author: JUSTICE McNULTY

text:
    LOUISE SKONBERG, Adm’r of the Estate of John T. Skonberg, Plaintiff-Appellee, v. OWENS-CORNING FIBERGLAS CORPORATION, Defendant-Appellant.
    First District (5th Division)
    No. 1—89—1315
    Opinion filed May 3, 1991.
    Rehearing denied August 5, 1991.

      Kelley, Drye & Warren, of Chicago (John Dames, Eric F. Quandt, Peter E. Carlson, and Carolyn Quinn, of counsel), for appellant.
    Burke & Burke, Ltd., of Chicago (John M. Burke, Molly C. Mason, and Thomas M. Lake, of counsel), for appellee.
   JUSTICE McNULTY

delivered the opinion of the court:

Plaintiff Louise Skonberg, as administrator of the estate of her husband, John Skonberg (decedent), filed a wrongful death and survival action against defendant Owens-Coming Fiberglas Corporation (OCF) and several other manufacturers and distributors for injuries allegedly sustained by decedent as a result of exposure to asbestos-containing products manufactured, sold or distributed by defendants. Plaintiff sought compensatory damages, asserting a theory of strict liability in tort against OCF. A jury verdict was entered in plaintiff’s favor and plaintiff was awarded a final judgment amount of $225,000.

On appeal, OCF contends that the circuit court improperly denied both its motion for judgment notwithstanding the verdict and also its motion for a new trial.

According to evidence adduced at trial, decedent was exposed to asbestos products during his employment as an insulator from approximately 1946 to 1977. Decedent was exposed to the asbestos products of OCF between 1960-1964. Mr. Skonberg’s death resulted from asbestosis and cancer of the lung. Decedent smoked one package of cigarettes per day from at least 1941 until November of 1977. Mrs. Skonberg admitted that although she and decedent knew of the warnings on cigarette packages, they “paid no heed” to them and continued smoking until decedent became ill. Plaintiff also testified that decedent received the Asbestos Workers magazine and read it on a regular basis in the 1960’s. Additionally, in the late 1960’s plaintiff discussed with decedent information he received from his union concerning the health hazards of asbestos but never discussed the fact that it could cause cancer.

One of plaintiff’s medical experts, Dr. Kittle, testified at trial that there is “a very definite relationship between asbestos and lung cancer.” Dr. Kittle also testified that individuals who are exposed to cigarette smoke as well as asbestos have between a 40 to a 90 times greater likelihood of developing lung cancer than those who did not come into contact with asbestos. Dr. Kittle also admitted that if an asbestos worker did not smoke, he would not get lung cancer.

Plaintiff’s other medical expert, Dr. Cugell, testified that smokers who are exposed to asbestos “have from 50 to 90 times the risk of developing cancer of the lung compared with people with neither of those hazards.” In Dr. Cugell’s opinion, the decedent suffered from asbestosis which was caused in part by his exposure to OCF asbestos products. He based his opinion on the “well-established and acknowledged synergistic effect between smoking and asbestos exposure and the occurrence of lung cancer.” On cross-examination, Dr. Cugell testified that cigarette smoking, combined with decedent’s pre-1960 asbestos exposure, could have caused decedent’s cancer.

OCF moved for a directed verdict at the end of plaintiff’s case in chief, insisting that plaintiff failed to introduce any evidence proving that OCF had a duty to warn decedent or that the lack of warning on its products was the proximate cause of his injuries. The court denied OCF’s motion.

The court ruled in OCF’s case in chief that eight issues of a union publication called Asbestos Worker, discussing the health hazards of asbestos, were admissible, but only for the purpose of impeaching the testimony of Dr. Castleman, plaintiff’s state-of-the-art expert. The court denied OCF’s request that the magazines be admitted as substantive evidence and denied admission of plaintiff’s discovery deposition as substantive evidence.

In addition, OCF’s proposed jury instructions on assumption of risk and proximate cause were denied, as well as its instructions on comparable fault and the definition of “unreasonably dangerous.” The jury returned a verdict for plaintiff in the amount of $283,000.

OCF moved unsuccessfully for judgment notwithstanding the verdict or, in the alternative, for a new trial. OCF’s motion for setoff was, however, granted. The final judgment amount was $225,000, plus costs and expenses of $1,923.21.

OCF first contends that the circuit court erred in denying its motion for judgment notwithstanding the verdict since plaintiff, by neglecting to present evidence that decedent would have adhered to warnings if provided, failed to prove that asbestos proximately caused decedent’s injuries.

It is well established that a judgment notwithstanding the verdict can only be granted where all the evidence, when viewed in a light most favorable to the nonmoving party, so overwhelmingly favors the moving party that no contrary verdict could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.

To recover under a strict liability theory, a plaintiff must establish that the injury proximately resulted from an unreasonably dangerous condition of the product which existed at the time it left the manufacturer’s control. (Soto v. E.W. Bliss Division of Gulf & Western Manufacturing Co. (1983), 116 Ill. App. 3d 880, 452 N.E.2d 572.) Plaintiff alleges that OCF’s products were unreasonably dangerous because OCF failed to warn of dangers associated with their use. The failure to warn of a product’s dangerous propensities may serve as a basis for holding the manufacturer strictly liable in tort. (Hammond v. North American Asbestos Corp. (1983), 97 Ill. 2d 195, 454 N.E.2d 210.) Moreover, as the supreme court noted in Hammond, a jury may properly conclude that asbestos is an unreasonably dangerous product, and accordingly, a manufacturer of asbestos products may be held strictly liable for failing to provide adequate warnings to consumers of its asbestos products. (Hammond, 97 Ill. 2d at 206.) OCF maintains that the question presented in this appeal, which was not discussed in Hammond, is whether the plaintiff may succeed on the strict liability claim although she failed to prove that had an appropriate warning label been placed on OCF’s asbestos products, decedent would have altered his conduct.

OCF maintains that its asbestos product was not the proximate cause of decedent’s injuries because decedent had a practice of ignoring the warning labels on cigarette packages and decedent had knowledge and appreciation of the dangers of asbestos. In support of its contention, OCF relies on Brossard v. Houdaille Industries, Inc. (1989), 183 Ill. App. 3d 739, 539 N.E.2d 360, in which the plaintiff sued the manufacturer of a “gate guard safety system” alleging that the manufacturer’s failure to furnish instructions for the system rendered the product defective. The court noted:

“Liability cannot be predicated upon surmise or conjecture as to the cause of a plaintiff’s injuries. Instead, proximate cause can only be established where there is a reasonable certainty that the defendant’s acts caused the injuries.” (183 Ill. App. 3d at 744.)

Consequently, the court found that there was no evidence to support plaintiff’s argument that, had defendant supplied an instruction manual, either plaintiff or his employer would have acted differently or that plaintiff’s injury would have been avoided. The court concluded that the lack of warning was not the proximate cause of plaintiff’s injuries since the evidence showed that plaintiff’s employer consciously and purposefully chose to operate the press brake without utilizing other safety devices. Brossard, 183 Ill. App. 3d at 744.

In Mason v. Caterpillar Tractor Co. (1985), 139 Ill. App. 3d 511, 487 N.E.2d 1043, also relied upon by OCF, the plaintiff filed a products liability action against Caterpillar Tractor Company, claiming that decedent was killed when, while using a sledgehammer to repair a Caterpillar tractor, a piece of metal came loose from the tractor’s steel track shoe and struck him in the chest. The court found that, as a matter of law, the defendant had no duty to warn plaintiff since there was no causal connection between the alleged lack of warning and decedent’s chest wound. Because the alleged danger was open and obvious and generally appreciated, the court held that nothing would be gained by a warning and, as such, none was required under the circumstances. Decedent fully appreciated the danger in the activity which ultimately caused his death and, in fact, it was the general practice of decedent’s employer to avoid the activity which led to decedent’s death. As such, the court stated that any warning to avoid this dangerous activity would have been superfluous. Mason, 139 Ill. App. 3d at 519.

In the instant case, there is no overwhelming evidence that decedent consciously and purposefully chose to be exposed to the health hazards of asbestos or that the risk of asbestos was open and obvious. Rather, this case is more similar to Raney v. Owens-Illinois, Inc. (2d Cir. 1990), 897 F.2d 94, a case involving the death of an asbestos worker, which addressed the issue of whether there was sufficient evidence for the jury to conclude that the absence of warnings concerning the hazards of asbestos was the proximate cause of the decedent’s injuries. The defendant in Raney contended that plaintiff failed to present any evidence from which a jury could have reasonably concluded that plaintiff would have heeded warnings and altered his conduct so as to avoid exposure to asbestos and that the only evidence on the issue of heeded warnings was the evidence that plaintiff continued smoking despite the appearance of warnings of the health hazards of smoking. In rejecting defendant’s argument, the court stated:

“Evidence that [decedent], who had begun smoking and perhaps had become addicted [to smoking] years before cigarette health warnings appeared, did not stop smoking after such warning *** is, at most, a circumstance for the trier [of fact] to consider in deciding whether an asbestos warning would have been heeded. Such evidence does not preclude a finding in plaintiff’s favor. *** [A] jury could reasonably conclude that [plaintiff] would have adjusted his conduct more significantly to asbestos warnings than to cigarette warnings or that his union would have precipitated action to protect his welfare.” Raney, 897 F.2d at 96.

The decision in Raney is soundly reasoned, since to hold otherwise would preclude any individual who smoked cigarettes and worked with asbestos products from recovery for injuries resulting from exposure to asbestos products on a failure to warn theory. It should be noted that the present case does present a slightly different situation than that presented in Raney. In Raney, the defendant alleged that its asbestos products were not the proximate cause of decedent’s injuries merely because the decedent smoked cigarettes. In the instant case, OCF contends that its asbestos products were not the proximate cause of decedent’s injuries because decedent smoked cigarettes and because decedent received information regarding the dangers of asbestos from the union publication Asbestos Worker. In addition, Mrs. Skonberg testified that she had discussed with her husband the harmful effects of asbestos. Significantly, however, there was never any discussion between plaintiff and the decedent about the link between asbestos and cancer. Furthermore, there was never any testimony from the decedent and no indication as to how he would have reacted had there been appropriate warnings placed on the asbestos products manufactured and produced by OCF.

Moreover, the evidence established that decedent was exposed to asbestos products manufactured by OCF from the period of 1960 to 1964. Furthermore, it is undisputed that OCF became aware of the dangers associated with asbestos as early as 1940. Also, there is no dispute that despite OCF’s knowledge of the dangers associated with asbestos, it failed during the relevant period to place upon its asbestos products any warning labels which would have informed the decedent of the hazard he faced.

Accordingly, applying the Pedrick standard, we find that the trial court correctly denied defendant’s motion for judgment notwithstanding the verdict. Viewing the evidence in the light most favorable to plaintiff, the evidence does not so overwhelmingly favor defendant that no contrary verdict could stand.

Defendant next contends that if its motion for judgment notwithstanding the verdict is denied, it is entitled to a new trial. Defendant sets forth the following arguments in support of its contention that it was denied a new trial.

OCF requested plaintiff to produce the “proof of claim” (POC) form filed by plaintiff with the Johns-Manville Personal Injury Trust (Manville) a successor to the Johns-Manville Corporation, delineating decedent’s exposure to asbestos containing products manufactured by Johns-Manville Corporation. Plaintiff’s attorney refused to produce the POC form, contending that it is protected by the attorney-client privilege, the work-product doctrine and by the privilege accorded documents generated during the course of settlement negotiations.

Initially, it should be noted that plaintiff failed to respond to OCF’s argument that no attorney-client privilege adhered to the POC form. Plaintiff has therefore waived this argument.

Plaintiff also first maintains that evidence, in order to be discoverable, must be relevant and that the trial court properly ruled that the POC form is irrelevant and therefore inadmissible. The right to discovery is limited to disclosure regarding matters relevant to the subject matter involved in the pending action. (United Nuclear Corp. v. Energy Conversion Devices, Inc. (1982), 110 Ill. App. 3d 88, 441 N.E.2d 1163.) However, great latitude is allowed in the scope of discovery, and discovery thus includes not only what is admissible at trial, but also that which may lead to the discovery of admissible evidence. Bass v. Cincinnati, Inc. (1989), 180 Ill. App. 3d 1076, 536 N.E.2d 831.

Plaintiff contends that this court has already determined that evidence of exposure to other asbestos products is irrelevant. In Lipke v. Celotex Corp. (1987), 153 Ill. App. 3d 498, 501, 505 N.E.2d 1213, the court held:

“[T]he fact that plaintiff used a variety of asbestos products does not relieve defendant of liability for his injuries. Evidence of his exposure is not relevant.”

Plaintiff contends that Lipke stands for the proposition that a plaintiff’s exposure to other asbestos products is irrelevant and as such is not discoverable. What the case actually espouses is that evidence of a plaintiff’s exposure to other asbestos products is irrelevant and therefore inadmissible. LipJce does not discuss the discoverability of a form containing evidence of other exposures.

The trial court in the instant case also confused admissibility and discoverability. After an in camera review of the POC form, the trial court stated:

“I can’t see a great deal of value to you, unless it were to be admissible; and even then I don’t think it’s what I would classify as terrific.
I mean, it wouldn’t be bad, and I’m sure it would be of some help, but it's not, again, under any great shape, [sic] if it were admissible, and I’m convinced it’s not admissible.”

Thus, the trial court denied the discoverability of the POC form on the basis that the form was inadmissible. Although the trial court admitted that the POC form may be of “some help,” it still withheld the entire form from discovery. This ruling was therefore incorrect.

Plaintiff next maintains that the POC form is inadmissible since it was generated during the course of settlement negotiations with Manville. Evidence of offers of settlement or compromise are ordinarily inadmissible (Niehuss v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1986), 143 Ill. App. 3d 444, 492 N.E.2d 1356), but admissions of fact are not excluded simply because they are made in the course of negotiations. (Khatib v. McDonald (1980), 87 Ill. App. 3d 1087, 410 N.E.2d 266.) An oral or written statement “ ‘made by a party or in his behalf which is inconsistent with his present position may be introduced in evidence against him.’ ” (Lipschultz v. So-Jess Management Corp. (1967), 89 Ill. App. 2d 192, 200, 232 N.E.2d 485, quoting Nelson v. Union Wire Rope Co. (1964), 31 Ill. 2d 69, 115, 199 N.E.2d 769.) Furthermore, admissions of other facts elicited incidentally during settlement discussions may be introduced as evidence. In re Marriage of Passiales (1986), 144 Ill. App. 3d 629, 429 N.E.2d 541.

Plaintiff maintains that while an exception to the general rule of admissibility exists when the offer of settlement contains independent and relevant admissions of fact, such admissions have to be adverse to the interest that plaintiff presently asserts. Thus plaintiff maintains that the facts contained in the POC form are neither disputed nor adverse to OCF’s interest and therefore cannot be admissible. While plaintiff may be correct in concluding that the form is inadmissible, plaintiff does not address whether the POC form is discoverable. Therefore, OCF should have been given the opportunity to discover whether the POC form did indeed contain facts either disputed or adverse to OCF’s interest or incidental to the settlement discussions.

Plaintiff next contends that the work-product doctrine bars the POC form from discovery. Supreme Court Rule 201(b)(2) (107 Ill. 2d R. 201(bX2)) provides that material prepared by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose theories, mental impressions, or litigation plans of the party’s attorney. The purpose of this exemption is to prevent complete invasion of files of counsel, and it is clear it would protect notes and memoranda actually prepared by counsel for use in trial. (Kilpatrick v. First Church of the Nazarene (1989), 182 Ill. App. 3d 461, 538 N.E.2d 136.) When the disputed material merely reports objective facts or data, untainted by counsel’s mental impressions, theories or trial strategy, the doctrine does not apply. See Consolidation Coal Co. v. Bucyrus-Erie Co. (1982), 89 Ill. 2d 103, 111, 432 N.E.2d 250 (metallurgical report containing objective information consisting of mathematical computations, formulae, tables, drawings, photographs, industry specifications, data and handwritten notes was not attorney’s work product).

In the instant case, the POC form contains objective facts concerning decedent’s work history and exposure to asbestos products. (See People v. Treece (1987), 159 Ill. App. 3d 397, 413, 511 N.E.2d 1361 (attorney’s handwritten notes which only contained information related to mileage, speed and time were “[flar from reflecting the mental processes of the attorney in preparation of defendant’s case, [since] the notes are largely recordation of a witness’ statements to counsel pertaining to ‘time tests’ being taken”).) The POC form does not contain counsel’s mental processes, impressions or strategies for trial, and therefore, the document falls outside the ambit of the work product rule.

Although the trial court erred in denying discovery of the POC form, the information contained in the form would have given OCF no more information than it had already received. There is no indication that had OCF been given access to the POC form, this information would have changed the outcome of the trial below. The POC form merely states the fact that decedent was exposed to asbestos products other than those manufactured by OCF and the years in which he was exposed to such products. Plaintiff has already conceded the fact that decedent was exposed to asbestos products other than those manufactured by OCF. Where it appears that an error did not affect the outcome of the trial below, the judgment will not be disturbed. (J.L. Simmons Co. ex rel. Hartford Insurance Group v. Firestone Tire & Rubber Co. (1985), 108 Ill. 2d 106, 483 N.E.2d 273.) Thus any error made in the lower court with respect to the evidentiary ruling on the POC form would merely constitute harmless error, as the information contained in the POC form was already within the knowledge of the defendant’s counsel.

OCF further contends that the circuit court erred when it refused to tender to the jury OCF’s proposed instructions concerning assumption of risk. Assumption of the risk is an affirmative defense that operates to reduce plaintiff’s recovery by that amount which the jury finds him to have been at fault. (Coney v. J.L.G. Industries, Inc. (1983), 97 Ill. 2d 104, 454 N.E.2d 197.) A plaintiff’s unobservant, unattentive, ignorant or awkward failure to either discover or guard against a defect cannot be considered a damage-reducing factor. (Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418, 261 N.E.2d 395.) The assumption of risk test is subjective in the sense that evidence of plaintiff’s knowledge, understanding and appreciation of the danger must be assessed, rather than that of a reasonably prudent person. (King v. American Food Equipment Co. (1987), 160 Ill. App. 3d 898, 513 N.E.2d 958.) However, the trier of fact is not compelled by the subjective nature of this test to accept a plaintiff’s testimony that he was unaware of the danger, if, in light of all the evidence, he could not have been unaware of the hazard. The factors of the user’s age, experience, knowledge and understanding, as well as the obviousness of the defect and the dangers it poses, are relevant to the trier of fact’s determination of the issues. Williams, 45 Ill. 2d at 430.

Applying these principles, the trial court determined that in the instant case OCF’s evidence “comes very close to the threshold” but “that the evidence of [decedent’s] conduct at the time would [not] show anything more than being *** unobservant, inattentive, ignorant or awkward to guard against.” OCF contends that the trial court erred in refusing to tender an assumption of the risk instruction since the evidence shows that decedent assumed the risk of exposure to its asbestos products by continuing to be exposed to the products even after reading the Asbestos Worker magazine, pointing out to his wife specific articles in the magazines addressing the health hazards associated with asbestos, and receiving information from his union regarding the health hazards of asbestos exposure.

Although to present an assumption of the risk issue to the jury defendant need only show some evidence that plaintiff assumed the risk (Erickson v. Muskin Corp. (1989), 180 Ill. App. 3d 117, 535 N.E.2d 475), OCF has failed to satisfy this burden. There are two flaws in OCF’s argument. First, there is simply no indication that decedent had knowledge of the dangers of asbestos exposure during the relevant time period, the early 1960’s. Rather, there is testimony that decedent received information from the Asbestos Worker magazine and from his union in either “the 1960’s” or in the “late 1960’s.” This testimony is clearly not sufficient to allow a jury to conclude that decedent did in fact have knowledge of the hazards of asbestos in the early 1960’s.

Another deficiency in OCF’s argument is the fact that it seeks to hold the decedent responsible for failing to recognize and react to the articles in the Asbestos Worker magazine, while OCF has likewise failed to recognize and react to the articles. OCF is essentially arguing that decedent should have been so influenced by the articles regarding the health hazards of exposure to asbestos that he should have given up his livelihood as an insulator. Yet OCF was not so influenced by the articles as to put warnings on its asbestos products. Had OCF placed a warning on its asbestos products and decedent still chose to be exposed to the products, the court could safely conclude that decedent assumed the risk and OCF would therefore be entitled to an assumption of the risk instruction. In the case at bar, since OCF chose to ignore the articles rather than provide warnings, the trial court properly denied OCF’s assumption of the risk instructions.

OCF further contends that it is entitled to a new trial because the circuit court erred when it failed to submit to the jury OCF’s comparative fault instruction. This non-Illinois Pattern Jury Instruction (IPI) informed the jury that it could reduce the plaintiff’s damages if it found that decedent assumed the risk of his injury or that any other conduct on the part of the decedent contributed to his injury. The instruction also provided that the jury was entitled to consider the conduct of manufacturers of other asbestos products to which the decedent was exposed in reducing damages.

A party has a right to have the jury informed about the issues presented, the applicable legal principles, and the facts which must be proved to support a verdict. (Korpalski v. Lyman (1983), 114 Ill. App. 3d 563, 449 N.E.2d 211.) IPI instructions should be given unless they inaccurately state the law. (Erickson v. Muskin Corp. (1989), 180 Ill. App. 3d 117, 180 N.E.2d 475.) Only when the IPI does not contain a proper instruction on the subject may a non-IPI instruction be given. Fravel v. Morenz (1986), 151 Ill. App. 3d 42, 502 N.E.2d 480.

It logically follows that a non-IPI instruction misstating the law is not to be tendered to the jury. In the instant case, the trial court properly excluded OCF’s non-IPI comparative fault instruction since it misstates Illinois law. The inaccurate portion of the comparative fault instruction is that which allows the jury to consider the conduct of manufacturers of other asbestos products to which the decedent was exposed in reducing damages. The fact that a plaintiff used a variety of asbestos products does not relieve defendant of liability for his injuries. (Lipke v. Celotex Corp. (1987), 153 Ill. App. 3d 498, 505 N.E.2d 1213.) Although other portions of the comparative fault instruction may be correct, this inaccurate statement of the law was sufficient to allow the trial court to reject the entire instruction.

OCF next contends that the court erred when it barred OCF’s counsel from reading Mrs. Skonberg’s deposition testimony to the jury and determined that because Mrs. Skonberg was available as a witness, OCF could use the deposition only for impeachment purposes. Discovery depositions may be used to impeach the testimony of the deponent as a witness, as a party admission, and for any purpose for which an affidavit may be used. (Security Savings & Loan Association v. Commissioner of Savings & Loan Associations (1979), 77 Ill. App. 3d 606, 396 N.E.2d 320.) Neither the availability of the witness to testify nor the presence of the witness at court has any bearing on the admissibility of a discovery deposition as evidence. Behrstock v. Ace Hose & Rubber Co. (1986), 147 Ill. App. 3d 76, 496 N.E.2d 1024.

A review of the record indicates that OCF’s request was not denied in a blanket fashion. Instead, the trial court ruled that two of the proposed excerpts of the deposition could be read to the jury over plaintiff’s objection. Despite the ruling, OCF elected not to read these portions to the jury. Moreover, the trial court barred OCF from reading certain portions of the discovery deposition not only because plaintiff was available to testify, but also because some of the statements OCF sought to read either were not admissions or had already been thoroughly explored during direct or cross-examination when the plaintiff testified in her own case. With respect to the remaining excluded excerpts, had these portions indeed been inconsistent with Mrs. Skonberg’s trial testimony, OCF had the opportunity to caU these excerpts to the attention of the jury through the impeachment process. Accordingly, the trial court’s ruling on this matter was not an abuse of its discretion.

OCF finally contends that the circuit court incorrectly barred evidence at trial of health-related articles or similar information that may have been available to decedent during his career as an insulator. Specifically, the court precluded introduction of issues of the Asbestos Worker magazine as substantive evidence that OCF’s products were not unreasonably dangerous. OCF maintains that the Asbestos Worker magazines offered were admissible as substantive evidence of the knowledge of the community of insulators of which decedent was a member.

Strict liability for an unreasonably dangerous product applies only when the product is dangerous to the extent beyond that which would be contemplated by the ordinary person with the ordinary knowledge common to the community as to its characteristics. (Hunt v. Blasius (1978), 74 Ill. 2d 203, 384 N.E.2d 368.) The information contained in the magazines, however, has no bearing on the issue of what the community of insulators knew and when they knew it. There is simply no indication that the Asbestos Worker magazine was widely circulated and read by many asbestos workers. On the other hand, there is testimony from John McDonnell, decedent’s co-worker, that although he received the Asbestos Worker magazine, he read only the wage information and the death notices. Consequently, the evidence is insufficient to conclude that simply because the decedent and McDonnell received the Asbestos Worker magazine, the hazards of asbestos were contemplated by the community of asbestos workers.

OCF also sought to introduce Asbestos Worker magazine as proof that decedent assumed the risk of exposure to asbestos products. OCF maintains that articles printed in the publication appeared in the same time period that decedent worked with OCF products and thereby apprised decedent of the dangers associated with asbestos.

In support of this contention, OCF relies on Williams v. Brown Manufacturing Company (1970), 45 Ill. 2d 418, 261 N.E.2d 305, and Erickson v. Muskin Corporation (1989), 180 Ill. App. 3d 117, 535 N.E.2d 475. However, these cases are distinguishable since they permitted a jury to consider circumstantial evidence concerning assumption of the risk only after the user of the product testified that he was unaware of the hazard. In the instant case, there was no statement by the user of the product because decedent died without ever having testified. Furthermore, the testimony of Mrs. Skonberg and McDonnell was insufficient to establish exactly what the decedent read or understood during the time period before or during decedent’s exposure to OCF’s asbestos products. Therefore, the trial court properly excluded the Asbestos Worker magazine as evidence that the product was unreasonably dangerous or that decedent assumed the risk.

The judgment of the circuit court is affirmed.

Affirmed.

LORENZ, P.J., and MURRAY, J., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WARREN THOMAS, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—0770
    Opinion filed May 13, 1991.
    Rehearing denied July 16, 1991.

      Barbara Kamm, of State Appellate Defender’s Office, of Chicago, for appellant.

      John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Walter P. Hehner, and Kevin Hughes, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant Warren Thomas was charged with aggravated criminal sexual assault, kidnapping, criminal sexual assault, aggravated kidnapping, armed robbery and aggravated unlawful restraint, and he was tried with his co-defendants Eric Thomas and Edward Bond. After the jury trial, Thomas was convicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(a)(1)) and criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13(aXl)) and sentenced to 10 years for aggravated criminal sexual assault. He appeals both the convictions and the sentence.

During the State’s case in chief, the complainant testified: On December 8, 1986, at approximately 2 a.m., she was walking outside when a man grabbed her. The man was later identified as Eric Thomas. She struggled with Eric Thomas. Then, a maroon car drove by and she was forced into the maroon car’s back seat. Eric Thomas also sat in the back seat. A driver and another passenger sat in the front seat. The front seat passenger was later identified as Edward Bond. Edward Bond hit her in the eye, and then she was blindfolded. She saw Edward Bond because he hit her in the eye and she saw the man who grabbed her from the street. The car was traveling for about twenty minutes.

When the car stopped at an apartment building, the blindfold was removed but she was told to keep her eyes shut. The complainant was taken to a second-floor apartment. As she approached the apartment, she heard voices in the apartment. Once inside the apartment, she was ordered to take off her clothes. She thought there were at least five men in the apartment. In the apartment, she was blindfolded and her wrists were tied. Additionally, a rope was tied around her neck and ankles and she was tied to a bed. She was forced to have oral, vaginal and anal sex numerous times with different men.

After about an hour and a half of forced sexual acts, all of the men left except Edward Bond. Edward Bond then untied her, took off the blindfold and told her to put on a top because he wanted to take her next door. He then told the complainant that he “would blow her head off” if she did not do as he said. Edward Bond grabbed his gun, loaded it and pointed the barrel at her head. He walked her across the hallway, knocked on an apartment door and a man answered. The man who answered the door was later identified as the defendant. Edward Bond told the defendant “look what I brought you.”

After the complainant was forced into the defendant’s apartment, Edward Bond forced the complainant to engage in oral sex with the defendant while the defendant was sitting on his couch. During oral sex, the defendant ejaculated and the complainant spit it out onto the floor. Then, the complainant was forced to engage in vaginal sex with the defendant. Edward Bond was sitting on a chair watching and later forced the complainant to have oral sex with him. Edward Bond, again, threatened to “blow her head off.”

While in the defendant’s apartment, Edward Bond forced the complainant to phone her mother and tell her that she would not be home for a couple of days. When the complainant called home, her brother answered. Then, Edward Bond told the complainant that he wanted her to pose for the defendant and Eric Bond.

Subsequently, Edward Bond took the complainant back to his apartment, forced her to engage in anal sex again and tied her to the bed by her neck, wrists and ankles. After a few hours passed, Edward Bond told the complainant that he was going to the store to buy her a red bikini so he could take some pictures of her.

After Edward Bond left the apartment, the complainant tried to untie herself. When the complainant successfully untied herself, she grabbed her jeans and her jacket and ran out of the apartment naked. She flagged down a school bus. There were a man and woman aboard the bus. The woman was later identified as Diane White. The complainant told the man and Diane White what happened and asked them to call the police.

She told the police what happened and described both apartments in detail. The complainant then took the police to the building she had escaped from and led them to the floor where the apartments were located. Then, the complainant left the apartment building and got into a police car. When she was in the car, she saw the defendant walking into the apartment building. Thereafter, the defendant was arrested.

On cross-examination, the complainant denied telling Diane White that she had sex with 10 or 12 people and the complainant did not recall telling Diane White that she never saw the people who raped her or that she was taken from one apartment downstairs to another apartment.

Chicago police officer James R. Lilly testified: On December 8, 1986, he was working with his partner, Officer Stephanie Kimbrough. At approximately 2:35 p.m., he received a call about a rape victim. When he arrived at the scene, the complainant stated that she had been raped. The officer interviewed the complainant and then she took the officers to the apartment where she was held and identified the defendant’s apartment as the second apartment. Later, when they all were in the police car, the complainant recognized the defendant as he walked into the apartment building.

Chicago police officer Walter Tamberlin’s testimony was substantially similar to Officer Lilly’s testimony. Officer Tamberlin testified that the complainant told the police that weapons were located in the first apartment’s closet. Officer Tamberlin found three shotguns in the closet. He also found several photographs of men and women in various sex acts. The complainant was not in any of the pictures, but she identified the man in the photos as a co-defendant. While Officer Tamberlin attempted to set up surveillance of the building, the complainant, who was in a police car, identified the defendant. Subsequently, Officer Tamberlin arrested the defendant. Later that day, Officer Tamberlin entered defendant’s apartment and its appearance resembled the complainant’s description. Defendant’s apartment had blue walls, a couch and a bed separated by a string of beads.

On cross-examination, Officer Tamberlin stated that he did not write down the complainant’s description of the apartment. He took mental notes of the description and then wrote in his report that the apartment was as the complainant described. Officer Fortuna actually wrote the report, but Officer Tamberlin read it and signed it. The complainant told Officer Tamberlin that the defendant had oral and vaginal sex with her but never told him the defendant had anal sex with her. Officer Tamberlin did not recognize a supplemental police report, did not know if it was his signature on the report and stated that the report would be wrong if it related that the complainant was called back from being en route to the hospital to identify the defendant.

The defendant testified on his own behalf: On December 8, 1986, he finished work about 2:30 a.m., went to a bar until about 3 a.m. and arrived home around 3:30 a.m. He noticed Eric Bond standing alone outside the apartment building. The defendant went to his apartment and began cleaning it. Then, Eric Bond came to his door and asked for a cup of coffee. After the defendant gave Eric Bond some coffee, the defendant went to sleep. The defendant woke at approximately noon and went to pay his phone bill. When he returned, he saw police cars near his apartment building. Later, he was arrested because a woman said she had been raped in his apartment. The defendant denied having any sort of intercourse with the complainant in his apartment. The defendant showed the jury his chest and indicated that he had a large incision scar from his chest to his groin area.

On cross-examination, the following colloquy was exchanged between the defendant and the assistant State’s Attorney:

“Q. Did you use the name James Stanford to the police, ever use that name?
A. No.
Q. Larry Bonns?
A. No.
DEFENSE ATTORNEY: Judge, I am going to —
Q. Tommy Taylor?
DEFENSE ATTORNEY: Judge, I am going to object to this line of questioning unless there is some foundation shown to this, any relevance shown to this.
THE COURT: All right, objection sustained.”

Additionally, Diane White testified that she saw the complainant running down the street. She called the police. The complainant told her that she had been raped by 10 or 11 people. The complainant also told her that she was taken downstairs and raped by someone else in another apartment.

It was stipulated that if Christine Brown testified, she would state that she is a criminalist and microanalyst working for the Chicago police department. She analyzed the smears and swabs taken from the complainant and determined that the swabs and smears were negative for spermatozoa and semen.

It was also stipulated that if Officer Fortuna testified he would say that he wrote a report on December 18, 1986, which stated that the complainant told him she was forced to have oral copulation and anal intercourse with the defendant. He wrote in the report that the reporting officer cleared the area of marked squad cars and set up surveillance of the apartment while the complainant was en route to the hospital. A short time later, the defendant approached the building and was stopped for questioning by the reporting officer. The reporting officer called the complainant back and the complainant identified the defendant.

During a jury instruction conference, defense counsel objected to the last line of the definition of sexual penetration which stated that evidence of emission of semen is not required to be proved.

The trial court instructed the jury to disregard answers to any questions where an objection was sustained.

The jury found the defendant guilty of both aggravated criminal sexual assault and criminal sexual assault. The trial court denied defendant’s motion for a new trial and sentenced the defendant to 10 years for aggravated criminal sexual assault. The defendant’s conviction for criminal sexual assault was vacated because it merged with the aggravated criminal sexual assault.

We are not persuaded by defendant’s argument that he was not proven guilty of aggravated criminal sexual assault beyond a reasonable doubt because the complainant’s testimony was “not clear and convincing or sufficiently corroborated.” When presented with a challenge to the sufficiency of the evidence, a court of review will not set aside a criminal conviction unless the evidence is so unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Byrd (1990), 206 Ill. App. 3d 996, 1006, 565 N.E.2d 176, appeal denied (1991), 137 Ill. 2d 667; People v. Westfield (1990), 207 Ill. App. 3d 772, 777, 566 N.E.2d 392.) “It is the function of the jury to assess the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn therefrom.” (People v. Brisbon (1985), 106 Ill. 2d 342, 360, 478 N.E.2d 402, cert. denied (1985), 474 U.S. 908, 88 L. Ed. 2d 241, 106 S. Ct. 276.) A careful review of the record in the light most favorable to the prosecution convinces us that a rational fact finder could have found the defendant guilty beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 453.) The complainant consistently described that a man in the second apartment forced her to have oral and vaginal sex. She identified the defendant at the scene of the crime and at trial as the man in the second apartment. Additionally, the complainant’s testimony was corroborated by Officer Tamberlin’s testimony that the description the complainant gave of the defendant’s apartment matched the defendant’s apartment and that he found a loaded gun and ropes in the first apartment.

Additionally, defendant argues that the complainant’s testimony was inconsistent. He specifically refers to Diane White’s testimony that the complainant said “she was raped by ten or eleven men, that she could not see any of the attackers’ faces and that she was taken downstairs to the second apartment.” We find that these contradictions or inconsistencies with respect to the complainant’s testimony do not, of themselves, create a reasonable doubt. (See People v. Brisbon (1985), 106 Ill. 2d 342, 360, 478 N.E.2d 402, cert. denied (1985), 474 U.S. 908, 88 L. Ed. 2d 241, 106 S. Ct. 276.) “Mere discrepancies only affect the credibility of the witness. It is for the trier of fact to weigh any discrepancies, and, if minor, the victim’s testimony may still be considered clear and convincing.” (People v. Harris (1989), 187 Ill. App. 3d 832, 838-39, 543 N.E.2d 859.) We hold that the jury was entitled to find the complainant’s testimony clear and convincing, and that the minor discrepancies did not constitute reasonable doubt. Her testimony, when examined in its entirety, could reasonably have been found by the jury to clearly and convincingly establish aggravated criminal sexual assault.

Defendant also argues that he was prejudiced and deprived of a fair trial when the People elicited testimony regarding lewd photographs found in Edward Bond’s apartment. However, the defendant has not preserved this argument for appeal because he did not allege this claimed error in his post-trial motion. His post-trial motion only alleges, inter alia, “[t]hat the court erroneously admitted into evidence *** photographs of Eric Bond’s apartment,” rather than the post-trial motion specifically alleging that Officer Tamberlin’s testimony with respect to the photographs was prejudicial and deprived the defendant of a fair trial. Moreover, the defense attorney concedes that “this error was not completely preserved.”

Furthermore, this case does not fall within the plain error exception because the evidence was not closely balanced after considering the complainant’s testimony and because the claimed error “was not of such a magnitude” that the defendant was denied a fair trial. Testimony with respect to the “lewd” pictures came in during Officer Tamberlin’s testimony. Officer Tamberlin described his investigation and stated that the complainant was able to initially identify the co-defendant, Edward Bond, from the pictures. The defendant was tried in the same case as co-defendant Edward Bond. The defendant was not prejudiced by these pictures. He was not in the pictures, the pictures were found in co-defendant Edward Bond’s apartment, the jury did not see the pictures and the defendant testified that he had never seen the pictures and had never been asked about them.

As authority for his argument that testimony regarding the “lewd” photographs was prejudicial and denied him a fair trial, defendant cites People v. Wade (1977), 51 Ill. App. 3d 721, 366 N.E.2d 528, People v. Liapis (1972), 3 Ill. App. 3d 864, 279 N.E.2d 368, and People v. Miller (1968), 40 Ill. 2d 154, 238 N.E.2d 407, cert. denied (1968), 393 U.S. 961, 21 L. Ed. 2d 375, 89 S. Ct. 401. In those cases, the court determined that the admission of evidence was reversible error when such evidence was not connected to the crime and, thus, was not relevant. The admission of testimony with respect to the “lewd” photographs was not reversible error because the testimony was relevant with respect to the officer’s investigation and, as stated, did not prejudice the defendant.

Next, defendant argues that he was denied a fair trial when the assistant State’s Attorney questioned him about his aliases in order to suggest that he was involved in prior criminal activity. Defendant has also failed to preserve this argument for appeal because he did not allege it in his post-trial motion. Even if this court were to review the merits of the defendant’s argument, he was not denied a fair trial because the court sustained the defense attorney’s objection and directed the jury to disregard the questions.

Additionally, the defendant argues that the trial court erred in giving Illinois Pattern Jury Instructions, Criminal, No. 11.65 (2d ed. Supp. 1987), contending that the statement “evidence of the emission of semen was not required to prove sexual penetration” should not have been included, because it misled the jury and “de-emphasized the significance that semen was not found.” Defendant has not preserved this argument for review because it was not specifically alleged in his post-trial motion. A general objection to instructions, without specification, does not preserve the claimed error. People v. Enoch (1988), 122 Ill. 2d 176, 187, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.

Even if it were considered on its merits, the trial court properly instructed the jury because a finding of semen is not an element of aggravated sexual assault (People v. Harris (1989), 187 Ill. App. 3d 832, 839-40, 543 N.E.2d 859). An essential element of aggravated criminal sexual assault is “sexual penetration.” (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(b).) The Criminal Code of 1961 defines “sexual penetration” as follows:

“ ‘Sexual penetration’ means any contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio or anal penetration. Evidence of emission of semen is not required to prove sexual penetration.” (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 12(f).)

Additionally, whether sexual penetration occurred, whether semen was absent and whether the complainant’s testimony was impeached were questions of fact for the trier of fact. However, the complainant never testified that the defendant ejaculated in her vagina. In fact, she testified that he only ejaculated in her mouth and that she spit it out. The trial court properly instructed the jury.

Defendant then argues that he was denied a fair trial when, in closing arguments, the assistant State’s Attorney commented: (1) that the defendant did not call his employer or individuals who accompanied him to the bar as witnesses; and (2) that the defendant was the driver of the maroon car. Additionally, the defendant contends that the prosecutor’s comments “went beyond proper comments on the evils of crime” and that “the prosecutor misstated the law regarding outcry evidence.” Again, this issue is waived because the post-trial motion did not set forth the specific remarks. See People v. Harris (1989), 187 Ill. App. 3d 832, 841, 543 N.E.2d 859; People v. Thomas (1983), 116 Ill. App. 3d 216, 219-20, 452 N.E.2d 77.

Defendant’s post-trial motion only generally alleges that “the prosecutor made prejudicial, inflammatory and erroneous statements in closing argument designed to arouse the prejudice and passions of the jury and to thereby prejudice defendant’s right to a fair trial,” but only specifically alleges that “the prosecutor made a prejudicial statement in closing argument that the semen test, to which the prosecutor stipulated, was an unreliable test where there was not evidence in the record as to the reliability.” Thus, comments (1), (2) and defendant’s contention that the assistant State’s Attorney’s comments “went beyond proper comments on the evils of crime” were not properly preserved for review.

Defendant’s contention that the prosecutor misstated the law is waived because the defense attorney did not object at trial and did not specifically allege the claimed error in defendant’s post-trial motion. Furthermore, we will not invoke the doctrine of plain error with respect to the claimed improper comments, because the evidence was not closely balanced and because the claimed errors were not of such magnitude that the defendant was denied a fair trial for the reasons stated above. People v. Lucas (1981), 88 Ill. 2d 245, 251, 430 N.E.2d 1091.

Defendant further argues that he was denied effective assistance of counsel, contending that the defense attorney failed to lay a proper foundation for Diane White’s testimony that the complainant said that she was abducted by a white man and that the defense attorney failed to object to Officer Tamberlin’s testimony regarding the “lewd” photos. We disagree. A claim of ineffective assistance of counsel will be sustained only if counsel has failed to perform in a reasonably effective manner and there is a reasonable probability that, but for this substandard performance, the outcome of the proceeding would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Defense counsel’s performance must be viewed in light of his total performance and not just on the basis of isolated acts. (People v. Ayala (1986), 142 Ill. App. 3d 93, 99-100, 491 N.E.2d 154.) Upon review of the record, we find that the defense attorney represented the defendant effectively. He represented his client zealously. He objected to evidence and argued persuasively on the defendant’s behalf. We do not believe the trial’s outcome would have been different if defense counsel had laid a proper foundation. Additionally, the defense counsel’s failure to object to evidence does not in and of itself establish defense counsel’s incompetence. People v. Murphy (1978), 72 Ill. 2d 421, 438, 381 N.E.2d 677.

Finally, defendant argues that the trial court abused its discretion by sentencing him to 10 year’s imprisonment, contending that his co-defendants who pled guilty to aggravated criminal sexual assault, aggravated kidnapping and armed robbery also received concurrent 10-year sentences. Specifically, the defendant argues that his sentence should be less than his co-defendants because he was less culpable. We disagree. The trial court acted within the scope of its discretion because the sentence was within the guidelines prescribed by law. The defendant was convicted of a Class X felony and under the law he could have been sentenced to not less than six years and not more than 30 years. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8— 1(a)(3).) We are not persuaded that the trial court abused its discretion in sentencing the defendants differently because the court may have considered that the co-defendants pled guilty in determining their sentences.

For the reasons set forth above, defendant’s conviction and sentence is affirmed.

Affirmed.

MANNING, P.J., and CAMPBELL, J., concur.


author: JUSTICE DiVITO

text:
      In re MARRIAGE OF DIANE MARIE DAVIS, Petitioner-Appellee and Cross-Appellant and JAMES NATHANIEL DAVIS, Jr., Respondent-Appellant and Cross-Appellee.
    First District (2nd Division)
    No. 1—88—2302
    Opinion filed May 14, 1991.
    Rehearing denied July 11, 1991.

      Pedersen & Houpt, of Chicago (Marc D. Janser and Marilee Roberg, of counsel), for appellant.
    Schiller, DuCanto & Fleck, Ltd., of Chicago (Donald C. Schiller and Sarane C. Siewerth, of counsel), for appellee.
   JUSTICE DiVITO

delivered the opinion of the court:

Following a nine-day trial, the circuit court granted the dissolution of the marriage of petitioner Diane Davis (Diane) and respondent J. Nathaniel Davis, Jr. (Nat). Nat appeals and Diane cross-appeals from that portion of the judgment which classified and distributed their property. The issues presented are whether the circuit court properly (1) classified securities held in a Merrill Lynch account as marital property; (2) determined that Nat failed to provide clear and convincing evidence of tracing to support his claim of reimbursement for contributions to the marital estate from his nonmarital estate; (3) classified their residence as Diane’s nonmarital property; (4) classified Nat’s profit sharing plan as marital property; (5) divided the property equally between the parties; and (6) determined that Nat had not dissipated marital assets.

Diane and Nat were married on November 1, 1968. They had two children who were adolescents at the time of the dissolution, which occurred on June 2, 1988. From 1969, the family resided at 150 Oxford Road in Kenilworth, Illinois. During their marriage, Diane managed the home and cared for their children and, during periods of visitation, for Nat’s children from a prior marriage. A college graduate, Diane sometimes tutored French on a part-time basis. Before and during their marriage, Nat was employed as the president of the J.N. Davis Co., a family-owned insurance company. He received $40,000 per year, a car, and an expense account; however, most of his income was derived from bonuses and dividends.

In 1981, Nat inherited cash, stocks, and bonds totalling $143,629.56 from his mother. He used these inheritances to establish account number 626 — 10002, a Merrill Lynch cash management account (10002 account). In 1982, Nat inherited additional assets from his father, including cash, bonds, a money market fund, a half interest in a Florida condominium, 1,250 shares of J.N. Davis Co. stock, and stock in Washington National. $241,461.88 in stocks, bonds, and other securities and $153,000 in cash from his father’s money market account were deposited into the 10002 account.

On February 28, 1986, the J.N. Davis Co. underwent a reorganization in which shares of its stock were exchanged for shares in Harcourt Brace & Janovich Co. (Harcourt Brace). On July 3, 1986, Nat sold all of his Harcourt Brace stock, receiving $1,870,561.30 in exchange for his inherited stock and $448,934.66 in exchange for the stock he had purchased during the marriage. On that very day, Nat deposited these proceeds in the 10002 account, but immediately electronically transferred $448,934.66 to a separate account.

The circuit court ordered dissolution of the marriage and entered final judgment on June 2, 1988. The court ordered the parties to carry out a joint parenting agreement which it had approved on September 30, 1986. Nat appeals from that portion of the judgment which classified the Merrill Lynch 10002 account as marital property; classified their residence as Diane’s nonmarital property; classified his IRA rollover account as two-thirds nonmarital and one-third marital; and apportioned their marital property equally. Diane cross-appeals from the circuit court’s finding that Nat did not dissipate marital assets.

I

Nat first maintains that the circuit court erred when it determined the 10002 account was marital property. He contends that, because the 10002 account was created with inherited assets, it should have been classified as nonmarital property pursuant to section 503(a)(1) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 503(a)(1)). He then argues that, to the extent that marital property may have been contributed to the 10002 account, the contributed property was transmuted to nonmarital property subject to a right of reimbursement for the marital estate. Ill. Rev. Stat. 1987, ch. 40, pars. 503(cXl), (c)(2).

Prior to distributing property upon dissolution of marriage, the court must classify it as marital or nonmarital under section 503 of the Act. (Ill. Rev. Stat. 1987, ch. 40, par. 503.) Normally, property acquired by either spouse after the marriage but prior to judgment of dissolution is presumed to be marital property regardless of how title is held. (Ill. Rev. Stat. 1987, ch. 40, par. 503(b).) Property obtained by gift, legacy, or descent, or in exchange for property acquired by gift, legacy, or descent, however, is excepted from marital property and is classified as nonmarital property. (Ill. Rev. Stat. 1987, ch. 40, pars. 503(aXl), (aX2).) Therefore, as Nat contends, property received by him by virtue of inheritance from his parents fell within the exception and qualified as nonmarital property.

Nat deposited portions of his inheritance, various securities, and some cash into the 10002 account. If Nat had deposited nothing into this account other than the securities and cash he had inherited from his parents or received in exchange for inherited assets, no comminingling or transmutation would have taken place; the assets of the account would have remained nonmarital.

Between 1981 and 1985, however, Nat deposited over $340,000 in marital funds into the 10002 account to earn higher interest until he needed to withdraw those funds to pay expenses. By virtue of the structure and operation of the 10002 account, no deposited funds were held in cash. By the end of the month, deposited funds had been used to purchase other stock, bonds, or shares in the cash management account, a money market fund known as the CMA Money Fund. Thus, newly created assets came into being. Once marital and nonmarital funds are commingled and lose their identity through acquisition of a newly created asset during the marriage, the asset is marital. Ill. Rev. Stat. 1987, ch. 40, par. 503(c)(1); In re Marriage of Matters (1985), 133 Ill. App. 3d 168, 478 N.E.2d 1068.

In the 10002 account, shares of the CMA Money Fund were sold to release funds to cover checks written against the account when the temporary cash holdings were insufficient. As each inherited holding was sold, the cash received was used to purchase more shares in the CMA Money Fund, and they in turn were sold to purchase new securities. Though such shares were initially nonmarital property, when excess marital funds were placed in the 10002 account, additional shares of the CMA Money Fund were also purchased.

There therefore was no way to distinguish which CMA Money Fund shares were used to purchase additional stock or bonds. Nat admitted that he could not tell which particular CMA Money Fund shares were sold to buy an asset or to return cash to the joint checking account. Additionally, between July 1986 and March 1987, Nat withdrew money from the 10002 account to purchase the other half of the Florida condominium, the Northbrook townhouse, and other stock and securities. Therefore, all newly acquired property purchased with the proceeds of the sale of CMA Money Fund shares, purchased by indistinguishable marital and nonmarital funds, was properly classified as marital.

With two exceptions, all the securities Nat inherited had been sold during the marriage. The two securities which had not been sold, MIT Insured Trusts and the remaining Washington National stock, were properly awarded to Nat as his nonmarital property. Since no distinction could be made between the CMA Money Fund shares bought with the proceeds from the sale of inherited securities and the shares bought with marital funds, the circuit court did not err when it determined that all other securities held in the 10002 account were marital property. This is so because marital and nonmarital property were “commingled into newly acquired property resulting in a loss of identity of the contributing estates.” Ill. Rev. Stat. 1987, ch. 40, par. 503(cXl).

Nat nevertheless maintains that the 10002 account was a non-marital asset because the account initially consisted of inherited assets. He contends subsequent contributions of marital funds into the 10002 account were immediately transmuted into nonmarital property. This argument ignores the operation of the account and the portion of section 503(c)(1) which provides that the commingling of marital and nonmarital property into newly acquired property results in transmutation to marital property. Nat also asserts that the $340,000 contributed to the nonmarital estate was an insignificant amount and should not have been considered a serious investment. The record reflects, however, that although the value of the 10002 account fluctuated, the value of the account prior to the 1986 deposit remained under $600,000. Therefore, $340,000 was a significant portion and contributed heavily to the account’s earnings.

II

Nat alternatively contends that even if the circuit court properly characterized the 10002 account as marital, he provided clear and convincing evidence of tracing to support his claim of reimbursement for contributions made by him to the marital estate from his nonmarital estate. Diane responds that, because Nat was unable to trace any contributions from his nonmarital estate by clear and convincing evidence, the circuit court properly determined that he was not entitled to reimbursement.

Section 503(c)(2) of the Act provides that when one estate contributes to the property of another estate, the contributing estate is to be reimbursed from the estate receiving the contribution notwithstanding any transmutation, provided the reimbursement is traceable by clear and convincing evidence. (Ill. Rev. Stat. 1987, ch. 40, par. 503(c)(2).) Tracing requires that the source of the funds be identified. Feldman & Fleck, Taming Transmutation: A Guide to Illinois’ New Rules on Property Classification & Division Upon Dissolution of Marriage (1984), 72 Ill. B.J. 336, 339.

Because of the very nature of the 10002 account, it is impossible to ascertain the source of funds with which specific stocks and securities were purchased. The only evidence submitted by Nat to establish that he was entitled to reimbursement was the 10002 account’s monthly statements. While a great portion of the funds in the 10002 account at the time of trial was contributed from Nat’s exchange of nonmarital stock for cash, it is impossible to ascertain the source of funds which purchased stocks which suffered losses or showed gains. Nat therefore failed to trace the individual securities purchased by nonmarital funds by clear and convincing evidence.

Though it was established that Nat intended to segregate the proceeds from his inheritance from the marital estate, there was no evidence as to what portion of the initial $1.8 million remained in the account. Indeed, some of the amount in the CMA Money Fund may have been proceeds from stocks purchased with marital funds. Thus, the circuit court did not err when it determined that the only clear and convincing evidence of remaining nonmarital assets was the MIT Insured Trusts and Washington National stocks. Due to the active trading in the account, a determination of a specific amount of reimbursement to Nat would have been speculative. Based on the evidence presented, no clear and convincing evidence established that the amount contributed by Nat was retraceable so that reimbursement to his nonmarital estate pursuant to section 503(c)(2) was appropriate.

Ill

Nat next contends that the parties’ residence was improperly classified as Diane’s nonmaterial property.

Section 503(b) of the Act provides:

“(b) For purposes of distribution of property pursuant to this Section, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage, including non-marital property transferred into some form of co-ownership between the spouses, is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership ***. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (a) of this Section.” Ill. Rev. Stat. 1987, ch. 40, par. 503(b).

Nat maintains that he did not make a gift of the marital residence to Diane and that the evidence presented at trial was insufficient to rebut the statutory presumption. Diane contends that based on her own testimony, that of Nat, and that of Nat’s attorney, Samuel Young, the circuit court correctly ruled that the marital residence was her nonmarital property.

The presumption of marital property can be overcome only by clear, convincing, and unmistakable evidence. Mere proof that title to a tract was placed in one party’s name does not rebut the presumption created by section 503 (In re Marriage of Deem (1984), 123 Ill. App. 3d 1019, 463 N.E.2d 1317); there must be a donative intent to pass title and relinquish all present and future dominion over the property. In re Marriage of Simmons (1980), 87 Ill. App. 3d 651, 409 N.E.2d 321.

In the instant case, testimony of Nat and Samuel Young established the reason for the conveyance to Diane. The parties acquired the house at 150 Oxford Road in Kenilworth, Illinois, on December 15, 1969. On May 1, 1978, Nat quit-claimed his interest to Diane; the house remained in her name from that date. Nat testified that after the 1978 change in estate tax laws, he consulted with his attorney, who suggested that title to the house be put in Diane’s name. Young testified that his advice was to eliminate a taxable asset in Nat’s estate and to create more equally divided assets. The testimony of the parties was in conflict as to whether Nat intended to convey the house as a gift or wholly for tax purposes. Diane executed no reassignments or reconveyances and was not named an undisclosed trustee or nominee for Nat.

The circuit court relied heavily on Wodehouse v. Commissioner of Internal Revenue (2d Cir. 1949), 177 F.2d 881, as dispositive of Nat’s actions. In Wodehouse, the court held that the motive to transfer property to a spouse to reduce income taxes did not preclude the making of a valid gift. The court determined that the instrument of conveyance expresses the grantor’s intent and “deprives him absolutely of all interest in or control over the property transferred.”

Here, the circuit court’s heavy reliance on Wodehouse was improper as Illinois case law provides more pertinent guidance. Illinois courts have expressly rejected the position that transfer of title to one spouse is sufficient to rebut the presumption of marital property, which exists “regardless of whether title is held individually or by the spouses in some form of co-ownership.” (Ill. Rev. Stat. 1987, ch. 40 par. 503(b).) For example, in In re Marriage of Parr (1981), 103 Ill. App. 3d 199, 207, 430 N.E.2d 656, the presumption was not rebutted where the husband quitclaimed his interest in a condominium to the wife primarily for business and tax purposes. Similarly, in In re Marriage of Leff (1986), 148 Ill. App. 3d 792, 499 N.E.2d 1042, where the husband testified that he backdated a quitclaim deed to property to protect it from a possible civil action, the court determined that no true donative intent was shown.

Further, in In re Marriage of Wittenauer (1981), 103 Ill. App. 3d 53, 55, 430 N.E.2d 625, the court held that real property acquired after the marriage but placed in the wife’s name “as an estate planning device” and “to avoid unfavorable tax consequences” was marital. The wife maintained the tract of land was a gift to her and thus non-marital property under section 503(aXl). The court recognized that the husband never relinquished control of the parcel in question, and in fact treated it as his property. Mere proof that title was held in his wife’s name did not rebut the presumption contained in section 503(b). Wittenauer, 103 Ill. App. 3d at 55.

Here, Nat and his attorney established that the conveyance was part of an estate tax planning scheme. Nat continued to control the home by making payments for mortgages, taxes, insurance, and by making improvements. Moreover, he filed no gift tax return. The clear and convincing evidence necessary to rebut the presumption of marital property did not exist. The circuit court’s determination that the family residence was Diane’s nonmarital property and not marital property was error and is reversed.

IV

Nat next maintains that the circuit court improperly classified as marital property an IRA rollover account derived from his interest in the J.N. Davis Co. profit sharing plan. He alternatively asserts that the circuit court improperly valued his nonmarital contribution to the IRA rollover account. We agree that the account was improperly valued.

Retirement benefits earned during the marriage in the form of pensions and profit sharing interests are designated as marital property. (In re Marriage of Pieper (1979), 79 Ill. App. 3d 835, 398 N.E.2d 868.) Upon dissolution, the marital portion of such a pension or profit sharing interest, calculated by the ratio of years of accumulation during marriage to the total years of accumulation, should be divided between the spouses. (See In re Marriage of Coram (1980), 86 Ill. App. 3d 845, 408 N.E.2d 418; In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 397 N.E.2d 511.) An alternative method has been used in similar apportionment decisions concerning life insurance and equity in a home to determine the correct marital portion: if the value of the premarital portion is known, the ratio of that figure to the value of the entire plan at the time of dissolution produces the correct marital portion. In re Marriage of Ryman (1988), 172 Ill. App. 3d 599, 527 N.E.2d 18; In re Marriage of Van Ness (1985), 136 Ill. App. 3d 185, 482 N.E.2d 1049.

Here, the parties stipulated that the premarital portion of the IRA rollover of the J.N. Davis Co. profit sharing plan in 1968 was $57,815.23. Between 1968 and 1976, the company contributed $96,556.61 to the plan. The percentage of the nonmarital portion to the marital portion is, therefore, 37.5% to 62.5%. When the profit sharing plan terminated in 1976, the total amount of $256,933.63, which included appreciation of $102,561.79, was rolled by Nat into an IRA account. The circuit court properly classified the IRA, which solely through the accrual of interest was valued at $633,195 at the time of dissolution, as partially marital and partially nonmarital. The court properly concluded that the character of the pension plan had not changed merely because it had been terminated by the company and Nat had rolled it into an IRA account. The marital estate is entitled to reimbursement for the portion it contributed to this account; however, the court’s approximation of a 2 to 1 ratio was in error. The percentages stated above are more accurate and prevent any unjust windfall. This portion of the circuit court’s judgment is therefore reversed and remanded with directions to reimburse the marital estate $395,747 rather than the $422,086 awarded by the court.

V

Nat next contends that the circuit court abused its discretion by dividing assets equally between the parties and by refusing to reopen proofs concerning the value of certain property. Diane maintains that the division of marital property in approximately equal proportions was supported by the manifest weight of the evidence and was within the circuit court’s discretion. She contends that the valuation date for the various assets was within the circuit court’s discretion and appropriate.

A reviewing court will not disturb the circuit court’s equitable distribution of property, absent a showing that there was an abuse of discretion. (In re Marriage of Weinberg (1984), 125 Ill. App. 3d 904, 466 N.E.2d 925.) The touchstone of a proper apportionment is whether it is equitable in nature. (See In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 398 N.E.2d 126.) Section 503(d) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 503(d)) sets forth factors for the court to consider in order to divide the parties’ accumulated marital estate in just proportions. While the circuit court must consider all relevant factors under section 503(d), it need not make a specific finding as to each relevant factor. (In re Marriage of Benz (1988), 165 Ill. App. 3d 273, 518 N.E.2d 1316; In re Marriage of McNeeley (1983), 117 Ill. App. 3d 320, 453 N.E.2d 748.) The circuit court has broad discretion to apportion marital property in just proportions (In re Marriage of Bentivenga (1982), 109 Ill. App. 3d 967, 441 N.E.2d 336), and will be reversed only if no reasonable person would take the view adopted by the circuit court. In re Marriage of Lee, 78 Ill. App. 3d at 1127.

The most cogent argument which Nat advances as to the purported impropriety of the property disposition order entered by the circuit court is that, instead of giving him a higher proportion of the assets based on his substantial contributions to the estate, it divided the marital estate equally. This argument has some superficial appeal, but the record establishes that the circuit court carefully considered each factor in light of the preference for apportioning property so that an award of maintenance would not be necessary. In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 411 N.E.2d 238.

In applying the factors provided by section 503(d), we note that the marriage was of long duration; Diane made substantial contributions as a homemaker, especially in caring for the two children; there was evidence that Diane assisted Nat with his employment by such activities as entertaining clients. The record also discloses that Diane has a lower earning capacity than Nat and is suffering from poor health. The property division had to take into account Diane’s demonstration that she had poor prospects for acquisition of assets in the future. (In re Marriage of Asehwanden, 82 Ill. 2d 31; In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 511 N.E.2d 676.) In fashioning the property disposition under review, the circuit court considered all relevant factors contained in section 503(d). Although other courts may have apportioned the property differently, the property distribution here does not indicate an abuse of discretion necessitating reversal. In re Marriage of Lee, 78 Ill. App. 3d at 1127.

Nat has also failed to show that the circuit court erred in its distribution of property because it failed to consider the tax consequences of the property division. In its oral pronouncement, the court stated it considered all factors in section 503(d), which would include the provision of section 503(d)(ll) pertaining to the tax consequence of the property division upon the respective economic circumstances of the parties. Here, the circuit court ordered that Nat pay to Diane $1,355,049 first from cash being held in the 10002 account and then from two other accounts. Any amount still unpaid from those cash resources was to be paid from the liquidation of the securities held in the 10002 account. The court may consider only those tax consequences that immediately and consequentially flow from the court’s division. In re Marriage of Emken (1981), 86 Ill. 2d 164, 427 N.E.2d 125.

Although Nat argues that the division forces him to liquidate assets and pay taxes on the gains, the record is devoid of any proof that this is an immediate consequence of the circuit court’s order. Apparently, in the past when Nat has had to liquidate assets to pay for other expenses, no tax consequences were incurred. Despite Nat’s assertion that, instead of cash, Diane should receive the amount in securities of like kind, evidence that the needs of Diane are for liquid assets and that the order did not immediately expose Nat to negative tax consequences supports the decision of the circuit court and should not be overturned. See In re Marriage of Ohrt (1987), 154 Ill. App. 3d 738, 507 N.E.2d 160.

Nat further argues that the circuit court should have reopened proofs concerning the values of certain assets. However, the record shows that the values used in apportioning property were ascertained in March and April 1988, a short time prior to final judgment in June 1988. The valuation date was not so remote from the date of judgment in time or significant events (see In re Marriage of Rubinstein (1986), 145 Ill. App. 3d 31, 495 N.E.2d 659; In re Marriage of Suarez (1986), 148 Ill. App. 3d 849, 499 N.E.2d 642), and delays of longer periods of time have been held acceptable. In re Marriage of Courtright (1987), 155 Ill. App. 3d 55, 507 N.E.2d 891.

Nat specifically contends that the valuation of the house was over three years old and therefore a current assessment should have been conducted because its value may have increased. The parties, however, stipulated to the value of their marital residence at trial. Absent fraud or collusion, the stipulation as to the value of property is binding. (In re Marriage of Heller (1987), 153 Ill. App. 3d 224, 505 N.E.2d 1294; In re Marriage of Hilkovitch (1984), 124 Ill. App. 3d 401, 464 N.E.2d 795.) Nevertheless, Nat maintains that the circuit court erred in not reopening proofs.

The denial of a motion to reopen proofs is within the sound discretion of the circuit court and will not be disturbed absent a clear abuse of discretion. (In re Marriage of Weinstein (1984), 128 Ill. App. 3d 234, 470 N.E.2d 551.) If evidence offered for the first time in a post-trial motion could have been produced at an earlier time, it is not an abuse of discretion for the court to deny its introduction into evidence. (In re Marriage of Collins (1987), 154 Ill. App. 3d 655, 506 N.E.2d 1000.) Nat’s post-trial motion failed to offer any evidence that the value of the house increased over an 11-month delay, such that it was an abuse of discretion for the circuit court to deny his motion. The fact that the judgment includes the valuation of the Northbrook and Florida residences stipulated to at trial is supportive of the circuit court’s denial of the motion. Nat offered no proof at trial that the value of the house was no longer accurate and, based on the record, the circuit court did not abuse its discretion when it denied Nat’s motion. However, because the court erred when it determined the house was nonmarital property, upon remand, a current assessment of the house must be obtained and utilized.

VI

Diane asserts in her cross-appeal that the circuit court’s decision that Nat had not dissipated marital property was against the manifest weight of the evidence and therefore an abuse of discretion which should be reversed. She contends that there was sufficient proof that Nat dissipated assets from Merrill Lynch account number 626 — 20505 (20505 account), an account Nat established following Diane’s filing for dissolution of marriage, in which he deposited funds from his annual bonuses or quarterly dividends until needed for expenses. Nat maintains that this claim of dissipation cannot be allowed because Diane expressly waived the claim in a pretrial memorandum and raised it for the first time in closing argument. He asserts he did not dissipate assets and the circuit court did not abuse its discretion by so ruling.

Although in a pretrial memorandum Diane failed to check a box indicating that dissipation of marital assets was at issue, Diane did not waive the issue. Furthermore, the record supports Diane’s position that Nat knew from the start of the trial, indeed from her opening statement, that she intended to raise this issue for the court to consider. Moreover, Nat failed to object to the raising of the issue during opening statement or when evidence concerning the dissipation of assets from the 20505 account was presented, conduct more indicative of a waiver on his part than on Diane’s part. (See LaGrange Federal Savings & Loan Association v. Rock River Corp. (1981), 97 Ill. App. 3d 712, 423 N.E.2d 496; Pioneer Trust & Savings Bank v. County of Cook (1978), 71 Ill. 2d 510, 377 N.E.2d 21.) The issue, then, is whether the decision that Nat did not dissipate marital assets was against the manifest weight of the evidence and therefore an abuse of discretion. In re Marriage of Smith (1984), 128 Ill. App. 3d 1017, 471 N.E.2d 1008; In re Marriage of Petramale (1981), 102 Ill. App. 3d 1049, 430 N.E.2d 569.

The record reflects that Nat used funds from the 20505 account for trips with the children and for vacations. As the circuit court found, he was merely maintaining the lifestyle that the parties had enjoyed during the marriage. Maintaining the lifestyle established during the marriage does not support a claim of dissipation. (In re Marriage of Matters (1985), 133 Ill. App. 3d 168, 478 N.E.2d 1068.) The record shows that Nat was meticulous about documenting his expenditures and that he accounted for every check written. This is not a case where Nat spent funds during the marriage on a girl friend (In re Marriage of Smith (1984), 128 Ill. App. 3d 1017, 471 N.E.2d 1008), on other nonfamily purposes (In re Marriage of Greenberg (1981), 102 Ill. App. 3d 938, 429 N.E.2d 1334), or secreted funds in other places without explanation (In re Marriage of Petrovich (1987), 154 Ill. App. 3d 881, 507 N.E.2d 207). The 20505 account was established by Nat after his separation from Diane to separate funds from the 10005 account, which he considered to be a nonmarital asset. The 20505 account was marital and not therefore solely for Diane’s benefit. Nat used the account for family expenses, including some of his own which would have been part of the family’s expenses, to benefit all. Though Nat had other funds available to him, he was not required to use those funds prior to use of marital funds for family purposes. Since the evidence was insufficient to support a finding of dissipation, the circuit court ruled correctly. See In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 426 N.E.2d 1087.

For the foregoing reasons, the judgment of the circuit court is affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

SCARIANO, P.J., and HARTMAN, J., concur.