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    BYRON J. HOLSTON et al., Co-Adm’rs of the Estate of Theodora Holston, Deceased, Plaintiffs-Appellees, v. SISTERS OF THE THIRD ORDER OF ST. FRANCIS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—88—2618
    Opinion filed February 24, 1993.
    Rehearing denied July 15, 1993.

      Francis D. Morrissey, Norman D. Barry, Jr., and Thomas W. Cushing, all of Baker & McKenzie, of Chicago, for appellant.
    Albert F. Hofeld and Howard Schaffner, both of Chicago, for appellees.
   JUSTICE CERDA

delivered the opinion of the court:

One of the defendants, the Sisters of the Third Order of St. Francis (defendant), which was the owner and operator of St. Anthony Medical Center, appeals after a jury trial in which plaintiffs, Byron J. Holston and Heather L. Holston, co-administrators of the estate of Theodora Holston (decedent), were awarded $7.3 million in their medical malpractice action. Defendant argues that: (1) the trial court erred in denying its motion to transfer venue to Winnebago County; (2) in violation of Supreme Court Rule 220 (134 Ill. 2d R. 220), the trial court improperly allowed plaintiffs’ expert, Dr. Alden, to testify regarding opinions that were not provided to defendant before trial; (3) the trial court erred in barring Susan Bums from testifying as to the standard of care for nurses; (4) the jury should not have been instructed to consider conscious pain and suffering, disability, and disfigurement because there was no evidence of these damages; (5) the trial court erred in barring evidence of the separation of decedent and her husband 18 months prior to her death; and (6) the jury verdicts were excessive. We affirm.

Plaintiffs’ first complaint for wrongful death and survival named the following defendants: The Rockford Surgical Service, S.C., a corporation; Dr. Edward H. Sharp; R. Glenn Smith; Dr. George Arends, individually and d/b/a Rockford Anesthesiology Group; John Szewczyk, individually and d/b/a Rockford Anesthesiology Group; St. Anthony Hospital; the Sisters of the Third Order of St. Francis, a not-for-profit corporation; Christine Carlson; K. Flatley; Donald E. Bonicki; C.R. Bard, Inc. (Bard); Becton, Dickinson and Company, a corporation; Bard Parker, a division of Becton, Dickinson and Company, a corporation (Bard Parker); Bard Consumer Products (Bard Consumer); Bard Home Health Division, a division of Bard (Bard Home); The Burrows Company, a corporation; and Cinders Hospital Supply Co., a corporation. Bard, Becton, Bard Parker, Bard Consumer, Bard Home, Burrows, and Cinders allegedly designed, manufactured, distributed, and sold to defendant a central venous pressure (cvp) catheter that was defective and unreasonably dangerous.

Rockford Surgical filed a motion for dismissal or for transfer of venue to Winnebago County because of the existence of an identical action in Federal court, because the cause of action arose in Winnebago County, and because all defendant doctors resided and practiced in Winnebago County. This motion and other defendants’ motions for change of venue were denied.

Plaintiffs’ fourth amended complaint alleged in count I against defendant that: (1) St. Anthony owned and operated the hospital in Rockford; (2) decedent was admitted to the hospital on January 9, 1978, under the care of Dr. Sharp, who performed gastric bypass surgery on her on January 12, 1978; (3) Dr. Arends was the anesthesiologist for decedent’s surgery and placed a cvp catheter in her; (4) the cvp catheter penetrated decedent’s heart on January 12, 1978, resulting in an atrial perforation; (5) the cvp catheter delivered intravenous fluid through the atrial perforation into the pericardial sac surrounding decedent’s heart, resulting in a condition of cardiac tamponade; (6) as a result of the cardiac tamponade, decedent suffered cardiac arrest, which resulted in permanent brain damage; (7) defendant was negligent because: (a) although the nurse caring for decedent believed that she should be seen by a physician immediately, the nursing supervisor refused to allow the nurse to notify Dr. Sharp and failed to notify a physician herself; (b) when standard nursing practice required that a physician be notified concerning decedent’s vital signs, defendant failed to notify a physician in a timely manner; and (c) defendant failed to adequately care for decedent; and (8) as a result of defendant’s negligence, decedent became injured and sustained conscious pain and suffering, disability, and disfigurement until she died on January 19, 1978. Count I sought damages of $1.5 million.

Count II was for wrongful death based on the negligence alleged in count I, and it further alleged that decedent’s husband Byron C. Holston, son Byron J. Holston, and daughter Heather L. Holston sustained substantial pecuniary loss, loss of services and consortium, and severe damage by reason of decedent’s death. Count II sought damages of $8.5 million.

Plaintiffs made a motion in limine barring testimony regarding decedent’s separation from her husband. Plaintiffs’ attorney argued at the hearing that they were separated about V-k years prior to decedent’s death, that they did not consult a lawyer, that it was not a formal separation, that they were separated for four to six months, that they saw a marriage counselor, and that they were reunited. The trial court orally ruled that the incident was not relevant to the quality of the marriage on the date of decedent’s death and was prejudicial.

The testimony that is relevant to the issues raised on appeal is summarized below.

Dr. Sharp testified for plaintiffs as an adverse witness to the following. Decedent was morbidly obese and her gastric bypass operation was performed to reduce her weight. No abnormality in her heart was noted before the surgery. Dr. Arends, the anesthesiologist, placed a cvp catheter in decedent for the gastric bypass surgery. The purpose was to monitor the fluid shifts. No complications were revealed to Dr. Sharp during the surgery, and decedent’s heart did not suffer any trauma during the surgery.

After the surgery, decedent was taken to the intensive care unit. Her vital signs were monitored in the afternoon. One of the vital signs was pulse, and tachycardia was a rapid heart beat, which could be one of the signs of cardiac tamponade. Other signs of cardiac tamponade were increased cvp and a drop in blood pressure. Decedent’s pulse rate was 78 at 1:30 p.m, 94 at 2 p.m., and 120 at 2:30 p.m. A pulse of 120 one hour after surgery if a patient was awake and feeling pain was not unreasonable. Decedent’s pulse, blood pressure, and respiration rates were within normal limits up to 5 p.m. Her blood pressure and cvp were within the range of normal at 5 p.m. At 5 p.m., decedent was repositioned to her left side, and she was given a rubber glove to blow up for a medical reason. These activities could have increased the heart rate.

Compared to earlier measured blood pressure recordings, decedent’s blood pressure of 100/60 at 5 p.m. was within the normal range. The only arguably significant or abnormal vital sign at 5 p.m. was the 140 pulse, and Dr. Sharp would have wanted to know about it. Her pulse rose to 148 at 6 p.m. Dr. Sharp received a telephone call at 6:20 p.m., when her pulse was 166 and her cvp was 22.

Dr. Sharp arrived at decedent’s bedside at 6:43 p.m. He said something to decedent, and she squeezed his hand but he did not think she was able to speak because of the presence of an endotracheal tube. She was awake enough that he felt she had a functioning brain. He did not recall, but thought that decedent was still conscious when she was taken to the operating room to have an exploratory laparotomy. He did not think that she then would have been able to respond to pain, but this question was in the area of neurology. No anesthesia was given to her when he opened her abdomen in the second operation, but he did not think that she experienced any pain.

In the second operation, Dr. Sharp found no bleeding to account for decedent’s condition. Decedent had a cardiac arrest, and he had to perform an emergency left thoractomy, in which he severed the tissue in her left chest. Her heart stopped for slightly over five minutes. He squeezed her heart to help return some blood flow to her brain. The heart did not feel normal because of a large amount of fluid around it in the sac. He made a small opening and about 100 or 200 cubic centimeters (cc) of fluid came out. From 1 to 7 p.m., she had received intravenous (iv) fluid at the rate of 100 cc per hour. Her heart started to beat after the fluid was relieved. He felt the cvp catheter within the right atrium. Decedent never regained consciousness.

A patient would experience pain after the gastric bypass operation upon awakening from anesthesia. Gastric bypass surgery caused a tightening of the muscles that was a response to pain. The cvp would rise as a result because the pressure within the abdomen rises. Decedent was resting comfortably at 4 p.m., yet her cvp was up from the previous hour. There was nothing in the nurse’s notes to indicate that she was in pain from 5 to 6 p.m. She was given medicine at 3:30 p.m. for her complaint of abdominal pain. At 6 p.m., she was complaining of abdominal discomfort. Decedent was so large that she would have had tremendous pain after the surgery. It did not mean that she had no pain if there was never a notation of pain from the time she arrived in the intensive care unit until after the second surgery. It was possible that a patient could have pain and the nurse would not record it because it was expected.

On January 25, 1988, plaintiffs’ attorney stated that plaintiffs’ expert, Dr. Alden, had no criticism of the hospital when he gave his deposition because Dr. Maxwell had testified at his own deposition that he was called to the hospital around 4:55 p.m. Plaintiffs’ attorney stated that Dr. Maxwell was going to testify that he was not called to the hospital or did not get to the hospital until around 6:20 or 6:30 p.m. and that, therefore, Dr. Alden might have an additional criticism against the hospital. The trial court indicated that the information was new to plaintiffs and that plaintiffs should give defendant “some idea” of how the expert would testify.

Susan Burns testified as an adverse witness for the plaintiffs that on January 12, 1978, she was the head nurse of the special care unit. She went off duty at approximately 3:30 p.m., but she remained in the hospital to work on scheduling. She was at decedent’s bedside just prior to the second surgery.

Dr. Paul Maxwell testified that he was the cardiologist called to decedent’s bedside when she was in critical condition at about 6:30 p.m. He tried to stabilize her prior to Dr. Sharp’s arrival. If a nurse felt at 5 p.m. that decedent’s vital signs were abnormal, she should have called a doctor. If he had been called at 5 p.m., among the diagnoses he would have considered was cardiac tamponade, but the vital signs at 5 p.m. could have been consistent with a normal post-operative course. A number of tests could have been performed at 5 p.m., and a diagnosis of cardiac tamponade could have been made before 6 p.m. Many patients with cardiac tamponade complained of chest pain, but it was not noted in the chart that decedent complained of anything other than abdominal pain. Abdominal pain was more consistent with bleeding than with cardiac tamponade.

The videotaped evidence deposition of Christine Carlson was presented. She testified to the following. The charge nurse was responsible for the patient care and the activities in the special care unit. Burns was the charge nurse for the prior shift, and Pam Markin was the charge nurse for Carlson’s shift. Markin assigned Carlson to decedent. Carlson went to decedent’s bedside to receive a report from Nurse Flatley, who was going off duty. She noticed from the chart that decedent’s pulse was in the 70’s after surgery and that within a two- or three-hour period it had risen to 120. Decedent’s cvp was 9 when Carlson arrived.

At 4 p.m., decedent was resting comfortably and was not restless, and Carlson noted that her pulse was 120 to 124. She felt that this was a significant rise in pulse and that something was going on. Carlson expected the pulse to be relatively within the baseline parameters after she came back from surgery, especially after decedent had been given analgesia for pain. She also noted that decedent was pale and that her heart sounds were distant.

Carlson further testified that at 4:45 p.m., decedent’s pulse was between 120 and 140. On a third request, Markin came, and Carlson told her that she was concerned about the cvp and pulse rates and that the urine output was marginal. She told Markin that she was certain that decedent was in the early signs of cardiac tamponade and that if Dr. Sharp were called he could evaluate the situation. Markin found no basis for cardiac tamponade and did not think that Dr. Sharp needed to be called. Markin told Carlson to watch decedent because she expected a lowering blood pressure with tamponade. Carlson said she did not want to wait until that point.

Carlson spent a lot of time trying to calm decedent, who wondered why Carlson was leaving the bedside and talking so much to the other nurse. At 5 p.m., decedent’s pulse had risen to 140, the cvp had risen to 11, and the urinary output had dropped from 70 cc to 20 cc. Carlson would have expected her urinary output to be at least 70 cc an hour. She told Markin that the pulse and cvp had climbed and that the urinary output had dropped. At 5 p.m., the situation was very serious and Dr. Sharp should have been called. Markin said that she would make the decision whether Dr. Sharp needed to be called and that there was no evidence of tamponading.

No doctors had seen decedent from 4 to 6 p.m. At 6 p.m., decedent’s pulse was up to 150, her systolic blood pressure was starting to fall, her cvp had risen to 16, and she did not have a urinary output. Her color was a little paler than at the beginning of Carlson’s shift.

Carlson further testified that decedent’s condition deteriorated very rapidly from 6 to 6:15 p.m. At 6:15 p.m., decedent’s pulse was up to 160 and her cvp was 22. It was very difficult to measure the blood pressure because it was so low. At 6:20 p.m., there was no diastolic blood pressure, and decedent was slow to respond. At 6:30 p.m., Carlson could not get a blood pressure reading, and decedent was only able to open her eyes, squeeze Carlson’s hand, and speak in a whisper.

Carlson tried to calm and reassure decedent. When decedent began decompensating in her pressure, she looked anxious and asked Carlson what was going on. Decedent lost her blood pressure and became unconscious when she “coded” at 6:15 or 6:20 p.m. Several persons arrived at the bedside. Dr. Sharp was called at 6:20 p.m., and Carlson saw him at the bedside at 6:43 p.m., but he may have arrived there sooner.

Carlson further testified that decedent was taken to surgery as quickly as possible, at 6:50 p.m. Carlson told her that she was being taken to surgery because some fluid in her chest had to be relieved. She did not lose consciousness on the way to surgery. Decedent was brought back to the special care unit at 9 p.m., at which point there was no response to verbal or pain stimuli.

Prior to the testimony of Dr. John F. Alden, defendant moved that the testimony of plaintiffs’ expert should be barred because of the untimeliness of plaintiffs’ notification that the expert was going to offer additional opinions against his client after his deposition. The motion was denied.

Dr. Alden testified about his qualifications as a surgeon, including that he was one of the pioneers of gastric bypass surgery. His opinion was that the cause of decedent’s death and brain damage was pericardial tamponade resulting from a perforation of the right atrium by an improperly positioned catheter. The perforation occurred at 4 p.m. or earlier because the vital signs began to change then. The diagnosis and treatment of cardiac tamponade in this case did not conform to the standard of practice. The standard of practice would have been to place the tip of the catheter into the superior vena cava above the pericardial sac and afterwards to confirm the location by a chest X ray. An X ray would have shown that the catheter tip was in the atrium.

Over an overruled objection based on a violation of Supreme Court Rule 220 (134 Ill. 2d R. 220), Dr. Alden testified that his opinion was that a doctor should have been called at 5 p.m. because decedent’s condition had changed. The symptoms were clear, and the diagnosis could have been made at 5 p.m. There was a deviation from the standard of care when no doctor was called between 5 and 6 p.m. The symptoms of cardiac tamponade were clear at 6 p.m.

Dr. Alden further testified that at 6:20 p.m., the most likely diagnosis was pericardial tamponade, but neither the surgeon nor the cardiologist made the correct diagnosis. A needle could have been used to determine if fluid was present, and the fluid could have been withdrawn with the needle. Relieving the cardiac tamponade would have saved decedent’s life.

Dr. Alden saw Carlson’s deposition for the first time several nights prior to the date of testimony. He learned for the first time reading Carlson’s deposition that there was a suggestion that the attending nurse was prevented from getting a doctor. Although he testified in his deposition that the nursing care did not deviate from the standard of care, his opinion now was that a nurse deviated from the standard of care.

Jeff Beichner testified that he was a nurse who had worked as an intravenous therapist with cvp lines. He also had experience in working with post-surgical patients and cardiac patients and in teaching nursing. Beichner would have been concerned about the rise in decedent’s heartbeat from 94 at 2 p.m. to 120 at 2:30 p.m. The pulse rate at 3:30 p.m. also would have concerned him. At 5 p.m., decedent was having some pain, but it would have taken a significant torture-like pain to cause a heart rate of 140. The nursing personnel had a duty to contact the doctor at 5 p.m. even if everything was normal other than the urinary output of 20 cc or the pulse rate of 140. It was the standard of care to notify the doctor when the urinary output fell below 30 cc, even if the surgeon’s standard was no notification unless the output fell to 15 cc.

Dr. Frank Edward Robbins, Jr., testified to the following. He was an anesthesiologist who had taught anesthesiology at medical school. The catheter placement in this case was not within the standard of practice because a chest X ray was not obtained and proper placement was not confirmed. The person who inserted the catheter had the primary responsibility to confirm proper placement, and the anesthesiologist did not obtain a chest X ray. This responsibility was also shared by the surgeon.

Byron Holston testified that he was 20 years old and decedent was 17 years old when they were married. When decedent was hospitalized, they had been married 12 years and their children, Byron and Heather, were ages 12 and 8, respectively. Decedent was 29 years old when she died.

Plaintiff introduced into evidence vital statistics of the 1980 United States life tables, which stated that the life expectancy of a 29-year-old female was 50.6 years.

Plaintiffs rested their case.

Dr. Arends testified for defendant that there had been no cases in the literature of cardiac tamponade following internal jugular placement of this catheter. The risks of cardiac tamponade posed by the insertion of the catheter in decedent were infinitesimal.

On February 8, 1988, the court was advised that plaintiff settled with Dr. Arends, Dr. Sharp, Rockford Anesthesiologists, and Dr. Maxwell. In addition, defendant moved for a mistrial and a transfer of venue to Winnebago County. After the close of plaintiffs’ case, defendant moved for a mistrial and for a transfer of venue to Winnebago County. The motions were denied.

Dr. Sharp testified that it was very possible that if a doctor had been contacted at 5 p.m., he would have been able to run the necessary tests and diagnose cardiac tamponade. He should have been notified at 5 p.m. by the hospital.

Plaintiffs voluntarily dismissed Dr. Entires, Carlson, Dr. Maxwell, Rockford Cardiology, Dr. Sharp, Dr. Arends, Rockford Surgical, and Rockford Anesthesiologists, with prejudice. In addition, plaintiffs voluntarily dismissed Bard without prejudice. Defendant’s motion for directed verdict was denied.

On the basis that Susan Burns had not been disclosed as an expert, she was barred from testifying about the standard of nursing care but was permitted to give expert opinions from the time that she was involved with the patient as a treater. Burns testified that, assuming that Carlson saw a problem with her patient and advised her supervisor instead of contacting the doctor, she should have contacted the doctor first.

The following offer of proof of Burns’ testimony was made. She was familiar with the standards of nursing practice applicable to nursing care as they existed in the Rockford area in January 1978. Her opinion was that there was no need to notify a doctor at 4 or 5 p.m. because the patient’s vital signs were stable.

Jury instructions on conscious pain and suffering, disability, and disfigurement were given over defendant’s objection.

The jury awarded on count I $600,000 for decedent’s pain and suffering and $400,000 for decedent’s disability and disfigurement. The jury awarded on count II $5 million for the loss of society, companionship, and services suffered by decedent’s son and daughter, $1.2 million for the loss of society, companionship, and services suffered by decedent’s husband, and $100,000 for the loss of money and goods suffered by decedent’s son, daughter, and husband. The total verdict for count I was $1 million, and the total verdict for count II was $6.3 million.

Defendant filed a post-trial motion, which was denied.

Defendant first argues on appeal that the trial court erred when it denied its motion to transfer venue from Cook County to Winnebago County because, inter alia, plaintiffs made no effort to establish a prima facie case against Bard.

Defendant did not renew the motion at the close of all the evidence as required by the Illinois Code of Civil Procedure. (Ill. Rev. Stat. 1991, ch. 110, par. 2—105; Young v. Cerniak (1984), 126 Ill. App. 3d 952, 963, 467 N.E.2d 1045 (motion for transfer of venue was renewed at close of plaintiff’s case but was not renewed at close of all the evidence and, therefore, issue was not presented for review).) According to the 1955 Joint Committee Comments to section 2 — 105, the requirement for renewal of the motion was “designed to permit a review of the issue of good faith and probable cause on the basis of the entire record, and not simply on the record up to the point at which the earlier motion to transfer had been denied.” (Ill. Ann. Stat., ch. 110, par. 2—105, Joint Committee Comments, at 103 (Smith-Hurd 1983).) Therefore, the denial of defendant’s motion to transfer venue was waived as a ground for reversal.

Defendant next argues that the trial court improperly allowed Dr. Alden to testify regarding opinions concerning defendant’s deviation from the standard of care that were not provided to defendant before trial in violation of Supreme Court Rule 220 (134 Ill. 2d R. 220). Defendant argues that Dr. Alden was critical of the nurses for the first time at trial, but defendant does not specify which opinions were new.

Excerpts from Dr. Alden’s deposition were read by plaintiffs’ counsel during a side bar, but it is not part of the record. The record is not adequate to determine whether the expert testified to new opinions at trial. Although Dr. Alden testified at trial that he had testified in his deposition before trial that the nurses did not deviate from the standard of care, the excerpts read by plaintiffs’ counsel indicated that Dr. Alden was critical of the nurses’ failure to contact a doctor. Dr. Alden’s trial testimony that he did not testify at his deposition that the nurses deviated from the standard of care conflicts -with the deposition testimony excerpts read by plaintiffs’ counsel. Rather than accepting Dr. Alden’s recollection of his deposition testimony, the entire deposition testimony itself would have to be reviewed in order to determine whether Dr. Alden’s opinions at trial were inconsistent with his previously disclosed opinions. As it was the appellant’s burden to present this court with an adequate record (Venturini v. Affatato (1980), 84 Ill. App. 3d 547, 552, 405 N.E.2d 1093), the issue cannot be addressed.

Defendant next argues that the trial court misapplied Supreme Court Rule 220 by barring Bums from testifying about the standard of care for nurses because, as the head nurse in charge of the special care unit, she was a medical treater of the patient and was therefore immune from the disclosure requirements. Plaintiffs respond that Burns was not a treater because she did not see the patient until after she became unconscious.

Supreme Court Rule 220 provides a definition of expert witness:

“An expert is a person who, because of education, training or experience, possesses knowledge of a specialized nature beyond that of the average person on a factual matter material to a claim or defense in pending litigation and who may be expected to render an opinion within his expertise at trial. He may be an employee of a party, party, or an independent contractor.” (134 Ill. 2d R. 220(a)(1).)

The rule provides for disclosure of certain expert witnesses:

“In order to insure fair and equitable preparation for trial by all parties the identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party either within 90 days after the substance of the expert’s opinion first becomes known to that party or his counsel or, if the substance of the expert’s opinion is then known, at the first pretrial conference in the case, whichever is later.” (Emphasis added.) 134 Ill. 2d R. 220(b)(1).

Rule 220(b)(1) has been interpreted by the Illinois Supreme Court as requiring the disclosure of the identity and opinions only of those witnesses who are “engaged” for the purpose of giving an expert opinion at trial. (Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 231, 528 N.E.2d 978.) The court also held that treating doctors were not expert witnesses within the meaning of the rule because they were consulted for medical treatment. (Tzystuck, 124 Ill. 2d at 231.) At trial, treating doctors could give opinions that were developed in the course of medical treatment and were completely apart from any litigation. (Tzystuck, 124 Ill. 2d at 231.) Those opinions were not formed in anticipation of a trial but were the product of a doctor’s observations while treating the patient and were similar to those of occurrence witnesses who also were not retained but who testified because they "witnessed or participated in the events. (Tzystuck, 124 Ill. 2d at 234-35.) In addition, the purpose of the rule was to facilitate trial preparation and the evaluation of claims by eliminating the late or surprise disclosure of experts at trial. (Tzystuck, 124 Ill. 2d at 238.) The testimony of a treating doctor should not be surprising; the identify of treating doctors is discoverable, and under Supreme Court Rule 204 (134 Ill. 2d R. 204), a court order may be sought for a deposition. Tzystuck, 124 Ill. 2d at 238.

Plaintiffs rely upon Greene v. Rogers (1986), 147 Ill. App. 3d 1009, 1018, 498 N.E.2d 867, in which it was held that a pathologist, who had performed an autopsy of plaintiff but was not hired by plaintiff and who had testified regarding the alleged malpractice of the hospital, was an expert who should have been disclosed by plaintiff prior to trial. The court noted that the pathologist’s only factual involvement in the case was performing the autopsy and that, because he was not involved in the emergency room treatment of plaintiff and lacked actual knowledge, he could not testify to the care as a mere factual witness. Greene, 147 Ill. App. 3d at 1017.

Similar in reasoning is Hatch v. Golden Rule Insurance Co. (1990), 204 Ill. App. 3d 790, 794, 796, 562 N.E.2d 623, which held that a witness in a breach of insurance contract case was an expert because he was an employee of defendant who had not been involved in the facts of the case until he was asked to testify. The identity of the witness was unknown to plaintiffs until he was called to testify, and therefore he was not intimately involved with the subject matter of the litigation. Hatch, 204 Ill. App. 3d at 796.

In contrast is Dugan v. Weber (1988), 175 Ill. App. 3d 1088, 1093, 530 N.E.2d 1007, which held that it was the doctor’s relationship to the case and not the substance of his testimony that qualified him as a Supreme Court Rule 220 expert. A treating doctor, who had not examined plaintiff in over two years at the time of the trial in the medical malpractice case, examined plaintiff on the evening of trial for the purpose of reinforcing his opinion as to plaintiff’s disability. Defendant argued that the substance of the treating doctor’s expert testimony at trial, particularly his opinion regarding the extent of plaintiff’s disability and whether defendant deviated from the acceptable standard of care, transformed him into a Supreme Court Rule 220 expert. Unlike Greene (147 Ill. App. 3d 1009, 498 N.E.2d 867), which required disclosure under the rule of testimony of an expert who had not been retained, Dugan held that the rule required disclosure of only those expert witnesses whose relationship with the litigant arose solely because the doctor was retained to render an opinion at trial. (Dugan, 175 Ill. App. 3d at 1093.) No disclosure was necessary. Dugan, 175 Ill. App. 3d at 1093.

Occurrence witnesses who had direct involvement in the subject matter of the litigation and whose opinion testimony was not merely prepared in anticipation of trial do not need to comply with the Supreme Court Rule 220 disclosure requirements. Forest Preserve Dis trict v. Brookwood, Land Venture (1990), 199 Ill. App. 3d 973, 981, 557 N.E.2d 980.

Cases have also held that persons who, although not occurrence witnesses, were intimately involved in the matter being litigated, were employed by a party when the cause of action arose, were known to the parties long before trial, and were equally available to all parties for the purposes of discovering his testimony, are not subject to the Supreme Court Rule 220 disclosure requirements. (E.g., First National Bank v. Village of Mt. Prospect (1990), 197 Ill. App. 3d 855, 863-64, 557 N.E.2d 1257 (witness in action seeking disconnection of property from village was not required to be disclosed where he was defendant’s former director of planning and zoning and its former village planner); Voyles v. Sanford (1989), 183 Ill. App. 3d 833, 539 N.E.2d 801 (witness in personal injury suit arising out of collision was former employee of one defendant); Smith v. Central Illinois Public Service Co. (1988), 176 Ill. App. 3d 482, 531 N.E.2d 51 (project manager of one of the defendants was permitted to give his opinion on the safety of system involved at plant where plaintiff was injured).) The rationale was that the identity of the witness was not a surprise (Smith, 176 Ill. App. 3d at 494-95) and that the witness had not been retained as an expert for the purpose of litigation (Voyles, 183 Ill. App. 3d at 836-37; Smith, 176 Ill. App. 3d at 495).

Nurse Burns was not hired by defendant or otherwise retained solely to give an opinion at trial. She was an occurrence witness to a part of defendant’s medical treatment of decedent. Therefore, she need not have been disclosed as an expert under the rule. In addition, it would not have been unfair for Burns to testify about the standard of care for nurses because her identity was obviously known to plaintiffs, who called her as an adverse witness. Plaintiffs could have deposed Bums as to the existence of any opinions about defendant’s compliance with the standard of care.

The next issue concerning Burns is the harm of the error in barring her testimony that there was no need to notify a doctor at either 4 or 5 p.m. because decedent’s vital signs were stable. Generally, a jury verdict will not be reversed because of error in the admission of evidence unless there has been a denial of real justice. (Atkins v. Thapedi (1988), 166 Ill. App. 3d 471, 477, 519 N.E.2d 1073.) An erroneous ruling on evidence is harmless where the result reached was not affected by the ruling and was the only one warranted by other evidence in the case. (Atkins, 166 Ill. App. 3d at 477.) In addition, the burden is on the party seeking reversal to establish prejudice. Atkins, 166 Ill. App. 3d at 477.

Defendant does not argue how it was prejudiced by this error, but a review of the testimony on the subjects about which Burns was barred from testifying shows that the error was harmless.

The relevant testimony can be summarized as follows. The surgeon and both of plaintiffs’ retained experts (a surgeon and a nurse) testified that a doctor should have been notified at 5 p.m. The nurse who cared for decedent after the surgery wanted to contact the doctor as early as 4:45 p.m. The cardiologist testified that only if a nurse felt that the vital signs were abnormal should the doctor have been called at 5 p.m. but that the vital signs could have been considered normal at that time. Not only were there three persons who believed that a doctor should have been called at 5 p.m., as opposed to one or two persons who did not believe a doctor should have been called (Burns and possibly the cardiologist, depending on how his testimony is categorized), but one of the three persons was decedent’s treating doctor.

The issue of whether a doctor should have been called was important to plaintiffs’ case because plaintiffs’ theory was that, in addition to having failed to monitor the placement of the catheter after surgery, defendant failed to treat decedent for cardiac tamponade. Burns did not treat decedent at 4 or 5 p.m., so her opinion on whether a doctor should have been notified at those times had weight equal to an opinion of one of the two expert witnesses, who also based their opinions solely on the medical records. The admission of Bums’ testimony would have been the addition of one expert opinion that the doctor need not have been notified. But it is unlikely that this barred testimony would have swayed the jury to find that a doctor need not have been called when the treating doctor himself testified that he would have wanted notification.

Defendant next argues that the jury should not have been instructed to consider conscious pain and suffering as an element of damages because: (1) there was no evidence that decedent experienced any conscious pain and suffering from cardiac tamponade and because the abdominal pain was a natural result of the surgery; (2) there was no evidence that decedent’s anxiety was caused by the cardiac tamponade; and (3) the only compensable mental pain is that directly resulting from physical pain.

The following summarizes the relevant testimony concerning decedent’s pain and suffering. Dr. Sharp testified to the following. At 6 p.m., decedent was complaining of abdominal discomfort, which was probably a result of the surgery. Decedent would have been expected to have tremendous pain because of her large size. When he arrived at decedent’s bedside at 6:43 p.m., her brain would have been functioning. But he did not recall whether she was still conscious when she reached the operating room. He did not think that she experienced any pain as the second surgery began.

Carlson testified to the following. Decedent lost her blood pressure and became unconscious when she “coded” at 6:15 or 6:20 p.m. But Carlson also testified at another point that decedent had not lost consciousness on the way to surgery. When decedent began decompensating in her pressure, decedent looked anxious and asked Carlson what was going on. Carlson told her that there was a problem with her blood pressure and reassured her that the doctor was coming. As decedent was being wheeled to surgery, Carlson told decedent that she was being taken to surgery because some fluid in her chest had to be relieved. Decedent said that she was “okay basically.”

Beichner testified to the following. A patient awakening from surgery would experience some anxiety, but decedent’s anxiety would have been less because she was a nurse. Decedent experienced some pain at 5 p.m., but it would have taken a significant torture-like pain to have caused a heart rate of 140.

Defendant relies upon Chicago City Ry. Co. v. Anderson (1899), 182 Ill. 298, 555 N.E. 366, a personal injury suit involving back injuries, in which defendant objected to a jury instruction on pain and suffering. The court held that: (1) mental pain from “the contemplation of a maimed body” was too remote to be an element of damages; (2) the mental pain that could be considered in “this class of cases” was that suffered as the direct result or concomitant of the physical pain; and (3) mental pain that was the direct and necessary result of the physical pain, but not otherwise, was a proper element of damages. (Chicago City, 182 Ill. at 300.) The court did not specifically state that mental pain resulting from physical suffering other than physical pain was not a proper element of damages.

Other Illinois authorities have held that compensable mental suffering is that resulting from physical injury, but it is not clear whether these cases encompassed nonpainful physical injury. North Chicago St. R.R. Co. v. Lehman (1899), 82 Ill. App. 238, 239 (mental pain is a proper element of damage when it arises directly out of and is a part of the physical suffering that is endured as the result of an injury); Garvey v. Metropolitan West Side Elevated R.R. Co. (1910), 155 Ill. App. 601, 603 (mental suffering is a proper element of damages when it is directly traceable to the injury suffered); Horan v. Klein’s-Sheridan, Inc. (1965), 62 Ill. App. 2d 455, 211 N.E.2d 116 (damages could be recovered for pain and anguish of mind caused by burns); Duncan v. Martin’s Restaurant (1952), 347 Ill. App. 183, 106 N.E.2d 731 (plaintiff could recover for pain and mental anguish as a consequence of the injury and miscarriage).

C.J.S. states that compensable is mental pain and suffering that is a direct and necessary consequence of a physical injury, and the treatise does not restrict mental pain to only that resulting from physical pain. (25 C.J.S. Damages §65 (1966).) Among the possible forms of mental suffering are fright, shock, and anguish, but mere anxiety of mind that is unconnected with bodily injury is generally noncompensable. 25 C.J.S. Damages §70 (1966).

According to 22 Am. Jur. 2d Damages §251 (1988), mental anguish in a personal injury action covers the pain associated with the injury, the mental reaction to that pain, and the mental reaction to the possible consequences of the injury. One could recover for anxiety accompanying physical injury, reasonable anxiety about the consequences of the tort, apprehension of future disease, disability or paralysis, or fear about future surgery. (22 Am. Jur. 2d Damages §254 (1988).) One could also recover for mental depression as a consequence of personal injury. 22 Am. Jur. 2d Damages §253 (1988).

We hold that mental suffering caused by physical injury even without pain is compensable. Plaintiffs did not clearly prove that decedent suffered pain as a result of the cardiac tamponade and the subsequent emergency surgery, but the reasonable inference from the evidence of increasing pressure on the heart, rising pulse rate, and declining blood pressure was that decedent suffered more than she would have in a normal post-operative course. An award for decedent’s suffering was appropriate.

We also hold that it was not reversible error to instruct the jury to consider conscious pain as an element of damages. Plaintiffs argue that it was possible that decedent was conscious when she arrived in the operating room. Although the award was combined for both pain and suffering, the jury could have properly awarded $600,000 for decedent’s suffering alone. That award is therefore affirmed.

Defendant next argues that the trial court erred in instructing the jury on disability as an element of damages because there was no evidence that decedent suffered any disability. Defendant also argues that plaintiffs should not have been awarded nonpecuniary damages for disability for the time that decedent was comatose and unconscious because nonpecuniary loss should be measured by the impact of the loss on the injured person’s psyche.

Plaintiffs respond that decedent suffered brain damage that caused a coma from which she never recovered and that the coma resulted in decedent becoming totally disabled.

Defendant relies on the following cases. In Paladino v. Campos (1976), 145 N.J. Super. 555, 559, 368 A.2d 429, 431, plaintiff’s heart attack was not diagnosed in time, and the court rejected plaintiff’s argument that he should be compensated for the unlived portion of his normal life expectancy. The court held that the value of the period of unlived life was immaterial because nonpecuniary loss must be measured by the impact of the loss on the injured person’s psyche. (Paladino, 145 N.J. Super, at 557-58, 368 A.2d at 430.) The court referred to cases which applied the rule that compensation for nonpecuniary losses must be based on an awareness of the loss. Paladino, 145 N.J. Super, at 558, 368 A.2d at 430.

In Flannery v. United States (4th Cir. 1983), 718 F.2d 108, plaintiff became permanently comatose as a result of brain damage. The court stated that under the Tort Claims Act (28 U.S.C. §2674 (1988)) damages were generally determinable under State law and that the United States was to be held liable to the same extent as a private individual under similar circumstances, except punitive damages were not allowable. (Flannery, 718 F.2d at 110.) To the extent that an award gave more than the actual loss suffered by the claimant, it was punitive under Federal law. Flannery, 718 F.2d at 111.

In Flannery, there was no likelihood that plaintiff would ever become aware of anything. The court held that an award for the loss of enjoyment of life could not provide him with any consolation or ease any burden resting upon him because he could not spend the monetary award upon necessities or pleasures. (Flannery, 718 F.2d at Ill.) It was a compensatory award only to those relatives who would survive him. (Flannery, 718 F.2d at Ill.) Since the award could not provide plaintiff with any direct benefit, the award was punitive and not allowable under the Federal Tort Claims Act. Flannery, 718 F.2d at Ill.

Plaintiffs rely upon Chambers v. Rush-Presbyterian-St. Luke’s Medical Center (1987), 155 Ill. App. 3d 458, 508 N.E.2d 426, and Henry v. St. John’s Hospital (1987), 159 Ill. App. 3d 725, 512 N.E.2d 1044. But neither directly addressed the issue of whether an unconscious person may receive damages for disability. In Chambers (155 Ill. App. 3d at 467), defendants argued that there was no evidence that decedent suffered conscious pain and suffering during his coma. The court only stated that there were facts in the record that could be “said to support the award for decedent’s four-month coma.” (Chambers, 155 Ill. App. 3d at 468.) In Henry, the court upheld a $10 million award in the case of an infant with cerebral palsy and retardation against an argument that the jury’s verdict was influenced by passion and prejudice. Henry, 159 Ill. App. 3d at 735.

Reasoning similar to the Federal Flannery decision was given in McDougald v. Garber (Ct. App. 1989), 73 N.Y.2d 246, 254, 536 N.E.2d 372, 375, 538 N.Y.S.2d 937, 940, which held that there must be some level of cognitive awareness in order for a plaintiff to recover for the loss of enjoyment of life. The court stated that an award of damages for loss of enjoyment of life to a person whose injuries precluded any awareness of the loss did not serve a compensatory purpose because the award of damages in such circumstances had no meaning or utility to the injured person. (McDougald, 73 N.Y.2d at 254, 536 N.E.2d at 375, 538 N.Y.S.2d at 940.) Such an award would be punitive. McDougald, 73 N.Y.2d at 254, 536 N.E.2d at 375, 538 N.Y.S.2d at 940.

The dissent argued that the capacity to enjoy life was an attribute of an ordinary healthy individual and was compensable just as the loss of a limb. (McDougald, 73 N.Y.2d at 258, 536 N.E.2d at 377, 538 N.Y.S.2d at 942.) The inability to comprehend the degree to which plaintiff’s life had been impaired was irrelevant because the impairment existed independently of the ability to apprehend it. (McDougald, 73 N.Y.2d at 258, 536 N.E.2d at 377, 538 N.Y.S.2d at 942-43.) The dissent rejected the majority’s requirement that the award must have meaning or utility to the injured person. McDougald, 73 N.Y.2d at 258, 536 N.E.2d at 377, 538 N.Y.S.2d at 943.

In Gregory v. Carey (1990), 246 Kan. 504, 791 P.2d 1329, a man who was in a vegetative state as a result of surgery received an award for disability. Defendants objected to plaintiff’s argument that the disabled patient suffered a loss of enjoyment of life. Defendants argued on appeal that if one could not suffer mental anguish, one could not suffer loss of enjoyment of life. The court held that it was proper for plaintiff to argue that the patient had suffered a loss of enjoyment of life and that the trial court properly instructed the jury that such a loss was an element of disability, pain, and suffering. Gregory, 246 Kan. at 513, 791 P.2d at 1336.

Flannery v. United States (W. Va. 1982), 297 S.E.2d 433, 439, which decided issues certified by the Fourth Circuit (as stated in Flannery, 718 F.2d 108), held that a plaintiff in a personal injury action who was permanently semi-comatose was entitled to recovery for impairment of his capacity to enjoy life even though he was unaware of his loss.

The measure of disability damages is compensation for the disabling effect of the injury. (22 Am. Jur. 2d Damages §269, at 218 (1988).) The disabling effect logically includes the loss of enjoyment of life. We hold that disability damages may be awarded for the loss of enjoyment of life to a disabled person even if she was unaware of her loss because she had been deprived of her consciousness and therefore her ability to enjoy her life. An award for decedent’s disability was proper here.

Defendant next argues that the trial court should not have instructed the jury about disfigurement because decedent was not aware of her marred physical appearance. Plaintiffs dispute the existence of a requirement that the victim must be aware of the disfigurement.

Whether or not there is an awareness requirement, the issue need not be addressed because there is no evidence in this record of the extent and type of disfigurement allegedly suffered by decedent. But, because the jury could have properly awarded $400,000 for decedent’s disability alone, the combined award for disability and disfigurement is affirmed.

Defendant next argues that the trial court erred in barring evidence of decedent’s four to six month separation from her husband, which allegedly occurred one and one-half years prior to decedent’s death, because it was relevant to the loss of consortium claim.

Loss of consortium damages compensate a spouse for the loss of material services, companionship, happiness, and sexual intercourse. (Malfeo v. Larson (1990), 208 Ill. App. 3d 418, 425, 576 N.E.2d 364.) Even assuming that, in general, separation could be relevant to a loss of consortium claim, there is insufficient information in the record about the barred evidence to determine the relevance of the separation. Plaintiffs’ argument that the separation was informal is only supported in the record by statements of plaintiffs’ counsel, and defendant never made an offer of proof of the husband’s testimony about the separation. The barring of evidence about the separation was not reversible error.

Defendant finally argues that the verdicts totalling $7.3 million were against the manifest weight of the evidence, were the result of passion and prejudice, were punitive in nature, and were excessive as a matter of law.

The Wrongful Death Act provides for recovery for the surviving spouse and next of kin of the deceased person of such damages as the jury deems a fair and just compensation with reference to the pecuniary injuries resulting from the death to such relatives. (Ill. Rev. Stat. 1991, ch. 70, par. 2.) Loss of consortium is appropriately considered as part of pecuniary damages under the Wrongful Death Act. Drews v. Gobel Freight Lines, Inc. (1991), 144 Ill. 2d 84, 91, 578 N.E.2d 970.

For loss of consortium, decedent’s husband was awarded $1.2 million, and decedent’s children were awarded $5 million. We cannot find that these awards were unfair.

The judgment of the trial court is affirmed.

Affirmed.

TULLY, P.J., and RIZZI, J., concur.

       Justice White participated at oral argument prior to his retirement. Justice Tully read the briefs and the record and concurred with this opinion.


source: Caselaw Access Project

author: JUSTICE DOYLE

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARCUS T. GRENGLER, Defendant-Appellant.
    Second District
    No. 2—91—0829
    Opinion filed July 23, 1993.

      G. Joseph Weller and Ingrid L. Moller, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Jerome T. Genova, of Calumet City (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DOYLE

delivered the opinion of the court:

Following a jury trial in the circuit court of Du Page County, defendant, Marcus Grengler, was found guilty of robbery (Ill. Rev. Stat. 1991, ch. 38, par. 18-1 (now 720 ILCS 5/18-1 (West 1992))) and theft (Ill. Rev. Stat. 1991, ch. 38, par. 16 — 1(a)(1)(A) (now 720 ILCS 5/16 — 1(a)(1)(A) (West 1992))). Defendant was sentenced to six years’ imprisonment on the robbery conviction. Defendant filed a timely appeal of his conviction and sentence, raising the following issues: (1) whether sufficient evidence was presented to prove defendant guilty of robbery beyond a reasonable doubt; (2) whether the trial court erred by permitting the State to use his prior theft conviction as impeachment evidence; and (3) whether, if defendant’s robbery conviction is reversed, the trial court must reconsider defendant’s petition for TASC treatment when he is resentenced for his theft conviction.

According to defendant’s testimony, between 6 and 7 p.m. on February 23, 1991, defendant met some friends at a bar in Elgin. He consumed a couple of beers and then proceeded to a second bar where he drank more beer and one or more shots of tequila. Sometime around 8:30 or 9 p.m., defendant went to a third bar where he drank a few more beers and five to six more “shooters.” Defendant also smoked some marijuana. Around 10 or 11 p.m., defendant left the bar and attempted to drive home. On the way, he stopped at a convenience store, bought a 12-pack of beer, and obtained directions to Aurora. As he drove, defendant consumed six or seven of the beers. Believing he was lost, defendant stopped again and telephoned his boss for directions. Defendant continued to drive around, and, at about 1 a.m., he pulled into a gas station. Defendant parked his car and entered the station.

Don Shoup testified that he was the only employee scheduled to work at the gas station from 11 p.m. on February 23, 1991, until 7 a.m. the next morning. Shoup testified that defendant came into the station at around 1 a.m. and asked him for directions to Aurora. Shoup had been preparing a deposit, and, when defendant came into the station, Shoup put the deposit money under the counter. Shoup responded that he did not know the way to Aurora and told defendant to look at a map. Defendant took a map from a rack and the two began looking at it. During this time an unknown man entered the station, said he was lost, and asked to use a telephone. Shoup directed him to a pay phone outside the station. Two women also came into the station.

Shoup testified that after the women left, defendant asked “if I had ever seen a .25.” Shoup responded, “no,” thinking defendant meant highway 25 or Route 25. Defendant again asked if he had seen a .25, and Shoup responded, “[W]hat are you talking about?” Defendant replied, “a .25 special.” At that point, defendant put his right hand in his coat pocket and pushed up against his pocket with something and said either “[G]ive me it,” or “Give it to me.” Shoup stated that he saw something round which looked like the end of a gun pushed up inside defendant’s coat pocket. Shoup testified that he thought defendant had a gun, so he stepped back, opened the cash register, and gave defendant approximately $150 in $1, $5, and $10 bills. He did not give defendant the deposit money from under the counter. Defendant took the money, put it in his pocket, and told Shoup to give him a minute before calling anyone. As defendant left the station, Shoup recorded his license plate number and called the police immediately after defendant drove away. Shoup testified that the entire encounter lasted about 20 minutes.

Defendant offered a markedly different version of events. He testified that he asked Shoup where Aurora was and how to get there. Shoup said that he did not know and offered to show defendant a map. Shoup got a map, spread it out on the counter, and they started looking for Aurora. While they were looking at the map, another man came in asking for directions, and Shoup directed him to a 7-Eleven store across the street. Defendant did not remember anyone else entering the store.

Defendant testified that he and Shoup talked and watched television while looking at the map. Defendant also stated that he smoked one or two cigarettes during this time. Defendant testified, “[WJhen we were looking at the map and he mentioned something about, you know, you have got to be real careful because now, this is a good time to get robbed late at night and I said yeah and we were trying to figure out where the 25 was and what main roads were going through it and I asked him to look for Route 31 or 25.” Defendant stated further, “[WJhile we were standing around and trying to find this and he is looking all over and finally we found Aurora on the map and I said now where is 25 and when I said that, he said what did you say? You know where 25 is and he looked at me and he said what? You know where 25 is. Find 25. And he then, when I said that, he goes what do you mean, and I said what do you mean what do I mean. I am looking for Route 25 and then he started getting — he was backing up from the counter.” Defendant said that at this time he was pointing at the map, and, although he did not remember where his hands were, he admitted that they might have been in his pocket.

Defendant testified that after backing up, Shoup told him “hey it is okay, it is cool” and then went over to the cash register, took out the money, walked up and handed over the money, and told him to take it. Defendant testified, “I told him what do you mean. You know, what is going on.” Shoup backed away from the counter, and defendant told him, “Don’t call the cops. We can straighten this out, man.” Defendant stated that he tried to return the money, but Shoup would not take it. Shoup responded “no, no, no, no. Don’t worry. I am not calling anybody. Everything is cool, man.” Defendant testified that he “figured sooner or later someone was going to walk in and they were going to nail me and the cops were going to show up and I was going to be in royal trouble and I got out and I got in my car and started driving away.” Defendant admitted that he took the money with him when he left, rather than leaving it on the counter.

Defendant drove for about 5 to 10 minutes and then pulled into an industrial park where he sat and drank another beer. He stated that he saw several squad cars go by so he drove back on the road where he was subsequently stopped and apprehended by police. When defendant was arrested $146 was found in the left, front pocket of his coat, and a container of lip balm was found in the right, front pocket. The money consisted of $1, $5, and $10 bills.

Thomas Bialas, police officer for the Village of Glendale Heights, testified concerning a conversation he had with defendant while defendant was seated in a squad car:

“According to [defendant], he indicated to me that he was lost and driving around when he decided to pull into the [gas station] *** to try and get directions. According to [defendant], when he went into the gas station, he was obtaining instructions from the attendant on how to get to Route 25. [Defendant] indicated that a male black had entered the gas station. After *** [defendant] had obtained his directions, [defendant] walked out and got into his car. [Defendant] then said that the male black gentleman walked out of the gas station and walked over to [defendant’s] car and got in the passenger side and had a conversation with the male black; at which time, according to [defendant], the male black told him to take the money and that they would meet at the intersection of, at the 7-11 at Armitage and Glen Ellyn Roads in Glendale Heights and according to [defendant] he indicated that he was going, he decided to go ahead and take the money and then he drove off towards looking for Armitage and Glen Ellyn.”

Bialas also testified about a statement defendant made at the police station.

“[Defendant] indicated that while he was talking to the attendant he had stretched a map out on the counter. While they were looking at the map awhile, a male black did enter the store. However, at this conversation, [defendant] *** indicated to me *** the male black entered the store and left while [defendant] was still in the store ***. The male black gentleman bought something from the clerk and then exited the store. After the male black left the store [, defendant] said that the clerk made a statement to [him] regarding having to be careful about being robbed. *** According to [defendant], the conversation then turned to the gas station attendant, Mr. Shoup, starting to talk to [defendant] about taking the receipts from the register and according to [defendant] he agreed to take, I believe *** he said $186.00. He took $186.00 from the attendant and put it in his pocket and he left with an agreement with the gas station attendant, Mr. Shoup, that Mr. Shoup would come to the 7-11 at Armitage and Glen Ellyn Road and give [defendant] $50.00 of the money and [defendant] would then turn the rest of that money over to Mr. Shoup.”

Defendant denied telling police that a black guy had jumped in the car, given him the money, and told him to meet at the 7-Eleven. Defendant denied telling police that Shoup had agreed to pay defendant $50 to help him fake a theft, but admitted telling them that he thought Shoup could have been ripping off the till and might have given him the money to cover it up.

Defendant moved, in limine, that the State be precluded from introducing certified copies of defendant’s prior convictions of misdemeanor and felony theft. In particular, defendant asserted that because the charges being tried also included a theft, the risk of unfair prejudice exceeded the convictions’ probative value. Alternatively, defendant requested that the State be permitted to use only the felony conviction and that it be labeled as “a prior conviction” without reference to the fact it was a theft. The State sought to introduce both convictions, arguing that defendant’s credibility would be at issue in the case and that any prejudicial effect could be cured by a limiting instruction. The State objected to labeling the theft as “a prior conviction” and argued that it pertained to credibility because theft is a crime of dishonesty. The trial court denied defendant’s motion, allowing the State to use defendant’s June 9, 1982, felony theft conviction for impeachment purposes. The trial court ruled that the prior offense would be referred to as theft without reference to the fact that it was a felony. The trial court also gave the following instruction to the jury regarding the conviction:

“Evidence of the defendant’s previous conviction of an offense may be considered by you only as it may affect his believability as a witness and must not be considered by you as evidence of his guilt of the offense with which he is charged.” See Illinois Pattern Jury Instructions, Criminal, No. 3.13 (2d ed. 1981) (hereinafter IPI Criminal 2d No. 3.13).

The presentence report prepared in connection with this case reveals that between defendant’s June 9, 1982, conviction and the trial, defendant was incarcerated on various occasions, including two extended periods in the California State Prison system. On June 21, 1982, defendant was sentenced to a term and released in 1987. On December 11, 1987, defendant was again sentenced and released in March 1989.

Defendant initially contends that the State failed to present sufficient evidence to prove him guilty of robbery. Specifically, he asserts that the evidence failed to prove that he threatened the imminent use of force. It is well established that the standard for reviewing the sufficiency of evidence supporting a criminal conviction is whether, after considering all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. (People v. Smith (1992), 149 Ill. 2d 558, 565; People v. Hendricks (1990), 137 Ill. 2d 31, 62.) The reviewing court must consider that the jury heard and saw the witnesses and was, therefore, in the best position to assess their credibility, determine the weight to be accorded their testimony, decide what inferences to draw from the evidence, and resolve any factual disputes arising from conflicting or inconsistent testimony. (Hendricks, 137 Ill. 2d at 65; People v. Reid (1990), 136 Ill. 2d 27, 61; People v. Eyler (1989), 133 Ill. 2d 173, 191.) A reviewing court must not substitute its judgment for that of the trier of fact on those issues, particularly as to the weight of disputed evidence (People v. Herrett (1990), 137 Ill. 2d 195, 206), unless the evidence presented at trial is so unsatisfactory, unreasonable or improbable that no rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (Reid, 136 Ill. 2d at 61; see also People v. Pasch (1992), 152 Ill. 2d 133, 187.) A jury is “not required to accept any possible explanation compatible with the defendant’s innocence and elevate it to the status of reasonable doubt.” Herrett, 137 Ill. 2d at 206.

The use of force or the threat of the imminent use of force is an essential element of the crime of robbery. (Ill. Rev. Stat. 1991, ch. 38, par. 18—1 (now 720 ILCS 5/18 — 1 (West 1992)); People v. Williams (1976), 42 Ill. App. 3d 134, 138.) Defendant acknowledges that a person may be convicted of robbery if the evidence demonstrates that he or she took some action indicative of being armed in combination with words spoken to the victim, such as a threat of harm or an announcement of the robbery, even though the perpetrator was not actually in possession of a weapon. (See People v. Hollingsworth (1983), 120 Ill. App. 3d 177, 179.) Merely instructing a victim to hand over money or property, in the absence of any action which would reasonably induce the victim to believe that the perpetrator was armed or otherwise threatening force, does not amount to a robbery. (See Hollingsworth, 120 Ill. App. 3d at 179.) Proof of a threat of the imminent use of force is established by evidence that the fear of the victim was of such a nature as in reason and common experience is likely to induce a person to part with his or her property for the sake of his or her person. (Hollingsworth, 120 Ill. App. 3d at 178-79; People v. Dates (1981), 100 Ill. App. 3d 365, 371.) However, a victim’s subjective feeling of fear will not support a robbery conviction in the absence of facts to show that that fear was reasonable. Hollingsworth, 120 Ill. App. 3d at 179.

Shoup testified that defendant asked him if he had ever seen a .25 special. Defendant then put his hand in his coat pocket and pressed something up against it that looked like the barrel of a gun. Shoup said he believed defendant was threatening him with a gun. Defendant’s reference to “a .25 special” distinguishes this occurrence from a case in which there were no acts or statements by a defendant, other than having a hand in a pocket, which support the inference that the defendant was armed. (See Williams, 42 Ill. App. 3d at 138.) Defendant also said “[G]ive me it,” or “Give it to me.” It can be reasonably inferred that this comment, when viewed in conjunction with defendant’s previous comments and contemporaneous actions, was both an announcement of the robbery and a threat of force to Shoup. (See, e.g., People v. Bradford (1979), 78 Ill. App. 3d 869, 874 (placing hand in camera bag in conjunction with a demand for money constituted a threatening of imminent use of force).) Although this sequence of events was disputed by defendant, what actually happened on the morning of February 24 was a matter for the jury to resolve. Reviewing Shoup’s testimony and the reasonable inferences that can be drawn therefrom, in the light most favorable to the State, we conclude that the evidence presented was sufficient to support defendant’s robbery conviction.

Because we affirm defendant’s robbery conviction, the third issue raised by defendant, concerning the applicability of the factors the trial court considered in denying defendant’s petition for TASC treatment with respect to resentencing on the theft conviction, is rendered moot and need not be addressed. See Dixon v. Chicago & North Western Transportation Co. (1992), 151 Ill. 2d 108, 116.

The remaining issue is whether the trial court erred in permitting the State to introduce a certified copy of one of defendant’s prior theft convictions as impeachment evidence. Defendant contends that the probative value of that conviction was substantially outweighed by the danger of unfair prejudice. The State responds that the trial court acted properly and within the scope of its discretion by strictly limiting the use of the prior conviction and providing the jury with an instruction limiting its evidentiary use.

Although a prior criminal conviction is not admissible to show a defendant’s propensity to commit crime, if the prior conviction is for a felony or other crime involving dishonesty, then the trial court, in its discretion, may allow the conviction to be used to impeach the defendant if the trial court determines that the conviction’s probative value outweighs the danger of unfair prejudice. (People v. Lawler (1991), 142 Ill. 2d 548, 563; People v. Montgomery (1971), 47 Ill. 2d 510, 516; People v. Rixie (1989), 190 Ill. App. 3d 818, 826.) The trial court is to be given wide latitude in exercising this discretion. (Rixie, 190 Ill. App. 3d at 826.) The factors which are normally considered by the circuit court in exercising its discretion include the nature of the crime, nearness or remoteness of the crime, the subsequent career of the person, and whether the crime was similar to the one charged. (People v. Redd (1990), 135 Ill. 2d 252, 325; Rixie, 190 Ill. App. 3d at 826.) Evidence of a conviction used to impeach a witness is inadmissible if a period of more than 10 years has elapsed since the date of conviction or release of the witness from confinement, whichever is later. Lawler, 142 Ill. 2d at 563.

Theft has been specifically recognized as a crime of dishonesty. (People v. Spates (1979), 77 Ill. 2d 193, 201-04; People v. White-low (1991), 215 Ill. App. 3d 1, 7.) Thus, it was within the trial court’s discretion to allow defendant’s prior conviction to be used for impeachment purposes. Although the conviction was approximately nine years old, the record indicates that defendant was incarcerated during the majority of that time, and he was released from the California State Prison system less than two years before committing the present offense. The recency between release and arrest reflects negatively on defendant’s likelihood of being rehabilitated and, thus, impacts on his credibility. (People v. Wright (1991), 218 Ill. App. 3d 764, 774.) It would, therefore, be inaccurate to characterize defendant’s felony conviction as “remote.”

Defendant specifically complains that he was unfairly prejudiced because he was on trial for a theft charge and a prior theft conviction was used to impeach him. Where a prior conviction involves a crime which is probative concerning defendant’s veracity and honesty as a witness, and the evidence was admitted solely for that reason, it is not mandatory that a conviction of the same type of crime that is charged in the case for which the defendant is being prosecuted necessarily be excluded. See Whitelow, 215 Ill. App. 3d at 7; Rixie, 190 Ill. App. 3d at 826.

Defendant asserts, “the record does not indicate that the judge weighed the probative value of the use of the conviction against the prejudicial impact.” We note that the trial court in its ruling made specific reference to the Montgomery decision and the required balancing test. Because the trial court was aware of Montgomery and its provisions, it must be assumed that the judge gave consideration to the relevant factors, and the reasons for the trial court’s ruling need not appear in the record. (See Wright, 218 Ill. App. 3d at 774; People v. Marron (1986), 145 Ill. App. 3d 975, 983-84.) Further, contrary to defendant’s assertion, the record provides ample support for the conclusion that the trial judge weighed the probative value of the proffered impeachment evidence against the danger of unfair prejudice to defendant. First, the State submitted two certified convictions of theft, one a misdemeanor and the other a felony. The trial court allowed the State to introduce only the felony theft conviction and specifically prohibited the use of the term “felony” in reference to this conviction. The trial court also gave the appropriate limiting instruction (IPI Criminal 2d No. 3.13) to the jury which explained the sole purpose for which they could use the evidence of the prior conviction. These rulings demonstrate that the trial court considered and balanced the probative value and potential prejudicial effect of the impeachment evidence. Based upon the record presented, we find that the trial court did not abuse its discretion in permitting the State to introduce defendant’s prior felony theft conviction as impeachment evidence.

For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

INGLIS, P.J., and COLWELL, J., concur.


text:
    DEAN GRAUNKE, Plaintiff-Appellee, v. ELMHURST CHRYSLER PLYMOUTH VOLVO, INC., Defendant-Appellant.
    Second District
    No. 2—92—0898
    Opinion filed July 29, 1993.

      Steven P. Bloomberg and David J. Freeman, both of Moss & Bloomberg, Ltd., of Bolingbrook (Stuart D. Gordon, of counsel), for appellant.
    Lehrer, Flaherty & Canavan, P.C., of Wheaton (Maureen Flaherty, of counsel), for appellee.
   JUSTICE DOYLE

delivered the opinion of the court:

Plaintiff, Dean Graunke, brought suit against defendant, Elmhurst Chrysler Plymouth Volvo, Inc., alleging claims of common-law fraud and a violation of the Consumer Fraud and Deceptive Business Practices Act (Act) (Ill. Rev. Stat. 1989, ch. 1211/2, par. 262 et seq.) arising from the plaintiff’s purchase of a vehicle from defendant. A jury found in favor of defendant on the common-law fraud claim. Contemporaneously, a bench trial was held on the Act claim, and the trial court also entered judgment in favor of defendant on that claim. Defendant subsequently filed a motion for attorney fees pursuant to section 10a(c) of the Act (Ill. Rev. Stat. 1989, ch. 121/2, par. 270a(c)), which was denied by the trial court. Defendant filed a timely appeal contending that the trial court erred in refusing to award attorney fees.

The dispute in this case centered around plaintiff’s purchase of a Chrysler New Yorker from defendant in September 1986. Plaintiff claimed he was led to believe that he had purchased a “brand new” 1987 New Yorker but discovered two years later that he had actually received a used 1986 New Yorker. In support of this claim, plaintiff offered a copy of a buyer’s order which specified a 1987 vehicle.

Defendant maintained that plaintiff knew all along that he was purchasing a 1986 demonstration vehicle with 2,116 miles on it and that the “1987” in the buyer’s order was a mistake which was brought to plaintiff’s attention when he came to pick up the car. Defendant offered a number of documents, several of which were signed by plaintiff, identifying the vehicle as a 1986 New Yorker. These documents included a letter plaintiff wrote to Chrysler in 1987 complaining of problems with the performance of his “1986” New Yorker, an odometer statement signed by plaintiff indicating that the vehicle had 2,116 miles on it when he purchased the car, the title and registration forms for the vehicle, and an insurance application.

On January 28, 1992, the trial court entered judgment in favor of defendant on the Act claim, commenting:

“Mr. Graunke did indeed send a letter in which he referred to the vehicle as a 1986 Chrysler New Yorker *** and this letter was sent in 1987. His testimony on direct examination had repeatedly been that he first determined in summer of 1988 *** this was a 1986 vehicle.
I considered the other documents that were provided in the course of the transaction as well, and I noted Mr. Graunke’s careful manner of going through those documents on the stand. And I noted his demeanor, and quite frankly I did not find his testimony to be credible. *** I believe that it was a 1986 vehicle, he knew it, and the overwhelming majority of the documents indicated it was a 1986 vehicle.”

The trial court ordered that upon the filing of a petition for costs, defendant was to be awarded reasonable costs. On February 13, 1992, defendant filed a petition for attorney fees in the amount of $20,878.75, and costs in the amount of $515.20. This petition relied on section 10 of the Act, the documentary evidence presented at trial and the trial court’s finding that plaintiff’s testimony was not credible. Defendant provided a statement itemizing the hours expended by its attorneys in connection with this case. Deducted from that statement were $6,711.75 in charges for time “expended in connection with portions of the case not related to the Consumer Fraud Act count.” Although defendant’s petition asserted that it was necessary to be represented by two attorneys at trial, $4,655, representing the time the second attorney expended at trial, was deducted from the amount of the statement, “in order to avoid any claim of a duplication of effort.”

After a hearing on July 1, 1992, the trial court denied defendant’s request for attorney fees, but did award costs of $291.90. In reaching its decision on the question of fees, the trial court discussed the decision of the Appellate Court, Fourth District, in Haskell v. Blumthal (1990), 204 Ill. App. 3d 596:

“I think the issue that we have to address first *** is the criteria for a defendant who is the prevailing party in a Consumer Fraud Act case to be awarded attorney’s fees. As I understand it in looking at [the opinion in Haskell (204 Ill. App. 3d at 602)], ‘We have difficulty in envisioning a circumstance arising under the Act where fees should be awarded a defendant absent bad faith on the part of a plaintiff.’ ”

The trial court also noted a reference in Haskell to Friedman, Private Right of Action Under the Illinois Consumer Fraud and Deceptive Business Practices Act, 76 Ill. B.J. 748 (1987): “As Friedman has indicated, the purpose of awarding fees to a defendant is to deter bad-faith conduct by a plaintiff and to reimburse a defendant when that occurs.” (Haskell, 204 Ill. App. 3d at 602.) Finally, the court quoted from Haskell’s discussion of Supreme Court Rule 137 (see 134 Ill. 2d R. 137): “The special standard involved is whether the ‘knowledge, information, and belief’ of plaintiffs’ pleader in allegations of the complaint are not ‘warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law,’ and whether they are ‘interposed *** to harass or to cause unnecessary delay.’ ” Haskell, 204 Ill. App. 3d at 603, quoting Supreme Court Rule 137 (134 Ill. 2d R. 137).

After hearing arguments on the issue of attorney fees, the trial court commented:

“This matter bothers me a great deal because I did find the testimony of the plaintiff in this case to be incredible. I did not believe it ***.
I noted his occupation, his — the fact that the great number of documents that he was given on his second visit did indeed indicate that he had purchased a 1986 rather than 1987 automobile. His application for insurance indicated a 1986 rather than a 1987 automobile, his own letter contradicted *** his testimony in open court that the first time he learned it was a 1986 automobile was when he telephoned Chrysler in 1988.
Yet the issue here to me, whether taking the facts as presented to a lawyer *** in this case, whether there was an exercise of bad faith in filing this case.
* * *
‘ “Since the Act affords even broader consumer protection than does the common law action of fraud, it is clear that *** [the] plaintiff suing under the Act need not establish all of the elements of fraud as the Act prohibits any deception or false promise. [Citation.] And it is clear from the language of the Act, particularly its reference to false promisef ], that liability is not limited to existing material facts. Furthermore, it is well established that under the Act the intention of the seller [and] (his good or bad faith) is not important and *** [the] plaintiff can recover under the Act for innocent misrepresentations.” ’ [Buechin v. Ogden Chrysler-Plymouth, Inc. (1987), 159 Ill. App. 3d 237, 249-50, quoting Duhl v. Nash Realty, Inc. (1981), 102 Ill. App. 3d 483, 495.]
Under the Consumer Fraud Act and under this Buechin case I am not prepared to state that there’s a bad faith attempt to extend the law under these facts, I say it even though I did find his testimony to be incredible and I didn’t believe that he met his burden of proof but I’m not prepared to say there was bad faith in bringing the lawsuit, and if you wish to take the matter to the Appellate Court I would certainly understand. I think that the whole issue needs to be clarified.”

On appeal, defendant contends that the trial court erred in several respects in denying defendant’s petition for attorney fees. First, defendant argues there should be no distinction between the circumstances under which attorney fees can be awarded to a prevailing defendant and a prevailing plaintiff under the Act. Second, defendant argues that, under the Act, attorney fees should be awarded to a prevailing defendant where the complaint is not well grounded in fact, irrespective of bad faith. Finally, defendant argues that it should have been awarded attorney fees in this case even if awards to prevailing defendants under the Act are limited by a “bad faith” requirement. Plaintiff responds that the trial court did not abuse its discretion in denying defendant’s petition for attorney fees.

Section 10a(c) of the Consumer Fraud and Deceptive Business Practices Act provides:

“In any action brought by a person under this Section, the Court may award, in addition to the relief provided in this Section, reasonable attorney’s fees and costs to the prevailing party.” Ill. Rev. Stat. 1989, ch. 1211/2, par. 270a(c).

The common law does not contemplate an award of attorney fees to a prevailing party, and, therefore, statutes which allow for such awards must be strictly construed. (Carson Pirie Scott & Co. v. State of Illinois Department of Employment Security (1989), 131 Ill. 2d 23, 49; Warren v. LeMay (1986), 142 Ill. App. 3d 550, 583.) However, the primary rule in statutory construction, to which all other rules are subordinate, is to determine and give effect to the true intent of the legislature. (People ex rel. Baker v. Cowlin (1992), 154 Ill. 2d 193, 197; Warren, 142 Ill. App. 3d at 583.) In determining the intent of the legislature, a court should first consider the statutory language itself and, where that language is clear, it should be given effect without resorting to other aids for construction. Baker, 154 Ill. 2d at 197.

The language of section 10a(c) clearly and unambiguously provides that a prevailing defendant may be awarded reasonable attorney fees by the trial court. (Accord Haskell, 204 Ill. App. 3d at 600; see also Saltzman, A Brief Look at Statutory Attorneys’ Fees in Illinois, 73 Ill. B.J. 266, 277 (1985).) We find nothing in the language of the Act to limit recovery for either prevailing plaintiffs or defendants to cases in which their opponents have acted in “bad faith.” (See Haskell, 204 Ill. App. 3d at 602; see also Zervos v. Solo Cup Co. (1987), 165 Ill. App. 3d 809, 812 (showing of bad faith is not a requirement for permitting attorney fees award in ERISA actions).) As this court has previously recognized, determining whether to award attorney fees under the Act rests in the sound discretion of the trial court. Totz v. Continental Du Page Acura (1992), 236 Ill. App. 3d 891, 910; Roche v. Fireside Chrysler-Plymouth, Mazda, Inc. (1992), 235 Ill. App. 3d 70, 86.

Defendant asserts that the trial court read the decision in Haskell “as absolutely barring an award of attorney’s fees to any prevailing defendant unless it is demonstrated that the plaintiff acted ‘in bad faith’ in bringing the lawsuit,” and that the trial judge “felt he was not empowered to exercise his discretion in considering the fee issue.” In Haskell, the court stated only that it had “difficulty in envisioning a circumstance arising under the Act where fees should be awarded a defendant absent bad faith on the part of a plaintiff.” (Emphasis added.) (Haskell, 204 Ill. App. 3d at 602.) We interpret this language to be a general commentary on the policy underlying attorney fees awards, rather than a pronouncement limiting fee awards to cases in which there is bad faith on the part of a plaintiff. As we have stated, attorney fees may be awarded to either prevailing plaintiffs or prevailing defendants at the discretion of the trial court, and section 10a(c) requires neither a showing that the opposing party acted in bad faith, nor even that its pleadings are not well grounded in fact.

It is unclear from the record whether the trial court misinterpreted the holding in Haskell as precluding an award of attorney fees to defendant if plaintiff had not acted in bad faith. It is possible to read the trial court’s comments as merely emphasizing its finding that plaintiff’s claim was not brought in bad faith and, in its discretion, declining to award attorney fees.

However, taking the comments in their entirety, it appears that the trial court may have considered a finding of plaintiff’s bad faith to be a prerequisite to its exercise of discretion to award fees. The court specifically referred to the “bad faith” element as discussed in Haskell, the Friedman article and Supreme Court Rule 137. It observed that, “as a trial judge I have discretion as to whether to award fees under those standards.” (Emphasis added.) The court framed the issue before it as follows: “taking the facts as presented to a lawyer *** in this case, whether there was an exercise of bad faith in filing this case.” It then concluded that it could not say that there was bad faith in filing the suit and suggested that the issue might best be clarified by an appeal.

Because of the possibility that the judge may have misinterpreted Haskell as precluding an award of attorney fees to defendant in the absence of a showing of plaintiff’s bad faith in filing suit, we consider it best to vacate the order and remand this cause to the trial court. Our action will revest the trial court with jurisdiction either to clarify the basis of its decision or, if it misapplied the law, to reexamine its decision in light of the principles discussed herein. Whether attorney fees are to be awarded to defendant is a matter reserved to the trial court’s discretion.

In view of the additional arguments raised by the parties, it is further necessary to discuss the standard which the trial court should apply in exercising its discretion to award fees under the Act, as well as the factors which might be considered. In Haskell, the appellate court held that different standards should apply to prevailing plaintiffs and prevailing defendants when deciding the issue of discretionary attorney fees awards. Although we find Haskell to contain an excellent discussion of the subject of fee awards, we would not agree with that court’s use of the term “standards” in this context. In our opinion, it is more accurate to state that the policy considerations which come into play in evaluating a plaintiff’s application for attorney fees may not mirror those considerations applicable to a defendant’s application. Choosing to award attorney fees to either prevailing defendants or plaintiffs lies solely within the trial court’s discretion, and the only applicable “standard” by which the exercise of that discretion should be measured is whether it has been abused. (Totz, 236 Ill. App. 3d at 910; Roche, 235 Ill. App. 3d at 86.) However, there are a number of factors and considerations, as Haskell explains, which may properly bear upon the court’s ultimate decision.

Although the Act fails to specify what factors should or may be considered by a court when determining whether to award attorney fees, the legislative purpose behind permitting such awards to prevailing parties under the Act has been clearly defined and should be given consideration by a trial court. A consumer who has been defrauded in a small amount may be reluctant to bring an action for recovery out of fear that any eventual recovery would be consumed or overwhelmed by the expense of securing representation. (Haskell, 204 Ill. App. 3d at 602; Totz, 236 Ill. App. 3d at 910.) Recognizing the Illinois legislature’s desire to eradicate all forms of deceptive and unfair business practices and to grant appropriate remedies to defrauded consumers (Buechin, 159 Ill. App. 3d at 249-50), the Act permits prevailing plaintiffs to recover attorney fees at the discretion of the trial court. However, prevailing defendants are also permitted to request reimbursement for the costs and attorney fees they expend defending themselves from claims of commercial wrongdoing, presumably in part to deter baseless claims of fraud and to protect honest and fair businesses from potential abuse of the Act’s provisions (Haskell, 204 Ill. App. 3d at 601-02).

The body of law pertaining to other statutory attorney fees awards provides another source of guidance regarding the factors a court may consider when determining whether to award attorney fees to a prevailing party under the Act. (See Saltzman, 73 Ill. B.J. 266; Friedman, 76 Ill. B.J. 748; see also generally Haskell, 204 Ill. App. 3d at 599-603.) Cases interpreting section 502(g) of the Employee Retirement Income Security Act (ERISA) (29 U.S.C. § 1132(g)(1) (1988)) are also instructive. These sources suggest the following factors which a court might consider: (1) the degree of the opposing party’s culpability or bad faith; (2) the ability of the opposing party to satisfy an award of fees; (3) whether an award of fees against the opposing party would deter others from acting under similar circumstances; (4) whether the party requesting fees sought to benefit all consumers or businesses or to resolve a significant legal question regarding the Act; and (5) the relative merits of the parties’ positions. (See Haskell, 204 Ill. App. 3d at 601, citing Zervos, 165 Ill. App. 3d at 812, citing Hummell v. S.E. Rykoff & Co. (9th Cir. 1980), 634 F.2d 446, 453.) We recognize that no single factor is necessarily controlling, nor is this list an exhaustive one. (Accord Carpenters Southern California Administrative Corp. v. Russell (9th Cir. 1984), 726 F.2d 1410, 1416.) Thus, the existence of bad faith in the action by an opposing party is not the only consideration, but it is an important factor, in some cases the controlling one, which should be considered by a court deciding whether to award attorney fees.

For the foregoing reasons, the circuit court’s order denying fees is vacated, and the cause is remanded for further proceedings consistent with this opinion.

Vacated and remanded with directions.

GEIGER and QUETSCH, JJ., concur.