author: JUSTICE LEWIS PRESIDING JUSTICE GOLDENHERSH,

text:
    JEFFREY K. WILSON, Plaintiff-Appellee, v. GRANITE CITY STEEL DIVISION OF NATIONAL STEEL CORPORATION, Defendant-Appellant.
    Fifth District
    No. 5—90—0388
    Opinion filed February 14, 1992.
    Rehearing denied April 16,1992.

      GOLDENHERSH, P.J., dissenting.
    Churchill, McDonnell & Hatch, of Belleville (Joseph B. McDonnell, of counsel), for appellant.
    Robert William Bosslet, Jr., of Morris B. Chapman & Associates, Ltd., of Granite City, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

The plaintiff, Jeffrey K. Wilson, brought suit against the defendant, Granite City Steel Division of National Steel Corporation, for damages occasioned when he slipped and fell at the defendant’s manufacturing plant while picking up an order of steel coils. A jury found that the total amount of damages suffered by the plaintiff was $475,356, itemized as follows: disability and disfigurement, $50,000; pain and suffering, $20,000; medical expenses, $12,720; and loss of earnings, $392,636. The jury found further that the percentage of negligence attributable solely to the plaintiff is 5%. Reducing the total damages by that amount, the jury assessed plaintiff’s recoverable damages in the sum of $451,588.20. The trial court denied the defendant’s post-trial motion. The defendant appeals, presenting four issues for review: (1) whether the trial court improperly restricted defendant’s cross-examination of the plaintiff with respect to three matters, namely, a prior injury, a suit filed in connection with that injury, and testimony given by plaintiff and his treating physician in that suit; (2) whether the trial court improperly refused to allow the defendant to present evidence depositions of physicians who had treated or evaluated plaintiff in connection with the earlier injury; (3) whether plaintiff’s counsel improperly circumvented the trial court’s ruling in limine concerning plaintiff’s prior felony conviction; and (4) whether the closing argument of plaintiff’s counsel was prejudicial.

In the instant case, prior to the commencement of jury selection in the trial had in February of 1990, the defendant sought to present by evidence deposition, scheduled to be taken later that same day, the testimony of Dr. Richard Wan of Morgantown, Kentucky, who had treated the plaintiff for back and left-knee injuries he had sustained in an automobile accident in July of 1983. The suit arising out of this accident, Jeff Wilson v. Mark Eversole, Civil Action No. 84 — Cl—105, was tried in September of 1985 in the Muhlenberg Circuit Court of the Commonwealth of Kentucky. The defendant in the instant suit sought as well “to present certain of the testimony of the Plaintiff, himself, given in the early case in which he described the condition of his knee, the pain that it was giving him, the disability that he had, [and] the inability that he had to engage in any meaningful activity, including work.” The defendant sought, in the alternative, to introduce Dr. Wan’s testimony given at the previous trial, thereby obviating the need to take Dr. Wan’s deposition that same day. Thus, the defendant asked the court to rule that it be allowed to introduce the testimony of Dr. Wan in the previous trial as a part of the defense of the instant case “on the theory of an admission on the part of the Plaintiff concerning his physical condition.”

The plaintiff argued that as a result of the slip and fall on the defendant’s premises on August 31, 1987, he had sustained a tear of the posterior cruciate ligament of the left knee, which ligament had been unaffected by the automobile accident on July 22, 1983. The plaintiff took the position that because the posterior cruciate ligament of the left knee was not injured in the automobile accident of 1983, evidence concerning the injury to another part of the plaintiff’s left knee sustained in that accident was inadmissible. The plaintiff expressly stated that “[w]e are not talking about an aggravation of an earlier injury” but about “a separate, distinct injury.” The trial court denied the motion with respect to the use of Dr. Wan’s testimony in the prior case.

Concerning the use of Dr. Wan’s deposition, if it were taken later that same day, the defendant stated, “Your Honor, in view of the Court’s ruling, then, I take it that any attempt to take the evidence deposition of Dr. Wan would be futile, since the Court’s ruling is based upon the absence of any apparent indication that the injury alleged in this case was considered by Dr. Wan and his testimony in the previous case.” After some discussion the trial court expressed the view that whether the defendant wished to take Dr. Wan’s evidentiary deposition that day was an “administrative decision” to be made by the defendant. Later, defense counsel advised the court, “We will forego the taking of the evidence deposition of Dr. Wan, in view of the Court’s earlier ruling.”

During consideration of further pretrial motions, the plaintiff moved orally that there be no reference to any previous left-knee injury because of a lack of any evidence of a torn posterior cruciate ligament associated with the prior injury. Earlier, the plaintiff had moved in limine in writing that the trial court prohibit all references by the defendant to the prior litigation of his injury of July of 1983 “until such time as the Defendant shows to this court proper foundation for the use of said prior litigation for the purposes of impeachment with regard to a specific statement of Plaintiff or his witnesses.” Thereafter the plaintiff sought to know “the Court’s feeling about the prior incidents involving Mr. Wilson’s knee, specifically the 1983 incident where he banged his knee into a dash when his cousin had an automobile accident.” The court concluded that “the key determining factor in this case is whether or not the testimony relates to the specific injury; namely, the injury at hand, which is the torn posterior cruciate ligament in the left knee.” The trial court expressed the further view that the test

“is simply whether there has been an opinion expressed that the injuries in 1983 may have affected the injury before us now, the torn posterior cruciate ligament, and if there is such an opinion that those injuries in 1983 may have affected the condition that we have now, the same body part condition, the posterior cruciate ligament, then that’s all very fair game and is testimony which could and should come in for the jury to make a factual determination of whether, in fact, it did affect the torn posterior cruciate ligament.”

The trial court expressed its preliminary ruling on the matter as follows:

“Unless there is an opinion from one of these treaters, 1983 treaters, or some other treater, for that matter, that there was a causal connection between what happened in 1983 and the torn posterior cruciate ligament, it is not fair game.”

On direct examination the plaintiff testified in his own behalf that on August 31, 1987, he had injured his left knee when he slipped on grease and fell on the defendant’s premises. The plaintiff, who was 32 years old at the time of trial and 6 feet 8 inches tall, indicated that he had gained 60 to 65 pounds after the incident in 1987, having weighed about 235 to 240 pounds for the 10 years preceding the event. He had gained this weight, he said, because “I ain’t as active as I was. My leg keeps me from being active like I used to be. I could run and stuff. I can’t now.” He stated that after completing the eleventh grade in high school he had gone to work for his father, who ran a “backhoe business.” He had operated a backhoe for his father and had helped his father on the latter’s farm “[o]n and off until I got this job trucking,” the job he held at the time of his injury on August 31, 1987. He had gone to California, he “believe[d],” in 1984, and had obtained a job at Thrifty Warehouse, where he had worked as a stock-person for three weeks until, he said, he had been laid off. He stated that he had had a physical examination by a doctor prior to working at Thrifty Warehouse. Later he worked in California as a security guard for about three months before returning to his parents’ home in Kentucky. Thereafter he went to Alliance Truck School for 30 days. About three weeks later he began to work as a truck driver for Power Leasing, where he was employed from approximately the middle of April of 1987 until he was injured on August 31, 1987. Prior to working for Power Leasing, he said, he had passed a physical examination.

The plaintiff testified that “[i]f I walk very far, it starts hurting, swelling up, but I can’t walk on no uneven surfaces or ground or nothing like that at all.” When asked, “What happens with your knee, Jeff, if you walk for any extended period of time?” he answered, “It feels like it wants to go out and give away on me.” He has not, he said, been able to return to “trucking” since August 31, 1987. He indicated that as a result of the injury on that date he cannot ride a horse “[bjecause I can’t climb up and down off the saddle.” Asked, “Have you tried helping your dad around the farm?” plaintiff responded:

“Yes, sir. I said to myself, I said, ‘This can’t be happening to me. I’m too young.’ So, I went out and even tried to help him back on the backhoe. I tried to climb, and it started hurting me, and I would help him — one day the fence — we had a bull get through the fence. We had to tie it back up, and I went over then where the cows walk. They lay — they are pretty heavy, and they leave imprints in the ground where sometimes when it rains it gets muddy. They leave an imprint, and my leg was twisted around where it was unlevel, and I couldn’t help him stretch the bobwire.”

At the time of trial the plaintiff was working as a security guard.

On cross-examination the plaintiff reaffirmed that in 1984 he went to California and worked at Thrifty Warehouse. Thereafter, when the plaintiff was asked, “Now, as a matter of fact, isn’t it true, Mr. Wilson, that in 1984 you were under a doctor’s care for a knee problem?” he answered, “No, I don’t think it was a knee problem. It was a back-strained my back.” He stated that he remembered a Dr. Mark Crawford. Outside the presence of the jury the trial court heard argument concerning the wish of the defense to “show that [plaintiff] was not in California in ’84” and to cross-examine the plaintiff concerning “his own description of his own injuries as sustained in the 1983 accident” and “his own activity or lack of activity as a result of the 1983 accident.” In sum, the defendant wished to question the plaintiff “about his prior physical condition which involves the same knee that is involved in this claim.” The trial court ruled that “any questions about Dr. Crawford’s treatment of the quote ‘back or knee injury’ as to what Dr. Crawford did or said is [sic] inappropriate.” The trial court stated further that

“[w]hat Dr. Crawford did or said might be offered by bringing forth Dr. Crawford to testify in this matter or by having Dr. Crawford testify by deposition as to the relationship between what he treated this man for and the accident which occurred, which is the subject of this lawsuit.
I’m told, although I have not yet had an opportunity to review Dr. Crawford’s deposition, that there is no linking of the conditions treated by Dr. Crawford to the injury sustained, which is the subject of this lawsuit. It is appropriate for [defense counsel] to impeach the defendant [sic] as to inappropriate dates if, in fact, the defendant [sic] has given, I’m sorry, the Plaintiff, if, in fact, the Plaintiff has given inappropriate dates, but it is not appropriate to do so by attempting to bootstrap that to things which are otherwise verboten.
It is also appropriate to ask questions concerning the Plaintiff’s well-being prior to the accident because there have been questions asked in Direct Examination as to the Plaintiff’s well-being prior to the accident, which is the subject of this lawsuit.
That, however, doesn’t get into attempting to, or in fact getting into, diagnoses given by a physician, which is not, in some way, linked to the conditions that are the subject of this lawsuit.”

Thereafter on cross-examination the plaintiff testified that in 1984 in Hopkinsville, Kentucky, he had seen a “bone doctor” whose first name was Mark. Asked, “Did you tell Dr. Crawford at that time that you had pain in the left knee?” plaintiff answered, “Yes, I had pain in both my knees.” He admitted that the pain was the result of an automobile accident in Kentucky on July 22, 1983, in which he had struck his knees against the dashboard while a passenger in the front seat. After that accident plaintiff came under the care of Dr. Crawford. He denied having come under the care of any other doctors for the injury to the left knee. He admitted having told Dr. Crawford that the pain in his knee had started at the time of the automobile accident. Plaintiff testified that he did not remember telling Dr. Crawford that he was still complaining of pain in the left knee that had been going on since the automobile accident on July 22, 1983; asked further, “Do you deny telling Dr. Crawford on November 12th, 1984, that you were complaining of pain in the left knee which you said had been going on since the time of the accident?” the plaintiff answered, “No, I don’t deny that.” The plaintiff admitted that Dr. Wan treated him for the left-knee injury on and after August 9, 1984, and that Dr. Wan sent him to have an arthrogram of the left knee. The plaintiff “guessfed]” that the arthrogram was performed in September of 1985. The plaintiff admitted having seen Dr. Stanley Collis, an orthopedic surgeon in Louisville, Kentucky, and “guess[ed]” that he had told Dr. Collis on September 9, 1985, that his left knee was painful and swelled from time to time.

Upon further cross-examination the following questions were asked by defense counsel and the following answers were given by plaintiff:

“Mr. Wilson, what was your employment in 1983? Did you work in 1983?
A. 1983 I helped my dad on the farm and helped him with the backhoe and everything.
Q. When the accident happened in July of ’83, did you work after that?
A. Yes, sir, sure did.
Q. That same year?
A. Yes, sir, the same year.
Q. Was that helping your dad on the farm?
A. Yes, sir, it was.
Q. With the backhoe?
A. Yes, sir.
Q. Did you — were you working in 1985, in 1984, excuse me, for your dad?
A. Yes, sir.
Q. Were you working in 1985 for your dad?
A. I believe that’s when I went out to California; it was '85 or ’86 when I went out to California.
Q. Isn’t it a fact, sir, that you did not work at all from July 22nd, 1983, until at least the fall of 1985?
A. No, sir, that’s not a fact. I worked.
Q. Did you ever state that you had not worked at all from July 22nd, 1983, until the fall of 1985?
A. I was off there for a little while.
Q. For how long?
A. From my back.
Q. For how long?
A. I don’t remember how long.
Q. I’m talking about a period of some two years and three months?
A. No.
Q. Did you ever—
A. Not that long.
Q. You were never off work for that period of time?
A. No, sir.
* * *
Q. Now, in this case, Mr. Wilson, you were given certain questions, written questions, to be answered by you and signed. Do you remember that, through your Attorney, Mr. Bosslet?
A. Yes, sir.
Q. I’m going to hand you the court file which contains a document which is headed ‘Plaintiff’s Answers to Interrogatories.’ Do you see that?
A. Uh-hum.
Q. Does your signature appear at the end of that set of documents?
A. Yes, sir.
Q. And that’s under an affidavit saying, ‘Comes now the Plaintiff, Jeffery [sic] K. Wilson, and being first duly sworn on oath states he has read the Answers to Interrogatories prepared on his behalf, and that the same are true and correct’?
A. Uh-hum.
Q. That was subscribed by a notary public?
A. Yes.
Q. In those questions did you refer to this earlier accident that happened, and I’m quoting ‘in approximately 1983’ unquote?
A. Yes, sir.
Q. And in that answer did you state that you had bruised your left thigh?
A. Yes, sir.
Q. In fact, in that earlier accident, Mr. Wilson, you had injured your left knee; had you not?
A. That was the top, the very top of my knee. When that car hit us, it pushed me into the dash, and both my knees was bruised.
Q. Isn’t it true that very night when you went home your left knee was throbbing and hurting to the point—
A. On top of my kneecap was.
Q. But you continued to complain of pain in that knee for over the next two years?
A. It wasn’t that long. It was my back mostly kept hurting, not my knee.
Q. Didn’t you complain as late as September of ’85 you were still having pain in the left knee?
A. No, no, sir.
Q. Didn’t you state, Mr. Wilson, in September of 1985 that you intended to have surgery on your left knee?
A. No, sir, I didn’t. I don’t never remember saying nothing like that.
Q. Do you recall being asked this question at that time September 17th, 1985, and giving this answer. ‘Okay. Do you intend to have that surgery? Answer: Yes.’
A. No, I don’t remember saying that.
Q. Did you have surgery before December of 1987 on the left knee?
A. No, no, sir.
Q. Did you intend to have any surgery before the accident of August 31,1987, on the left knee?
A. No, sir.
Q. So, if you stated in September of 1985 that you were going to have surgery on the left knee that would be inaccurate?
A. I don’t know what you are talking about. You asked me questions. I don’t know what you are saying, have the surgery on my knee. There is nothing wrong with my knee to have surgery on; that doesn’t have nothing to do with behind my leg.
Q. There was nothing wrong with your knee in ’87?
A. That’s what I’m saying.”

At this juncture, outside the presence of the jury, defense counsel stated, “[I]n view of the witness’s testimony that there was nothing wrong with his knee and his equivocal testimony with respect to statements made by him and inquired about on Cross-Examination I ask that the Court allow more detailed questioning with respect to the testimony given by the witness in a case styled ‘Jeffery [sic] Wilson v. Mark A. Eversole, et al' tried in the Muhlenberg Circuit Court in Kentucky in September of 1985 ***.” Defense counsel thereupon enumerated several specific questions he wished to ask the plaintiff with respect to his testimony in that trial for purposes of impeachment. The trial court ruled as follows:

“Impeachment is the matter of an inconsistent statement or action given to issues that are material before the Court. The issue of whether this man ought to be prosecuted for lying in Hopkinsville, Kentucky[,] or not is not material to this Court, in any way, shape or form. It may well be relevant to the state’s attorney in Hopkinsville or wherever this trial was, but it has no bearing, whatsoever, on these issues before this Court. This Court ruled earlier that the previous trial, and it didn’t even need to rule that the previous trial is not fair game, and whether he filed a lawsuit, [defense counsel], or he didn’t file a lawsuit, you know, and I know, is inappropriate.”

After further discussion in which the defendant expressed its reliance upon Leahy v. Illinois Power Co. (1981), 103 Ill. App. 3d 487, 431 N.E.2d 390, the trial court reiterated that “[t]he impeachment must be on a material issue before the Court. That is not a material issue before this Court,” referring to

“[t]he questions of whether or not [plaintiff] lied in Hopkins-ville, Kentucky, and the general questions of his knee, [defense counsel]; I didn’t ask these doctors not to link this matter up. The Court didn’t participate in the depositions that were taken in this case, and for there to be a linking between the *** 1983 injury and the 1987 injury there must be either a medical linking or an injury to the same specific area, which we do not have in this case, [defense counsel].”

The trial court advised counsel that “the situation is close to being out of hand, and if the Court has to step in again, then there will be certain incumbent risks taken and the Court will have to deal with that.” The trial court stated that it “simply does not believe that an injury to the knee, which was an anterior injury in the first instance, is necessarily related or is even causally related to a posterior injury, as we have here.” The court added that “[t]here has been no identity of parts shown or any linking of it made or could be from any doctor. There has been none.”

Thereafter, during cross-examination, the following questions were asked and answers given:

“Q. Mr. Wilson, you had testified earlier that your leg now or since this accident of August 31st, ’87 sometimes gives out on you or feels like it wants to give out on you?
A. Yes, sir, that’s correct.
Q. Did you also have that sensation in September of 1985?
A. No, sir. I have never had a sensation like that.
Q. Did you state in September of 1985 that, and I’m quoting, ‘My left leg, if I walked on it very much, it would swell up on me and hurt me real bad. Sometimes it felt like it was wanting to go out on me, give out on me’?
A. No, I don’t remember saying that.”

Included as part of the record on review is the transcript of trial had on September 17, 1985, in Muhlenberg Circuit Court in Kentucky in the case of Jeff Wilson v. Mark A. Eversole et al., Civil Action No. 84 — Cl—105. On direct examination therein the plaintiff described the pain in his left leg following the accident of July 22,1983:

“And my left leg, if I walked on it very much, it would swell up on me and hurt me real bad.
Sometimes it felt like it was wanting to go out on me; give out on me.”

The plaintiff testified concerning an arthrogram that had been performed. In response to the following, “Now, there will be testimony in this case that as a result of that Arthrogram, Dr. Wan has recommended surgery on your leg,” the plaintiff stated, “Yes; he has.” In response to the question, “Okay; do you intend to have that surgery?” the plaintiff answered, “Yes.” The plaintiff testified that prior to July 22, 1983, he had been “a backhoe operator, truck driver” and that he had operated his own backhoe and truck, which equipment had been obtained in 1982. Following the accident, he testified, he did not continue to operate the backhoe and truck, but his father did. Thereafter, on direct examination the following questions were asked and the following answers were given:

“Okay. Now, you’re a big, strong looking fellow.
Prior to the accident, what kind of activities did you engage in?
I’m talking about other than work?
A. Swimming, horseback riding; used to run up and down the lane a little bit.
Walked a lot. Played a little basketball every now and then. And jumped rope.
Q. Have you been able to do that since this accident?
A. No; I haven’t.
Q. What work have you done since the accident?
A. What work have I done?
Q. Uh-huh.
A. Myself, I hadn’t done no work, but what the doctor told me to do.
And he told me to try it and see, see if I could do it.
And I got on the backhoe a few times and tried it, but I was hurting so bad I had to get off of it.”

He indicated that his father had operated the backhoe after the accident. Asked, “Have you had any work for any pay since the time of your accident on July the 22nd, 1983?” the plaintiff answered, “No; not as I can remember.” He stated that he had not looked for any work since that accident

“[b]ecause there ain’t nothing I can do. You either got to be a laborer; you got to have a education.
And I ain’t got a education to do nothing but, you know, like the backhoe, you know, what I’ve done all my life.
Besides the railroad, and you know, everything else consist of, you know, I have to bend, stoop, or physical activity.”

Asked on cross-examination, “What period are you claiming damages for lost wages as a result of this accident?” the plaintiff responded, “From the period I was injured until today.” On further cross-examination he stated that there were only two occasions since July 22,1983, when he was on the backhoe.

The videotaped deposition of the plaintiff’s expert, Dr. Mclnnis, is not included in the record for review, and the testimony of this witness is not included in the transcript of proceedings. Nor is the transcript of the evidence deposition of Dr. Stanley Collis taken on January 3,1990, included as part of the record for review.

Included in the record for review is the evidence deposition of Dr. Mark Crawford taken on behalf of the defendant on January 31, 1990. The trial court excluded the deposition from evidence. Dr. Crawford, an orthopedic surgeon, testified that he had first seen the plaintiff on August 22, 1983, in Hopkinsville, Kentucky. At that time he began to treat the plaintiff for a back injury, namely, a lumbar-muscle strain, that occurred in an automobile accident about one month earlier. On March 5, 1984, the witness said, the plaintiff “had a new complaint of pain in the left knee over the front of the knee.” The plaintiff “indicated the pain had started since the wreck in which he had injured his back, he said that he had struck his knee against the dash during the accident.” On November 12, 1984, the witness said, the plaintiff “came in complaining of pain in the left knee, again the same pain that had been going on since his accident of 1983. At this exam he did have crepitance beneath the knee cap when he moved his [left] knee.” Dr. Crawford testified further that

“[t]he pain was primarily over the front of the knee, it would snap and pop occasionally. He was not having any episodes of giving-way, it was not locking up on him, but it would swell occasionally.
His examination did not show any fluid in the knee. It did show the previously noticed suprapatellar crepitance, he had a fall range of motion, his ligaments were normal on exam. We made another [X]-ray of his knee and this did not show any abnormalities.
The particular view of the knee cap that showed the calcification on the [X]-ray that I had made some months previously, we did not repeat that particular view and at that time I told him that I felt even more certain at this point that this was chondromalacia since we were now feeling the suprapatellar crepitance.”

The witness stated that “[t]he chondromalacia definitely can cause symptoms as he was describing, pain over the front of the knee, worse with activities involving squatting and going up and down steps.” Dr. Crawford described chondromalacia as a condition that does not disappear with time but gradually gets worse with time. He testified that the mainstay of the treatment of chondromalacia of the patella is quadriceps-strengthening exercises which do help in the “overwhelming majority of the cases” but do not relieve the symptoms altogether and “won’t make the pain and snapping go away.” The witness explored with the plaintiff the performing of an arthroscopy primarily for diagnostic purposes; the plaintiff’s reaction was that “[h]e wanted to know what disability rating I would give him concerning the knee and based on the exam and history at that point I told him it would be 5% permanent impairment to the whole person.” To make this determination Dr. Crawford had used the “A.M.A. Guidelines.” He did not see the plaintiff after December 3, 1984. In response to the question, “Doctor, were you able to form an opinion as a result of your treatment of Mr. Wilson over that period of approximately a year and a half and based upon a reasonable degree of medical certainty as to whether the chondromalacia of the patella might have been or could have been caused by the automobile accident that he reported as having occurred in July of 1983?” Dr. Crawford answered, “Yes, I felt that certainly it was possible that it could be caused by an auto accident striking the knee against the dash. As to whether or not that was the case depends upon the accuracy of history.” Asked, “There was no other history of any trauma that was given to you at least by Mr. Wilson during your treatment of him?” the witness answered, “No, sir, he specifically related to the automobile accident.”

On cross-examination, when asked whether he had compared the left knee with the right knee for crepitance, the witness responded in part:

“[S]ince [chondromalacia] is so ubiquitous and so common and often is present without causing symptoms until some point and time I would typically go ahead and feel the opposite knee to feel if there is any crepitance there and then that will, if there is a lot of it that usually answers the question as to whether it was a preexisting condition or not.
If the uninjured knee is crackling and crunching too then you can bet it was there before the opposite knee was injured, but I didn’t state in these records that I did it and so I cannot say that I did perform that exam. I would just say that most likely knowing the way that I do exams, that most likely I did and most likely I did not feel any crepitance.”

Dr. Crawford testified that his “records specifically reflect that I did not feel that he had any ligamentous laxity.” He did not feel, he said, that the plaintiff had “any excess ligamentous laxicty [sic] or any evidence of a torn ligament.” Asked whether his treatment of the plaintiff had been “directed more towards the concern with the back or with the knee,” Dr. Crawford stated, “It was primarily the back.”

The defendant contends that the trial court’s ruling effectively prevented it from impeaching the plaintiff with respect to a major issue in the case and was, therefore, erroneous. The defendant contends further that, quite apart from the matter of impeachment, the plaintiff’s prior condition of ill-being and, in particular, his earlier claim of permanent injury to the left knee as a result of the injury in 1983 were relevant to the question of causation and to the plaintiff’s claim of permanent disability from the present injury. The defendant asserts that the “[plaintiff’s successful attempt to conceal the extent of the knee injury that he had suffered in 1983 deprived defendant of its right to present its defense on the question of damages,” arguing that the law does not require a precise, exact identity of body parts, tissues, and organs before it will allow evidence of a prior injury to the same part of the body.

The rule in Illinois is clearly to the effect that, in a cause of action for personal injury, evidence as to prior similar injuries is admissible as being probative on the issue of the amount of damages and extent of injuries. (Khatib v. McDonald (1980), 87 Ill. App. 3d 1087, 410 N.E.2d 266.) Generally, a plaintiff may be cross-examined as to his previous physical condition or injuries when they are of a nature similar to those involved in the immediate litigation. (Leahy v. Illinois Power Co. (1981), 103 Ill. App. 3d 487, 431 N.E.2d 390.) Such examination is proper to show that the plaintiff’s present physical condition is not the result of the occurrence for which the immediate suit was brought but was caused, in whole or in part, by an earlier injury or preexisting condition. (Saputo v. Fatla (1975), 25 Ill. App. 3d 775, 324 N.E.2d 34.) Such cross-examination is proper to show causation or to lay the foundation for impeachment, and, inasmuch as the fact of such prior injuries is both material and probative, it follows that impeachment thereon is proper as well. (Leahy v. Illinois Power Co. (1981), 103 Ill. App. 3d 487, 431 N.E.2d 390.) In order for a prior statement to be sufficiently inconsistent to be used for impeachment purposes, it must contravene the witness’ direct testimony on a material matter. (Chavez v. Watts (1987), 161 Ill. App. 3d 664, 515 N.E.2d 146.) Where a defendant claims he did not cause the plaintiff’s injury, evidence of another cause may arise in impeachment. (Chavez v. Watts (1987), 161 Ill. App. 3d 664, 515 N.E.2d 146.) However, before impeachment with the collateral event is considered relevant the defendant must establish a connection between the prior incident and the injury at issue. (Chavez v. Watts (1987), 161 Ill. App. 3d 664, 515 N.E.2d 146.) Such a connection is established when the defendant can prove that the prior incident actually occurred and when the plaintiff’s previous condition or injury is of a nature similar to that at issue. (Chavez v. Watts (1987), 161 Ill. App. 3d 664, 515 N.E.2d 146.) Once a connection is shown, the fact of the prior injury is material and probative, and impeachment thereon is proper. Chavez v. Watts (1987), 161 Ill. App. 3d 664, 515 N.E.2d 146.

In the recent case of O’Brien v. Thomas Steel Corp. (1989), 181 Ill. App. 3d 901, 538 N.E.2d 1162, the trial court excluded testimony concerning the plaintiff’s prior back injury. The plaintiff in O’Brien admitted having suffered a prior back injury in 1978, seven years before the back injury in question in O’Brien. However, the parties disagreed as to the severity of the plaintiff’s prior injury. In ruling that the failure of the trial court to allow the defendant to introduce evidence of the plaintiff’s prior back injury was sufficient grounds to order a new trial, the O’Brien court observed:

“Evidence of a prior injury is admissible where the injury involves the same area of the body. (Palsir v. McCorkle (1966), 70 Ill. App. 2d 425, 216 N.E.2d 682; Elberts v. Nussbaum Trucking, Inc. (1981), 97 Ill. App. 3d 381, 422 N.E.2d 1040.) The Palsir and Elberts decisions do not require that a causal connection between injuries be established in order for evidence of the prior injury to be admitted. In addition, Vandermyde v. Chicago Transit Authority (1979), 73 Ill. App. 3d 984, 392 N.E.2d 48, stands for the proposition that no medical evidence of any kind is needed to introduce the existence of a prior injury where the prior and current injuries are in the same area of the body. The Vandermyde case [which involved injury to the plaintiff’s back] has been followed by Falkenthal v. Public Building Comm’n (1982), 111 Ill. App. 3d 703, 444 N.E.2d 498, which involved an injury to the plaintiff’s head. In Falkenthal, plaintiff’s expert testified that a blow had caused a condition of narcolepsy in the plaintiff. The defendant’s expert testified that narcolepsy could not have been caused by a trauma to the head. Defendant was allowed to introduce evidence of two prior accidents that had also caused injuries to her head. There was no testimony from any expert that the two prior injuries caused plaintiff’s narcolepsy. The court found that the two prior injuries were admissible because they were to the same area of the body. Falkenthal v. Public Building Comm’n (1982), 111 Ill. App. 3d 703, 444 N.E.2d 498.
In this case the defendant states that Dr. Greenwald, the plaintiff’s treating doctor in 1978, will testify that he diagnosed plaintiff’s 1978 injury as L-5 disc syndrome, supported by a myelogram taken on January 25, 1979. The plaintiff’s present injury was diagnosed as a herniation of two spinal discs, one at L-4 back level, and the other at L-5. Certainly the two injuries are located in a similar area of the plaintiff’s body. Consequently, the injuries fall within the guidelines set forth in Palsir and Elberts and do not require the defendant to establish a causal connection between the plaintiff’s present injury and the 1978 injury.” O’Brien, 181 Ill. App. 3d at 904, 538 N.E.2d at 1163-64.

In the still more recent case of Elliott v. Koch (1990), 200 Ill. App. 3d 1, 558 N.E.2d 493, after a review of the relevant case law, the court expressly concluded that O’Brien provides the rule on the issue of whether a connection must be established between a plaintiff’s prior and present injuries in order for evidence of a prior injury to be admissible. Noting that some courts have held that evidence of a prior injury is admissible if a causal relationship between the injuries is shown or when the injury involves the same area of the body, the court in Elliott pointed out that this rule is based on the maxim that evidence which is relevant to an issue in controversy is admissible and that, in a personal injury action, such evidence is relevant to two ultimate issues in the action, namely, whether the defendant’s negligence was the proximate cause of plaintiff’s injury and the extent of plaintiff’s damages. The court noted as well that a causal connection between prior and present injuries is required only where the injuries do not involve the same area of the body. In Elliott the plaintiff argued that he was prejudiced by the introduction of evidence of his prior back injuries because defendants failed to connect these injuries to his present one. In his reply brief plaintiff argued that there was no evidence showing the prior injuries, which were diagnosed as back strain, involved injuries to a disc, his present injury; plaintiff took the position that there is a substantial difference between the back strain and herniated disc and, therefore, the prior injuries do not involve the same part of the body. The court stated that “[plaintiff’s prior injuries involve the same area of his body: the lower back” (Elliott, 200 Ill. App. 3d at 14, 558 N.E.2d at 503) and in dicta pronounced plaintiff’s argument to the effect that the prior injuries to the low back and the herniation of the disc in the lumbosacral area of the back were not to the same area of the body “wholly unsupportable” (200 Ill. App. 3d at 14, 558 N.E.2d at 503). Because the argument was raised for the first time in the plaintiff’s reply brief, the court would not consider it. In conclusion, the court in Elliott stated that the injuries involved the same area of the body and, thus, that evidence of the plaintiff’s prior injuries was admissible without any independent showing of causal connection.

In the instant case, the anatomical precision urged by the plaintiff and adopted by the trial court was inappropriately narrow for purposes of determining relevance with respect to the elements of causation and damages, particularly in light of the plaintiff’s testimony concerning pain and disability. We hold that the injury to the plaintiff’s left knee sustained in July of 1983 and the injury to his left knee sustained in August of 1987 involve the same area of the body. Thus, evidence of plaintiff’s prior injury was admissible without any independent showing of causal connection. The plaintiff’s physical condition as he described it in his earlier testimony concerning the prior injury is indisputably similar to his physical condition as he described it at trial concerning his present injury. The prior injury was a proper subject for consideration by the jury in its deliberations. We must disagree with the plaintiff’s statement in his brief that

“[cjontrary to the accusation [contained in the defendant’s brief], the trial court did NOT limit inquiry into plaintiff’s prior knee injury. The record is replete with plaintiff’s ADMITTING to defense counsel that, indeed, he had sustained a knee injury on July 22, 1983, as a passenger in his cousin’s vehicle in Kentucky, and sought repeated medical treatment for that injury *** tf

The record reveals that, particularly in the absence of the defendant’s opportunity to complete impeachment, the plaintiff was able, in his testimony before the jury, to minimize and even to distort the consequences of the prior injury to his knee as compared with previous statements he had made describing them. Nor was the defendant allowed to introduce testimony by Dr. Crawford concerning the prior injury that might have served to contradict the plaintiff’s testimony in this regard. The defendant’s case was unduly prejudiced by the trial court’s improper restriction of defendant’s inquiry into the history of the condition of the plaintiff’s left knee. Therefore, the judgment of the trial court is reversed, and the cause is remanded for a new trial.

In view of our determination with respect to the admissibility of evidence of the plaintiff’s prior injury, we need not consider the other issues presented by defendant for our review. Nor do we make any determination concerning a subissue of the first issue defendant raises, concerning the admissibility, as an exception to the hearsay rule or as an admission by adoption, of the testimony of Dr. Wan taken by evidence deposition on behalf of the plaintiff on September 5, 1985, and admitted into evidence during the trial conducted later that month.

Reversed and remanded.

HOWERTON, J., concurs.

PRESIDING JUSTICE GOLDENHERSH,

dissenting:

I respectfully dissent.

In my judgment there was no improper limitation by the trial court upon defendant’s ability to cross-examine plaintiff, Jeffrey K. Wilson, on his alleged prior injury and resultant lawsuit. The trial court consistently held to the position that the front of the knee was not the same place as the back of the knee and therefore defendant would have to establish some form of connection above and beyond both injuries being to the knee. I believe that the existent authority in this State shows the trial judge to be correct. In Marut v. Costello (1966), 34 Ill. 2d 125, 214 N.E.2d 768, affirming Marut v. Costello (1964), 53 Ill. App. 2d 340, 202 N.E.2d 853, the supreme court and the First District Appellate Court both held that allowing cross-examination was reversible error in a situation where the prior injury occurred to the upper back and resulted in operations upon the cervical spine and the subject injury of the instant suit was one involving operations on the lower back or lumbar area. Marut is “on all fours” with the instant case in which the trial judge appropriately continued to stress the difference between the anterior of a knee and the posterior of a knee and demanded some connection before allowing cross-examination.

The authorities cited by the majority are not so nearly in point as Marut and do not resolve the problems of either a lack of connection between the two injuries or a lack of injury to the same area. In Leahy v. Illinois Power Co. (1981), 103 Ill. App. 3d 487, 431 N.E.2d 390, the plaintiff disputed the reference to the prior lawsuit rather than the question of prior injury to the same area of the plaintiff’s back. In Chavez v. Watts (1987), 161 Ill. App. 3d 664, 515 N.E.2d 146, the court stated that the defendant must establish some connection between the prior incident and the instant injury, basically that the prior incident occurred and that the previous injury was of a similar nature to the one at issue. In Chavez, as in Leahy, the injury seemed to be a general back injury or a general lower back injury, and the main conflict between the parties was on attribution of injury to the first or second incident rather than the location of the injury. In Saputo v. Fatla (1975), 25 Ill. App. 3d 775, 324 N.E.2d 34, the prior and instant injuries involved the lower back. The injury in Elberts v. Nussbaum Trucking, Inc. (1981), 97 Ill. App. 3d 381, 422 N.E.2d 1040, was admitted by plaintiff’s counsel in argument before the trial court to be in the same area of the back as the injury on trial. The case of Palsir v. McCorkle (1966), 70 Ill. App. 2d 425, 216 N.E.2d 682, involved prior problems and a present injury dealing with the plaintiff’s right side, the prior injury involving the plaintiff’s right flank, groin and his knees, and in the suit on trial involved the entire right side. In the case of O’Brien v. Thomas Steel Corp. (1989), 181 Ill. App. 3d 901, 538 N.E.2d 1162, relied upon by the majority, the prior and instant injuries both involved the L-5 spinal disk.

In this case, the trial court properly observed that the claimed prior injury was to a different part of the body than the instant case and properly required connection between the two before allowing any cross-examination despite repeated attempts and requests to allow that cross-examination without the requisite connection. A review of the authorities cited by the majority shows that the trial court was correctly following case authority on this point. I therefore respectfully dissent from the majority’s opinion.


source: Caselaw Access Project

author: JUSTICE DUNN JUSTICE GEIGER,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRIAN SZYMANSKI, Defendant-Appellant.
    Second District
    No. 2—90—0054
    Opinion filed March 10, 1992.
    GEIGER, J., dissenting.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Joshua Sachs, of Chicago, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Following a jury trial, the defendant, Brian Szymanski, was convicted of the offense of forgery (Ill. Rev. Stat. 1989, ch. 38, par. 17—3(a)(1)). He was sentenced to probation for a term of two years and was ordered to pay restitution in the amount of $500. The defendant raises two issues on appeal: (1) whether he is entitled to a new trial or, in the alternative, an evidentiary hearing, because of evidence of jury misconduct; and (2) whether improper argument by the prosecutor deprived him of a fair trial. We affirm.

The defendant was charged by indictment with the offenses of forgery (Ill. Rev. Stat. 1989, ch. 38, par. 17—3(a)(1)) and theft of property in excess of $300 (Ill. Rev. Stat. 1989, ch. 38, pars. 16—1(a)(1)(A), (b)(4)). At trial, the State presented evidence that Joyce Lenart operates a business known as Trend Design Associates, Inc. The business is located at 200 North Washington Street in Naperville. On January 11, 1989, Lenart gave a signed, blank check to one of her employees, Julie Olson, so that Olson could pay to ship some packages. Olson put the check in her pocket and left the office shortly before noon. She got into her car, which was parked on the street, and went home for lunch. Approximately 45 minutes later, Olson was getting ready to do her errands and realized that the check was gone. She called the Trend Design office to have the office cancel the check.

Dorothy Strutz was employed by the Harris Bank, which she testified is located at “Washington Street, 503” in downtown Naperville. She remembered that at 12:24 p.m. on January 11, 1989, she cashed a check signed by Joyce Lenart, the wife of bank vice-president Ray Lenart. She was uneasy about the check because it was signed by Lenart but made out by someone else. She looked for Ray Lenart, but he was not in his office. She then double-checked the account for funds and double-checked the signature to make sure that it was Joyce’s signature. Strutz testified that the person presenting the check was about 6 feet tall and had light brown hair. She asked him for identification. He produced a driver’s license, or what looked like one, and Strutz compared the picture on the license to the person presenting the check and also wrote the driver’s license number on the back of the check. She stated that the identification document she examined was not a copy of a traffic ticket. Strutz could not identify the defendant as the person who cashed the check on January 11, 1989.

The check to which Strutz referred was admitted into evidence. On the front, it was dated January 11, 1989, drawn on the Harris Bank, and payable to “Brain [sic] Szymanski” in the amount of $500. This writing on the front was in black ink. The signature line showed “Joyce Lenart” written in blue ink. The back of the check was endorsed, in black ink, “Brian Szymanski.” A driver’s license number was written under the endorsement signature.

Both Lenart and Olson testified that they did not know Brian Szymanski. Lenart also testified that she had not given Szymanski permission to possess the check or any money from her account. Documents were admitted into evidence to show that the driver’s license number written on the back of the check was the defendant’s driver’s license number.

Police detective Michael Cross testified that he and Detective James Griffith interviewed the defendant on January 25, 1989. The defendant told the officers that on January 11 he was at the Naperville Recycling Center from 8 a.m. to 9 a.m. After he left the center, the defendant said, he went to the library and was there most of the day. According to Officer Griffith, the recycling center is located in the area of Fisk Street and Ogden Avenue, and the library is located seven or eight blocks south of the Harris Bank.

When the defendant allowed the officers to search his wallet, it contained no driver’s license, but a traffic ticket issued November 11, 1988. The defendant stated that he had posted his license for bond on that date. He also gave the police 14 pages of handwriting samples.

John Gorajczyk, the sergeant in charge of the identification section of the Du Page County crime laboratory, was qualified as an expert in the field of handwriting analysis. He testified that he compared the handwriting samples given by the defendant to the handwriting on the check. He stated that he could not be positive that the date, “Brain [sic] Szymanski,” and $500 notations on the front of the check were written by the defendant. He also stated that the signature on the front of the check appeared to have been written by “a different writer.” He testified that the endorsement on the back of the check was written by the defendant.

Joel Kagann, chief deputy circuit court clerk of Du Page County, testified on behalf of the defendant. He stated that pursuant to a traffic citation the defendant’s driver’s license was posted as bond on November 11, 1988. The license remained with the file in the circuit clerk’s office until it was sent to the Secretary of State on March 22, 1989.

The defendant testified that he was not in the Harris Bank on January 11, 1989. He also testified that he did not write out the check or endorse it. He stated that he was at the library on January 11, 1989, from 10:30 a.m. until 3 p.m.

During closing arguments, the prosecutor argued that Dorothy Strutz may have been mistaken when she testified that she was shown a driver’s license for identification. The prosecutor argued that Strutz might, instead, have been given a traffic ticket for identification or that the defendant might have had more than one driver’s license. During his rebuttal argument, the prosecutor argued that prosecutors were not going to make up a case against the defendant and stated, “[njobody is going to put their law license on the line over Brian Szymanski to try and make up a case against him.”

The jury returned verdicts of guilty on the forgery charge and not guilty on the theft charge, and it was discharged. The verdicts were not read until the next day since the defendant and the State had stipulated to waive polling of the jury. When the verdicts were read, the court denied the defendant’s oral motion to question two jury members who were present outside the courtroom. Those two jurors had expressed dissatisfaction with the verdicts, and one had tried to communicate with the court. The court read the verdicts into the record and entered judgment on them.

Prior to sentencing, the defendant filed a motion for a new trial. Handwritten statements of four jurors were attached to the motion. All four statements were signed, and one of the statements was signed and notarized. The statements essentially stated that one of the women on the jury had appointed herself foreperson. They also stated that at one point during the deliberations six of the jurors believed that the defendant was guilty and six believed that the defendant was not guilty. At that point, the jurors sent a note to the judge, stating that they could not reach a unanimous decision. The judge responded: “Please continue with your deliberation.” The jury eventually reached a compromise verdict, finding the defendant not guilty of theft but guilty of forgery.

The statements also stated that after the jurors received the note from the judge, the “self-appointed” foreperson drew a map of part of Naperville. One of the juror’s statements said that the map showed the location of the Trend Design office, the recycling center, the Harris Bank and the library. Another statement said that the foreperson told them that she lived in Naperville and that she used the map to demonstrate the route the defendant took from the recycling center to the bank to the library. Another juror’s statement said that the map was used to show that the buildings in question were located in a small area. All of the statements stated that the map was inaccurate.

On November 9, 1989, the court heard the defendant’s argument that, based on the statements of the jurors, an evidentiary hearing should be held to determine whether the verdict should be vacated. The trial court denied the defendant’s request for a hearing. The court found that the map referred to in the statements was merely an extension of the jury foreperson’s mental processes and was not “extraneous” to the actual deliberations.

The defendant later filed an amended post-trial motion based on allegations that the State engaged in improper closing argument and on the jurors’ statements. The defendant attached to the motion the signed, notarized statement of a fifth juror who referred to the foreperson’s map and stated that it was inaccurate. The court heard the post-trial motion on January 11, 1990. It denied the motion and sentenced the defendant to two years’ probation and $500 in restitution.

On appeal, the defendant argues that based on the supreme court’s decision in People v. Holmes (1978), 69 Ill. 2d 507, those portions of the jurors’ statements which referred to the map drawn by the foreperson were admissible to show that the jury improperly considered an informal “exhibit” which he had no opportunity to confront or refute. The defendant contends that the purpose of the map was to demonstrate that he had the opportunity to commit the crime. He argues that the trial court should have reversed his conviction on this basis or, in the alternative, should have ordered an evidentiary hearing to determine the full extent of the facts.

The Holmes court distinguished two broad categories of juror affidavits or juror testimony offered to impeach a verdict. The first category covers offers to prove the motive, method or process by which the jury reached its verdict. This type of evidence is inadmissible. (Holmes, 69 Ill. 2d at 511; People v. Boclair (1989), 129 Ill. 2d 458, 485-86; see also Tanner v. United States (1987), 483 U.S. 107, 116-27, 97 L. Ed. 2d 90, 103-11, 107 S. Ct. 2739, 2745-51.) The second category covers offers of proof of extraneous information brought to the jury’s attention or improper influence brought to bear on the jury, when that proof is not offered also to show the information’s or influence’s effect on the juror’s deliberations or mental processes. (Holmes, 69 Ill. 2d at 512, 516.) This type of evidence may be admissible. Holmes, 69 Ill. 2d at 512, 516.

The court in Holmes referred favorably to Rule 606(b) of the Federal Rules of Evidence. That rule provides, in relevant part:

“Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.” 28 U.S.C.A. Fed. R. Evid. 606(b) (West Supp. 1991).

The defendant correctly concedes that everything in the jurors’ statements which refers to their mental processes during deliberations and their compromise verdict could not properly be considered by the trial court. However, he argues that the jurors’ statements regarding the foreperson’s map were admissible to impeach the verdict and should have been considered by the trial court. We disagree.

Generally, affidavits and testimony of jurors have been found admissible to impeach a verdict when they relate to evidence not admitted at trial, but obtained outside the courtroom as a result of an independent investigation on the part of a juror or jurors. See Holmes, 69 Ill. 2d at 510, 516 (evidence that several jurors visited a shoe store to look at shoe soles and reported back to the other jurors was admissible); Haight v. Aldridge Electric Co. (1991), 215 Ill. App. 3d 353, 368-69 (evidence that a juror looked at an almanac to determine the time of sunset on the date of the accident in question was admissible); Danhof v. Richland Township (1990), 202 Ill. App. 3d 27, 30 (evidence that a dictionary not admitted into evidence was present in the jury room and was consulted by a juror regarding the definition of “proximate” was admissible); Heaver v. Ward (1979), 68 Ill. App. 3d 236, 239 (evidence that the jury foreman made an independent visit to the intersection at issue and brought a diagram of the intersection and a copy of the publication “Rules of the Road” to the jury room was admissible); People v. Spice (1977), 54 Ill. App. 3d 539, 543 (evidence that a juror visited the scene of the occurrence and described his visit to the jury was admissible).

In rendering a verdict, a jury should consider only those facts introduced into evidence. (Johnson v. Danville Cash & Carry Lumber Co. (1990), 200 Ill. App. 3d 196, 199; Heaver v. Ward (1979), 68 Ill. App. 3d 236, 239.) However, the law is well established that the jury has a right to consider the evidence in light of its own knowledge and observations in the affairs of life. (People v. Rogers (1959), 16 Ill. 2d 175, 182; People v. Dixon (1985), 133 Ill. App. 3d 1073, 1087.) The conduct at issue in this case, namely, the drawing of the map, did not involve a juror’s independent investigation or the presentation of an information source not in evidence. Rather, the conduct involved a juror’s own knowledge and observation in the affairs of life.

The facts of this case differ from the facts in cases where statements of jurors were found to be admissible to impeach the verdict in that this juror did not conduct an independent investigation into the matter. She did not visit the locations in question and then draw the map to describe what she had seen to the other jurors. Rather, the juror lived in the area and was drawing on her own familiarity with and knowledge of that area to examine the evidence before the jury. Her actions did not have the effect of producing extraneous evidence.

The trial court was correct in concluding that the jurors’ statements were inadmissible to impeach the verdict because the map was merely an extension of the foreperson’s “mental processes” and not extraneous. To hold otherwise would have the effect of requiring jurors to leave their common sense at the door before entering the jury room. Accordingly, the statements regarding the use of the map are properly classified as inadmissible statements concerning the mental processes by which the jury reached its verdict.

The defendant also contends he was deprived of a fair trial because the State engaged in improper argument. The defendant first contends the prosecutor argued facts not supported by the evidence.

The defendant specifically refers to the State’s argument that Dorothy Strutz might have taken a traffic ticket as identification to cash the check or that the defendant might have had more than one driver’s license. We agree with the State that those portions of the prosecutor’s argument either were based on the evidence at trial and reasonable inferences therefrom, or were invited by the defendant. A prosecutor’s statement based on legitimate inferences from the proof does not constitute improper argument. (People v. Albanese (1984), 104 Ill. 2d 504, 520.) Also, remarks are not improper when they are an invited response to the argument of defense counsel. People v. Nitz (1991), 143 Ill. 2d 82, 118-19.

The defendant also argues that the prosecution improperly argued its own credibility. Specifically, the defendant refers to the prosecutor’s statements regarding the so-called “conspiracy” against Brian Szymanski. The prosecutor stated the following:

“The defense in this case is to put the police on trial, put the victims on trial, put the prosecutors on trial. And that’s the easiest thing to do when you have evidence that can’t be explained away, because that license number can’t be explained away, the signature can’t be explained away.
Do you really think that we as prosecutors have nothing better to do that we have to go around making up a case against Brian Szymanski? *** Brian Szymanski isn’t somebody that some prosecutor’s career is going to be made out of. Nobody is going to be on the evening news about this case. He is not Jim Baker, he is not Zsa Zsa Gabor, nobody is going to become a celebrity. Nobody is going to put their law license on the line over Brian Szymanski to try and make up a case on him.
The only reason he is here today, the only reason, is because his signature on those exemplars matches the signature on the back of the check.”

The defense argued that the police and the prosecutors wanted to make a case against Brian Szymanski even though they had no evidence. During trial, defense counsel stated:

“And the evidence, I submit to you in this case, will show you that the State and the police have brought this here with not any evidence whatsoever to convict this individual because that’s what they want to do.”

The defense asserted that because the defendant’s name was “Brian Szymanski” he was brought to court and charged with the offense. In addition, the defense argued that the police and the prosecutors had engaged in “sloppy police work” and “sloppy work from the State,” asserting that they should have been investigating Julie Olson rather than the defendant.

Although the State should avoid argument which can be construed as injecting the integrity or authority of the State’s Attorney’s office into the dispute (People v. Roach (1991), 213 Ill. App. 3d 119, 124), in a situation such as this, where the prosecutor’s integrity has been challenged by the defendant, this type of argument is permissible. (People v. Collins (1985), 106 Ill. 2d 237, 277.) The response by the prosecutor was invited and cannot be relied on as error. Collins, 106 Ill. 2d at 277.

Accordingly, we affirm the decision of the circuit court of Du Page County.

Affirmed.

NICKELS, J., concurs.

JUSTICE GEIGER,

dissenting:

I respectfully disagree with the majority’s determination of the nature of the extraneous information used by the jury in this case. As the supreme court enunciated in People v. Holmes (1978), 69 Ill. 2d 507, and as the majority has recited, there are two general types of juror testimony or affidavits offered to impeach a verdict. In this case we consider a map drawn by one juror and presented to the other jurors as an accurate factual representation. I would find that that map is not a reflection of the thought process of the jury but, rather, the same as evidence presented to prove a disputed fact. Juror statements relating that the map was used by the jury, therefore, fall squarely into the Holmes category of evidence that may be used to impeach a verdict.

Here, the defendant sought to impeach ’ the verdict with evidence that from independent exploration one juror determined the geographical layout of an area critical to the charged offense. According to the defendant’s evidence, that juror brought the results of her determination to the jury room and drew a map for the other jurors to consider. I see no difference between that basis for impeachment and the evidence that was found to impeach the verdict in other cases. Holmes, 69 Ill. 2d at 510, 516 (evidence that several jurors visited a shoe store to look at shoe soles and reported back to the other jurors); Haight v. Aldridge Electric Co. (1991), 215 Ill. App. 3d 353, 368-69 (evidence that a juror looked at an almanac to determine the time of sunset on the date of the accident in question); Heaver v. Ward (1979), 68 Ill. App. 3d 236, 239 (evidence that the jury foreman made an independent visit to the intersection at issue and brought a diagram of the intersection and a copy of the publication “Rules of the Road” to the jury room); People v. Spice (1977), 54 Ill. App. 3d 539, 543 (evidence that a juror visited the scene of the occurrence and described his visit to the jury).

Although the map-drawing juror’s independent investigation in this case took place at some earlier time, there can be no doubt that the result of that investigation directly related to a critical issue in the case — the defendant’s physical ability to commit the offense. There also can be no doubt that the juror’s map was presented to the jury without the benefit of cross-examination or review by counsel. If we allow this type of factual matter to be presented to the jury in the jury room and not in the courtroom, we are depriving the parties to the litigation of their right of confrontation.

It is clear that the extraneous information presented as facts in the jury room was not on matters of knowledge common to all of the jurors. The rule should be, and in my opinion is, that the place for the presentation of factual matters is the courtroom and not the jury room. I would find that the juror statements here, like the evidence in Holmes, Haight, Heaver, and Spice, should have been considered in impeachment of the verdict.


author: JUSTICE UNVERZAGT

text:
    HOUSING AUTHORITY OF ELGIN, Plaintiff-Appellee, v. ANTONIA ELLIS, Defendant-Appellant.
    Second District
    No. 2—91—0759
    Opinion filed March 12, 1992.

      Gerald Brask, Jr., and Sarah Megan, both of Prairie State Legal Services, of Batavia, for appellant.
    Janet Willerman Ellingson, of Elgin, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, the Housing Authority of Elgin, filed a one-count complaint in the circuit court of Kane County seeking to evict defendant, Antonia Ellis, and demanding past rent due under a written lease between plaintiff and defendant. Following a bench trial, the court entered judgment in favor of plaintiff and ordered defendant to pay plaintiff $479.50 plus costs.

On appeal, defendant raises the sole issue of whether section 6(k) of the United States Housing Act of 1937 (42 U.S.C.A. §1437d(k) (West Supp. 1991)), as amended by the Cranston-Gonzales National Affordable Housing Act (Cranston Act) (Pub. L. No. 101 — 625, 104 Stat. 4185 (1990)), required plaintiff to afford her an administrative grievance procedure prior to initiating its forcible entry and detainer action in the circuit court.

The following facts are relevant to this appeal. Defendant rented a residence from plaintiff pursuant to the terms of a written lease agreement. On January 7, 1991, plaintiff issued defendant a notice demanding rent and possession of the residence based on her failure to pay rent. On January 23, 1991, plaintiff filed its complaint against defendant alleging that defendant had failed to pay rent in the amount of $260. The complaint sought immediate possession of the residence as well as payment of the past-due rent.

Defendant thereafter appeared pro se, and judgment was entered against her. The trial court subsequently vacated the judgment pursuant to defendant’s motion. On March 18, 1991, defendant moved to dismiss the action pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619). Defendant moved to dismiss based on plaintiff’s failure to afford her an administrative grievance procedure prior to instituting the forcible entry and detainer action.

Upon denying defendant’s motion to dismiss, the trial court entered a written order wherein it found that its denial of the motion to dismiss involved a question of law to which there is a substantial ground for difference of opinion. The order further found that an immediate appeal would materially advance the ultimate termination of the litigation. Defendant in turn applied for leave to appeal to this court pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308), and this court denied said application.

Defendant again raised at trial, by way of affirmative defense, the argument that plaintiff’s complaint should be dismissed because she was not afforded the opportunity for an administrative grievance procedure prior to the complaint being filed. She also asserted two other affirmative defenses and filed a two-count counterclaim based on breach of express and implied warranties of habitability.

On May 15, 1991, following a bench trial, the trial court entered judgment in favor of plaintiff and against defendant in the amount of $479.50 plus costs and awarded possession of the residence to plaintiff. On June 10, 1991, defendant filed her notice of appeal. On that same date, she filed, pursuant to Supreme Court Rule 305(a) (134 Ill. 2d R. 305(a)), a motion for stay of the judgment pending appeal, which motion was granted.

Defendant maintains on appeal that plaintiff’s complaint should be dismissed because she was not afforded the opportunity to have an administrative grievance procedure prior to the complaint being filed. Specifically, she contends that pursuant to a recent amendment to the United States Housing Act of 1937 (42 U.S.C.A. §1437d(k) (West 1990)) plaintiff can no longer utilize Illinois’ forcible entry and detainer procedure in lieu of providing her a formal grievance procedure before evicting her from public housing. According to defendant, the amendment took effect upon its enactment regarding eviction proceedings of the type at issue in this case.

Plaintiff responds initially that while the amendment prohibits a housing authority from pursuing an eviction of the type at issue here absent its affording the tenant an administrative grievance procedure, the amendment does not take effect until the effective date of the final rules implementing the amendment or 180 days after the amendment's enactment, whichever is earlier. Plaintiff further argues that even if the amendment required an administrative grievance procedure in this case, the judgment should be affirmed because defendant has already received due process and “has had her ‘day in court.’ ”

We find no Illinois case addressing the issue in this case. However, the United States District Court for the Northern District of Illinois has recently decided this precise question. (See Sims v. Kemp (N.D. Ill. 1991), 769 F. Supp. 279.) In that case, the district court interpreted the applicability clause in section 503(d) of the Cranston Act enacted on November 28,1990. Sims, 769 F. Supp. at 284.

The applicability provision of section 503(d) states:

“APPLICABILITY. — Any exclusion of grievances by a public housing agency pursuant to a determination or waiver by the Secretary (under section 6(k) of the United States Housing Act of 1937, as such section existed before the date of the enactment of this Act) that a jurisdiction requires a hearing in court providing the basic elements of due process shall be effective after the date of the enactment of this Act only to the extent that the exclusion complies with the amendments made by this section, except that any such waiver provided before the date of the enactment of this Act shall remain in effect until the earlier of the effective date of the final rules implementing the amendments made by this section or 180 days after the date of the enactment.” Cranston-Gonzales National Affordable Housing Act, Pub. L. No. 101-625, §503(d), 104 Stat. 4185 (1990).

In Sims, the housing authority contended that the tenant was not entitled to an administrative grievance procedure because no final rules had been implemented and because 180 days had not elapsed from the date of the amendment. (Sims, 769 F. Supp. at 284.) In disagreeing with the housing authority, the court pointed out that under the applicability provision an exclusion of an administrative grievance procedure would be effective after the November 28, 1990, enactment date only if such exclusion complied with the amendment, that is, that it was based upon a tenant’s criminal activity which threatens the health, safety, or right to peaceful enjoyment of the premises or involves drugs. (Sims, 769 F. Supp. at 284.) The court further explained that a waiver by the Secretary of Housing and Urban Development (HUD) is a determination by HUD that a State provides due process in its eviction practices, whereas an exclusion is a specific housing authority action which denies grievance procedures to tenants pursuant to the HUD waiver. (Sims, 769 F. Supp. at 284.) The court also concluded that the language in the amendment pertaining to an extension of its effective date applies to waivers rather than exclusions. (Sims, 769 F. Supp. at 284.) While HUD’s determination that State court procedures provide adequate due process to tenants (waiver) is effective past the enactment date of the Cranston Act, the use of exclusions against tenants is subject to the amendment as of the enactment date of the Cranston Act. Sims, 769 F. Supp. at 284.

While we are not bound by the Sims decision, we find its reasoning to be well-founded and persuasive. Moreover, it comports with the plain language of the applicability clause which clearly distinguishes between exclusions of grievances by a public housing authority and waivers by the Secretary of Housing and Urban Development for purposes of the effective date of the amendment. Consequently, plaintiff in this case could not proceed to evict defendant pursuant to the State forcible entry and detainer statute without first affording defendant the opportunity to seek relief pursuant to an administrative grievance procedure.

We are also unpersuaded by plaintiff’s argument that we affirm the judgment of the circuit court because defendant was afforded due process through the State eviction proceeding and therefore suffered no harm in the absence of an administrative grievance procedure. If we were to apply such a harmless error analysis, we would effectively render the amendment meaningless. The primary purpose of the amendment is to guarantee tenants an administrative grievance procedure in the event a dispute arises between themselves and the public housing authority regarding their tenancy. It expressly eliminates the option of proceeding under an approved State eviction statute rather than providing an administrative grievance procedure. Proceeding under a State eviction statute rather than affording an administrative grievance procedure is no longer an option, and, as such, the question of whether a public housing tenant would receive due process in a State eviction proceeding is irrelevant.

For the foregoing reasons, we vacate the judgment of the circuit court of Kane County and remand this cause with instructions to dismiss the plaintiff’s complaint.

Vacated and remanded with directions.

INGLIS, P.J., and GEIGER, J., concur.


author: JUSTICE DiVITO JUSTICE McCORMICK,

text:
    FRED CRAWFORD, Plaintiff-Appellee, v. ANTHONY SCHAEFFER, Defendant-Appellant.
    First District (2nd Division)
    No. 1—90—1408
    Opinion filed February 18, 1992.
    Rehearing denied March 25, 1992.
    McCORMICK, J., specially concurring.
    Wildman, Harrold, Allen & Dixon, of Chicago (Helaine W. Heydemann, Ruth E. VanDemark, and Robert M. Collins, of counsel), for appellant.
    Michael W. Rathsaek, of Chicago (Louis S. Goldstein and Cindy G. Flux-gold, of counsel), for appellee.
   JUSTICE DiVITO

delivered the opinion of the court:

The issue we address in this case is whether the circuit court had discretion to consider defendant’s summary judgment motion prior to addressing plaintiff’s motion to voluntarily dismiss his complaint, pursuant to section 2 — 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1009). For reasons that follow, we vacate the court’s order of dismissal, granted because the court concluded it had no discretion to deny it, and remand for a hearing to determine whether plaintiff complied with all the requirements of the voluntary dismissal statute.

In January 1984, plaintiff Fred Crawford filed a medical malpractice claim against defendant Anthony Schaeffer and Northwestern Memorial Hospital. Beginning in March 1984, the parties sought to have experts identified. In August 1986, after no expert had been identified, the circuit court ordered plaintiff to identify his expert within two months and defendants to do so by March 1987. Ten months later, no one having complied, the circuit court entered an order barring each side from presenting expert witnesses. The court later vacated the order and gave plaintiff until November 1987 and defendants until March 1988 to identify experts. Toward the end of 1987, the hospital moved for summary judgment. In an agreed order, the court dismissed the hospital voluntarily without prejudice.

In May 1988, defendant Schaeffer again asked plaintiff to identify his expert. Receiving no response by July, defendant moved for summary judgment or, alternatively, to extend discovery. Plaintiff identified his expert the next day. One day later, the court ruled on defendant’s motion, extending discovery into 1989. In March 1989, the court granted defendant’s motion to extend discovery yet again. In November 1989, defendant moved for sanctions because plaintiff had not presented his expert for deposition. The court ordered that the deposition occur by January 15, 1990.

Plaintiff finally presented his expert for deposition on February 1, 1990, approximately four weeks before the trial date. The expert could not say within a reasonable degree of certainty that plaintiff’s injury had been caused by defendant’s deviation from the applicable standard of care. Defendant ordered á transcript of the deposition, and on Tuesday, February 13, 1990, he filed a motion for summary judgment, attaching the transcript as support, and served it on plaintiff. Unbeknownst to defendant, however, plaintiff had filed a motion for voluntary dismissal on Friday, February 9, at 4:27 p.m., one court day earlier. On February 13, plaintiff served defendant with notice of the motion and its February 15 hearing date.

At the February 15, 1991 hearing, the circuit court reluctantly granted plaintiff’s motion, believing that it had no discretion to do otherwise because plaintiff had filed first, citing Gibellina v. Handley (1989), 127 Ill. 2d 122, 535 N.E.2d 858. Defendant moved for reconsideration, but the court denied the motion. It stated that the Gibellina exception to a plaintiff’s virtually absolute right to nonsuit did not apply because plaintiff’s prior-filed motion could not be viewed as an attempt to avoid defendant’s later-filed potentially dispositive motion.

At common law, a plaintiff had the right to voluntarily dismiss with impunity at any time before the moment a trial court entered its ruling or a jury’s verdict. (Gibellina v. Handley (1989), 127 Ill. 2d 122, 132, 535 N.E.2d 858, 863.) The Illinois legislature modified this right by statute in the Practice Act of 1907 and in the Civil Practice Act of 1933. (For history and commentary, see 4 R. Michael, Illinois Practice §42.2, at 340 (1989); see also Ferrini & Winter, Voluntary Dismissals — From Shield to Sword by the Convergence of Improvident Actions, 21 J. Mar. L. Rev. 549, 549-52 (1988); Johnston, The Voluntary Dismissal in Illinois — A Sword or a Shield?, 21 J. Mar. L. Rev. 537 (1988); Comment, The Vanishing Right of a Plaintiff to Voluntarily Dismiss His Action, 9 J. Mar. J. Prac. & Proc. 853, 854-57 (1976).) Now, under section 2 — 1009 of the Code of Civil Procedure:

“The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party’s attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause.” (Ill. Rev. Stat. 1989, ch. 110, par. 2—1009(a).)

As recently as 1984, our supreme court, deferring to the legislature, refused to interpret this language as allowing any infringement on the unfettered common law right to nonsuit. Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 308, 472 N.E.2d 787, 789.

Judicial erosion of the right to voluntarily dismiss commenced, however, with O’Connell v. St. Francis Hospital (1986), 112 Ill. 2d 273, 492 N.E.2d 1322. There, a conflict arose between the voluntary dismissal statute and Supreme Court Rule 103(b) (87 Ill. 2d R. 103(b)), which concerns dismissal for failure to exercise due diligence in service of process. Our supreme court held that where a statute conflicts with a rule of the supreme court in such a way that the statute unduly infringes upon the judiciary’s constitutional duty and authority to administer the courts, the rule will control. (O’Connell, 112 Ill. 2d at 282-83, 492 N.E.2d at 1326.) Subsequently, in Gibellina, the supreme court held that “the trial court may hear and decide a motion which has been filed prior to a section 2 — 1009 motion when that motion, if favorably ruled on by the court, could result in a final disposition of the case.” (Emphasis in original.) (Gibellina, 127 Ill. 2d at 138, 535 N.E.2d at 866.) The court acknowledged that it was announcing a “clear departure from prior precedent,” but it found an alarming increase in abusive invocation of the voluntary dismissal statute to avoid adverse rulings or decisions on the merits, noting that this abuse of the unlimited right to nonsuit and refile had begun to “infringí] on the authority of the judiciary to discharge its duties.” Gibellina, 127 Ill. 2d at 137, 535 N.E.2d at 866.

More recently, in Fumarolo v. Chicago Board of Education (1990), 142 Ill. 2d 54, 566 N.E.2d 1283, the supreme court held that under certain circumstances, even a later-filed dispositive defense motion could preclude nonsuit. There, the defendant filed for summary judgment after the plaintiff filed for nonsuit. Nevertheless, because the defendant had informed both the plaintiff and the court at an earlier hearing that he soon would file his motion, the supreme court viewed the defense motion as “before the court” on the day the plaintiff filed for nonsuit. This posture, the court ruled, triggered application of Gibellina and allowed the circuit court to exercise its discretion to deny the plaintiff’s motion. In its most recent interpretation of Gibellina, the Illinois Supreme Court clarified that the circuit court may, but need not, consider a defendant’s potentially dispositive motion prior to granting a plaintiff’s section 2 — 1009 motion, thereby resolving the uncertainty created by dicta in People v. Woolsey (1990), 139 Ill. 2d 157, 170, 564 N.E.2d 764, 769, that a circuit court “should” consider such defense motions before addressing a motion for nonsuit. Bochantin v. Petroff (1991), 145 Ill. 2d 1, 6-7, 582 N.E.2d 114, 117.

Here, defendant urges us to hold that the circuit court erred in believing that it had no choice but to grant plaintiff’s motion. Gibellina, he argues, permits a court to consider a potentially dispositive defense motion, even if filed after a section 2 — 1009 motion, so long as the defense motion is pending when the nonsuit motion is heard. Because motions remain alive for at least 90 days even if not set for hearing (Circuit Court of Cook County, Rule 2.3), he raises the specter of a flood of secret “ ‘prophylactic’ nonsuits” filed every 90 days to ensure that the plaintiff always prevails. To allow consideration of his motion, he contends, would merely balance the rights of the parties: a plaintiff would retain the right to move for dismissal, but the courts could scrutinize the motion for abuse if a defendant has filed a dispositive motion. To rule otherwise, he warns, would reward a flagrant abuse of the voluntary dismissal statute, contrary to the intent of Gibellina, and would “create an arbitrary rule applying only to motions technically filed prior to [the filing of] a plaintiff’s [section] 2 — 1009 motion,” contrary to our supreme court’s recent application of Gibellina in Fumarolo. He asks this court to vacate the circuit court’s order and either to grant him summary judgment or, alternatively, to remand with a ruling that the circuit court may consider his motion if it finds that plaintiff’s motion is an abuse of the voluntary dismissal statute.

Plaintiff responds that the circuit court was required to grant his motion because the narrow category of exceptions found in Gibellina is inapplicable here. This is a race to the courthouse, he argues, which he won by filing first. He describes Gibellina as “indisputedly clear” on this point, remarking that at the February 15 hearing, defense counsel himself acknowledged that filing dates are determinative. Reversal, he asserts, would be tantamount to overturning Gibellina’s rejection of the Federal rule (Fed. R. Civ. P. 41(a)), under which a plaintiff’s absolute right to nonsuit automatically terminates upon service of an answer or a summary judgment motion. If Gibellina found that a plaintiff should not have an unfettered right to block a dispositive defense motion, he contends, the same logic mandates that such defense motions may not be used to thwart a plaintiff’s right to dismiss. Defendant rejoins that plaintiff’s view is “overly simplistic” and that plaintiff’s reading of Gibellina is too technical and narrow.

Both parties’ arguments miss the mark. Defendant’s balancing test rests on the unsupported propositions that he has a “right” to have his summary judgment motion heard and that plaintiffs are entitled only to move for nonsuit, not to have the order entered almost automatically. In addition, defendant’s dire warnings about secret “prophylactic” motions lack substance. He neglects to mention that a plaintiff must notify other parties within three court days that a motion is filed (Circuit Court of Cook County R. 2.1(d)) and that Supreme Court Rule 184 allows a defendant himself to set a plaintiff’s filed motion for hearing (134 Ill. 2d R. 184), thereby forcing a plaintiff either to withdraw the motion or to squander the sole opportunity to nonsuit and refile (Flesner v. Youngs Development Co. (1991), 145 Ill. 2d 252, 254, 582 N.E.2d 720, 721; Gibellina, 127 Ill. 2d at 134, 535 N.E.2d at 864).

Plaintiff’s arguments fare no better. His contention that reversal here would be equivalent to an embrace of the Federal rule is groundless. Under the Federal rule (Fed. R. Civ. P. 41(a)), a plaintiff loses his right to dismiss as soon as a defendant serves a summary judgment motion or an answer, the latter event usually occurring shortly after a complaint is filed. It is absurd to equate early, automatic termination of the unfettered right to dismiss with allowing, but not requiring, a court to deny a nonsuit motion after six years of dilatory pretrial maneuvering. Too, plaintiff’s analogy between a section 2 — 1009 motion and a summary judgment motion ignores a crucial distinction between the two: the former, unlike the latter, allows refiling and thus does not result in final disposition. People v. Woolsey (1990), 139 Ill. 2d 157, 163, 564 N.E.2d 764, 766 (likening nolle prosequi to nonsuit, neither of which constitutes a final disposition).

The real question here is whether plaintiff’s “race to the courthouse” metaphor is apt. We believe not. As our supreme court noted in Fumarolo, to view filing dates alone as determinative is “too formalistic and rigid.” Instead, the critical inquiry is whether a defendant “put[s] a potentially dispositive motion before the court prior to the filing of the section 2 — 1009 motion.” (Fumarolo, 142 Ill. 2d at 68, 566 N.E.2d at 1289.) In this case, because neither the circuit court nor plaintiff was aware of defendant’s intention to file his motion for summary judgment, that motion could not be said to have been “before the court” on February 9, 1990. Even so, however, the circuit court might have erred in believing it had no choice but to grant plaintiff’s motion. To qualify for the right to voluntary dismissal under section 2 — 1009, a plaintiff must do more than file.

On this point, our recent opinion in Vaughn v. Northwestern Memorial Hospital (1991), 210 Ill. App. 3d 253, 569 N.E.2d 77, appeal denied (1991), 139 Ill. 2d 605, 575 N.E.2d 924, is instructive. There, we held that noncompliance with even one of the three requirements of section 2 — 1009 will cause a plaintiff to lose his right to voluntarily dismiss. (210 Ill. App. 3d at 257, 569 N.E.2d at 79.) In Vaughn, at a hearing on the defendants’ motion to dismiss, the plaintiff presented a section 2 — 1009 motion with no prior notice to the defendants. The circuit court granted the defendants’ motion. We affirmed because the plaintiff had violated the notice requirement of section 2 — 1009 by not complying with the notice provision of the local rules. The same question arises here.

Under the rules of the circuit court of Cook County, applicable here, a moving party must serve all other parties with notice of the filing of a motion within three court days of the date on which the motion is filed. (Circuit Court of Cook County R. 2.1(d).) In addition, for all but emergency or ex parte motions, the moving party must serve the other parties with notice of hearing either personally by 4 p.m. no later than two court days in advance of the hearing or, alternatively, by mail posted at least five court days prior to the hearing. (Circuit Court of Cook County R. 2.1(d).) In the case of a section 2— 1009 motion, strict compliance with these requirements is preferred, contrary to the holding in Metcalfe v. St. Elizabeth’s Hospital (1987), 160 Ill. App. 3d 47, 513 N.E.2d 12, which we expressly rejected in Vaughn (210 Ill. App. 3d at 258, 569 N.E.2d at 80).

Here, the record reveals that on February 9, plaintiff filed his motion and obtained a February 15 hearing date, and that sometime on February 13, the following court day, he personally served defendant with notice of the motion and of its hearing date. Because plaintiff filed his motion only three court days prior to the hearing date, of course, he could not have mailed the notice of hearing at least five court days before the hearing date. As a result, plaintiff could not have complied with the posting requirements of Rule 2.1(c). This finding does not end our inquiry, however, because plaintiff might have complied with the personal service requirement of Rule 2.1(c), given that the notice of hearing states that plaintiff personally served defendant with the notice on February 13, two court days prior to the February 15 hearing date. Although defendant’s counsel stated at the hearing that he filed his motion on February 13 without knowledge of plaintiff’s motion, this lack of knowledge is irrelevant when determining whether plaintiff effected personal service within the meaning of the rule prior to 4 p.m. If, for example, plaintiff left his notice with the receptionist at defense counsel’s office, plaintiff complied with Rule 2.1(c). The record, however, discloses no conclusive information as to whether defendant was personally served prior to 4 p.m. that day. Accordingly, we are unable to determine whether plaintiff complied with the notice requirement of the local rules, which we consider an integral part of section 2 — 1009. Moreover, nothing in the record indicates that plaintiff paid, or even tendered, defendant’s costs prior to entry of the order, as section 2 — 1009 also requires. Without this information, the circuit court could not know whether it had no choice but to grant plaintiff’s motion. Accordingly, we must vacate the court’s order and remand for an evidentiary hearing on these questions. If plaintiff cannot prove compliance with the notice and payment requirements of section 2 — 1009, he abdicated his absolute right to dismiss, and the court may exercise its discretion to consider defendant’s motion. If plaintiff did comply, the circuit court will have no choice but to grant the motion.

We recognize that under current case law the right to nonsuit is virtually unassailable. Accordingly, we hesitate to impose any restrictions, no matter how warranted by circumstances and policy, absent guidance from the legislature or the supreme court. Like the Gibellina court, however, we are troubled by the prospect of giving our tacit approval to plaintiff’s egregious abuse of the voluntary dismissal statute. The record before us leaves little doubt that the catalyst for plaintiff’s motion was his realization that after six years, he could not unearth a single expert who would support his claim of negligence. Affirmance here would require that we ignore the mandate, from both the legislature (Ill. Rev. Stat. 1989, ch. 110, par. 1—106) and the supreme court (134 Ill. 2d R. 2), to focus on ending controversies according to the substantive rights of the parties. This we decline to do.

Judgment vacated and remanded.

HARTMAN, P.J., concurs.

JUSTICE McCORMICK,

specially concurring:

The majority, in its insightful opinion, has taken every conceivable caution to sustain plaintiff’s right to pursue his cause of action. The highly touted level playing field has been graded level, smoothed and is now a sheet of ice. The plaintiff, like a skilled skater taking advantage of the absence of friction, has travelled a great distance by the exertion of a minimal force. By the mere filing of a lawsuit, plaintiff has glided through our legal system for six years. During this trek, plaintiff has failed to produce the expert witness that is necessary to establish a prima facie case. Should the circuit court find that the requirements of section 2 — 1009 have been met, plaintiff will be in a position to commence his second six-year sojourn through our legal system. Enough is enough. Absurd and unjust results such as this should not be allowed to continue.

In 1984, the Illinois Supreme Court suggested that the legislature take steps to amend section 2 — 1009 to prevent abuses of this kind. (Kahle v. John Deere Co. (1984), 104 Ill. 2d 302, 472 N.E.2d 787.) I strongly urge the legislature to heed the supreme court’s suggestion and to act promptly to prevent further abuses of this kind.

      Due to a three-day holiday weekend, the court had been closed on February 12.