it was filed and docketed. Green’s conviction and sentence are affirmed, the dismissal of his post-conviction petition is reversed, and the case is remanded for further consideration of the petition.

Affirmed in part; reversed in part and remanded with directions.

BUCKLEY, P.J., and CAMPBELL, J., concur.