Velarde v. Illinois Central Railroad (354 Ill. App. 3d 523, 2004)

JUSTICE McBRIDE

delivered the opinion of the court:

This appeal involves a collision between a freight train and an automobile which occurred just after noon on January 9, 2001, on Army Trail Road in Bloomingdale, Illinois. The owner and maintainer of the tracks, defendant Illinois Central Railroad Company, d/b/a Canadian National/Illinois Central Railroad Company (CNIC or railroad), knew that snow and road salt had caused the intersection’s warning gates and lights to malfunction and was using a stop-and-flag procedure there until the signals were repaired. On this particular dry, sunny Tuesday afternoon, however, a CNIC dispatcher mistakenly advised a northwestbound train’s engineer that the signal problem had been fixed, and the train, consisting of three locomotives and 63 cars, proceeded through the intersection at 50 miles per hour. The passengers of the southbound automobile it struck, plaintiffs Fidel and Francisca Velarde, and the driver of the automobile, the Velardes’ adult daughter, Lilia Apulello, sustained primarily internal and closed-head injuries when their 1998 Ford Explorer was broadsided and then rolled several times. The Velardes filed a negligence action against CNIC and the owner and operator of the train, defendant Chicago Central & Pacific Railroad Company (CC&P). Lilia filed a separate action against the same two defendants, which was consolidated with her parents’ suit. As a result of her head injuries, however, Lilia was subsequently declared a disabled person, and her co-guardians, The Northern Trust Company and her husband, Rafael Apulello, became the plaintiffs to her claim (Lilia or the Apulellos). Rafael also added a claim of his own for loss of consortium. A jury awarded more than $54 million to the occupants of the Ford Explorer and apportioned 60% liability to CNIC, 35% to CC&P and 5% to Lilia, resulting in a slight reduction of the monetary awards. The jury also awarded Rafael $3.5 million. The trial judge entered judgment on the awards and denied motions for judgment notwithstanding the verdict and a new trial. On appeal, CNIC and CC&P contend (1) the use of a day-in-the-life video about Lilia, (2) the slight allocation of negligence to Lilia, (3) the large awards, and (4) improper closing arguments warrant a new trial on the issues of liability and damages, or damages alone, or alternatively, remittitur by $38 million.

The focus of defendants’ appeal is their contention they were “ambushed” by the Velardes and Apulellos on the first day of trial with a 22-minute day-in-the-life video about Lilia. Defendants state they were surprised by the video’s existence, vehemently and repeatedly objected to its presentation to the jury, and then suffered a predictable “bloodbath” in excessive damages and badly misallocated fault when the video unfairly elicited sympathy for plaintiffs. Defendants contend the case must be retried without the video.

The facts pertinent to this issue are as follows. In March 2001, defendants issued Rule 213 interrogatories (177 Ill. 2d R. 213), which included a question as to whether any photographs, movies and/or videotapes had been taken of the accident scene or the vehicle or persons involved. In June 2001, Lilia answered this question, “None.” Trial was scheduled for Monday, January 28, 2002. Fact and opinion discovery closed in mid-November 2001. The video was recorded on January 8 and 12, or on January 8 and 16, 2002 — the earlier dates appear in the transcripts and briefs, and the latter are marked on the copy of the video used during the trial. The Apulellos’ attorney finished editing the raw video footage on Friday, January 25, 2002.

On Monday, January 28, 2002, the Apulellos’ attorney told defense counsel that he had the video and intended to use it at trial. The video was discussed for the first time on the record that day, during the presentation of numerous motions in limine. At that point, neither the judge nor defendants had viewed the recording, and the judge deferred ruling on its admissibility.

The video was next addressed immediately after jury selection, on Tuesday, January 29, 2002. The Apulellos’ attorney again raised the subject, describing the film as “demonstrative” rather than substantive evidence of the nature and extent of Lilia’s injuries and indicating the parties were still exchanging demonstrative exhibits. The defense attorney acknowledged the defense was still working on a diagram, but said he was objecting to plaintiffs’ use of the video because it was “way past any discovery disclosure time” and contained “testimonial” audio and unnecessary scenes. The Apulellos’ attorney then offered to use the video without the audio track, said he would take out scenes showing Lilia’s sister and nephew cleaning the house, and suggested the attorneys could meet that evening to reach an agreement about what else to “take out.” The trial judge said “Okay,” and then proceeded to address other aspects of the trial. The attorneys met that evening. According to a sworn statement from the Apulellos’ attorney, he edited scenes from the video immediately after the attorneys met, in “strict accordance” with defense counsel’s requests, and this version of the video was used at trial. The record shows the Apulellos’ attorney played a few minutes of the video without the audio track during his opening statements, without objection from defendants. There was also no objection when Lilia’s sister and Rafael narrated portions of the silenced recording while they described Lilia’s weekday and weekend activities.

However, at the end of the week, on Friday, February 1, 2002, defense counsel broached the topic with the judge, stating:

“[DEFENDANTS’ COUNSEL]: [The Apulellos’ attorney] and I met [Tuesday night] at my office. I said, Look, I’ll withdraw my objection if A, you take the audio out, B, some other parts and the other thing I said is I want the outtakes, I wanted unedited tapes, that was my deal.

I haven’t gotten them, and my indication here today is I’m not going to get those unedited tapes. If that’s the case then I’m going to renew my objection.”

The Apulellos’ counsel responded that according to the supreme court’s opinion in Cisarik v. Palos Community Hospital, 144 Ill. 2d 339, 579 N.E.2d 873 (1991), the Apulellos’ outtakes from the original footage were privileged attorney work product, but that he had been willing to give the defense the edited version of the film which the Apulellos had intended to use at trial and the scenes defense counsel edited from that version when the attorneys met to review the prepared exhibit. The defense attorney countered:

[DEFENDANTS’ COUNSEL]: Judge, *** I don’t have it here because this issue just came up, [but] there is actually some [case law] that [indicates] *** I’m even entitled to be there at the time these [scenes] are filmed. This is essentially no matter how you cut it, whether there is voice on it or no voice on it, a day in the life is a testimonial presentation. I can’t cross[-] examine the film.

The only thing I can do is see what was pulled out. What was pulled out is in essence a way that I could cross[-]examine ***. *** I’m renewing my objection if I don’t get those outtakes.”

The Apulellos’ attorney responded that Cisarik was case law directly on point and that it shielded the Apulellos’ outtakes from discovery. He questioned whether he would be expected to bring in all the drafts of any other trial exhibit. The defense attorney admitted that he was unfamiliar with Cisarik, but stated, “I was withdrawing an objection *** to the video because they agreed, A, to take out the audio, B, because they agreed to take out pieces of it, and I said C, I want the outtakes.” The trial judge reassured defense counsel that he would receive plaintiffs’ outtakes if the defense was legally entitled to them. However, after the defense attorney reviewed Cisarik during a break in the proceedings, he stated:

“[DEFENDANTS’ COUNSEL]: Judge, for the record, I am not going to disagree with what [the Apulellos’ counsel] said Cisarik says. It does.

I just want to make clear on the record my objection because, on the record, I disagree with Cisarik. I think it is wrong.

My objection is A, that in my view it should have been produced during discovery so I am renewing that objection.

B, I believe the outtakes are not work product, and that’s it.” Nevertheless, in their combined posttrial motion for a new trial and judgment notwithstanding the verdict, defendants argued in part that the video should have been barred because defendants were wrongfully denied plaintiffs’ outtakes. The Apulellos responded that the version used at trial was in fact “defense-approved.” They summarized the proceedings quoted above and tendered the affidavit referenced above in which plaintiffs’ counsel described his interaction with the defense attorney. Defendants moved to strike the attorney’s affidavit, arguing that it contradicted an on-the-record statement of facts, and the trial judge denied the motion without comment.

Defendants’ first specific contention about the video is that it contained fact and opinion testimony and was therefore “substantive evidence” which should have been barred from the trial because it was not timely disclosed in response to defendants’ Rule 213 interrogatories. 177 Ill. 2d Rs. 213(a), (d). Rule 213(i) imposes a continuing duty on a party to “seasonably supplement or amend any prior answer or response whenever new or additional information subsequently becomes known to that party.” 177 Ill. 2d R. 213(i). In addition to citing the various paragraphs of Rule 213 and a host of related cases, defendants cite Wiker v. Pieprzyca-Berkes, 314 Ill. App. 3d 421, 430, 732 N.E.2d 92, 99 (2000), and Warrender v. Millsop, 304 Ill. App. 3d 260, 264, 710 N.E.2d 512, 519 (1999), for the proposition that the video was untimely disclosed or improperly withheld evidence. The Apulellos respond that the video was properly admitted as demonstrative evidence, pursuant to Cisarik, 144 Ill. 2d 339, 579 N.E.2d 873. Additionally, defendants’ concerns about the video were accommodated when their attorney previewed and edited out certain footage, and the audio track was silenced while trial witnesses, whose testimony was subject to objection and cross-examination, provided narration. The Velardes add that they did not make, introduce, or use the video and that defendants have cited no authority for the proposition that the Velardes had a duty to produce someone else’s demonstrative evidence.

The admission of a film into evidence is within the sound discretion of the trial court (Carney v. Smith, 240 Ill. App. 3d 650, 656, 608 N.E.2d 379, 383 (1992)), and an abuse of discretion occurs only where no reasonable person would agree with the trial court’s conclusion. Schwartz v. Cortelloni, 177 Ill. 2d 166, 685 N.E.2d 871 (1997).

Defendants’ assertion that the day-in-the-life video was substantive evidence is refuted by the opinion which the Apulellos repeatedly cited at trial and defendants now almost ignore, Cisarik, 144 Ill. 2d 339, 579 N.E.2d 873. That case involved a brain-damaged infant and allegations of medical negligence. Cisarik, 144 Ill. 2d at 341, 579 N.E.2d at 874. The pertinent details are disclosed by opinions issued by the appellate and supreme courts. Cisarik v. Palos Community Hospital, 193 Ill. App. 3d 41, 549 N.E.2d 840 (1989), aff’d in part & rev’d in part, 144 Ill. 2d 339, 579 N.E.2d 873 (1991). The plaintiffs attorney decided to make a film depicting a typical day for the infant, in order to give the jury a grasp of the full extent of her disabilities. Cisarik, 144 Ill. 2d at 341, 579 N.E.2d at 874. The defense persuaded the trial judge to issue a protective order permitting each party to have one lawyer present during the filming, a copy of the finished film as well as all edited-out and unused footage, and the right to depose any authenticating witnesses. Cisarik, 193 Ill. App. 3d at 43-45, 549 N.E.2d at 841-42. The judge reasoned that a day-in-the-life film was like an evidence deposition, and therefore it was subject to similar treatment. Cisarik, 193 Ill. App. 3d at 45, 549 N.E.2d at 842. The plaintiff, however, did not want the defense present during filming and took an appeal.

The appellate court disagreed only slightly with the trial judge’s approach and found that because the film’s preparation itself was not evidence, the plaintiffs attorney could make the film without opposing counsel in attendance. Cisarik, 193 Ill. App. 3d at 45, 549 N.E.2d at 842. The appellate court modified the protective order accordingly. Cisarik, 193 Ill. App. 3d at 45, 549 N.E.2d at 842. Notably, it did not disturb and in fact it expressly reiterated the portions of the order requiring (a) that all the film, whether or not it was used in the plaintiffs final edited version, be preserved for the defendants’ viewing and use at trial as their own evidence, and (b) that the plaintiffs authenticating witnesses be subject to deposition. Cisarik, 193 Ill. App. 3d at 45, 549 N.E.2d at 842.

On further appeal to the supreme court, however, the entire protective order was reversed. Cisarik, 144 Ill. 2d at 343, 579 N.E.2d at 875. The supreme court determined that when viewed in its “proper light,” a day-in-the-life film is “merely a type of demonstrative evidence,” comparable to a still photograph, a drawing, a model, or even a chart, that it “has no probative value in itself,” and that it serves only as a “visual aid to the jury in comprehending the verbal testimony.” Cisarik, 144 Ill. 2d at 341, 579 N.E.2d at 874. In addition, the “preparation of such evidence” is properly deemed “the work product of the lawyer who is directing and overseeing its preparation” {Cisarik, 144 Ill. 2d at 341, 579 N.E.2d at 874), and “opposing counsel has no right to intrude into the production of this demonstrative evidence” {Cisarik, 144 Ill. 2d at 342, 579 N.E.2d at 875). The supreme court was not swayed by the defendants’ argument that day-in-the-life films are a “parade of horribles” which should be subject to more stringent discovery guidelines than other types of evidence. Cisarik, 144 Ill. 2d at 342, 579 N.E.2d at 874. Instead, the court found that the standard two-prong test for admissibility of evidence such as still photographs, when and if the plaintiff offered the film into evidence at trial, would adequately protect the defendants. Cisarik, 144 Ill. 2d at 342, 579 N.E.2d at 874. Under the first prong, a foundation would have to be laid that the film was an accurate portrayal of what it purportedly showed, and under the second prong, the film’s probative value could not substantially outweigh the danger of unfair prejudice. Cisarik, 144 Ill. 2d at 342, 579 N.E.2d at 874.

Cisarik makes clear that day-in-the-life-films are considered demonstrative evidence which helps jurors understand witness testimony, rather than additional substantive evidence. Furthermore, it appears defendants’ “substantive evidence” arguments more or less repeat Cisarik’s dissent. For example, the dissent emphasized that pretrial discovery promotes fair, efficient, and expeditious proceedings leading to the truth, rather than “trial as a battle of wits” (Cisarik, 144 Ill. 2d at 345-46, 579 N.E.2d at 876 (Miller, J., dissenting, joined by Freeman, J.)), and defendants here remark that the objectives of pretrial discovery include “enhanc[ing] the truth-seeking process,” and “stop[ping] last minute trickery.” The dissent stated that comparing a day-in-the-life film to other types of demonstrative evidence, such as a chart or graph, “overlooks the special nature” and “powerful and distinctive nature” of a day-in-the-life film (Cisarik, 144 Ill. 2d at 346, 579 N.E.2d at 876 (Miller, J., dissenting, joined by Freeman, J.)), and defendants echo that a day-in-the-life video “is virtually unique in its probative impact,” and “able to inform and promote a better understanding *** as no other evidence can do” (emphasis in original). Based on these principles about discovery and the power of film, the dissent expressed concern that the opinion was “eliminating [the] defendants’ discovery rights on the ground that the proposed film must ultimately satisfy tests for admissibility at trial” (Cisarik, 144 Ill. 2d at 345, 579 N.E.2d at 876 (Miller, J., dissenting, joined by Freeman, J.)) and “revert[ing] to the kind of trial by ambush that can result when discovery rights are ignored” (Cisarik, 144 Ill. 2d at 346, 579 N.E.2d at 876 (Miller, J., dissenting, joined by Freeman, J.)). Similarly, defendants now contend they were “ambushed” by the video and “in the age of full disclosure, the proceedings below are hard to fathom.” Defendants’ arguments do not persuade us to contravene Cisarik and conclude that the Apulellos’ video should have been treated as additional testimony or substantive evidence, because it is not within our authority to overrule the supreme court or modify its decisions. Walton v. Norphlett, 56 Ill. App. 3d 4, 5, 371 N.E.2d 978, 979 (1977); Belden Manufacturing Co. v. Chicago Threaded Fastners, Inc., 84 Ill. App. 2d 336, 340, 228 N.E.2d 532, 534 (1967).

As for Wiker, it concerned a surveillance video that was never used at trial; therefore, it was only dictum when the court indicated a surveillance video must be disclosed before it can be used at a trial even for cross-examination. Wiker, 314 Ill. App. 3d at 430, 732 N.E.2d at 99. We also point out that the court gave no indication when such disclosure must occur. Wiker, 314 Ill. App. 3d at 430, 732 N.E.2d at 99. Therefore, Wiker’s value here is nominal, at best. In defendants’ other case, Warrender, the court found that a discovery violation occurred when the defendant kept a surveillance video of the plaintiff for two months before turning it over. Warrender, 304 Ill. App. 3d at 270, 710 N.E.2d at 519. However, nothing comparable occurred here. The Apulellos’ video was disclosed and tendered at the first opportunity. Filming began about three weeks before trial and took about one week to complete. The raw footage was then reviewed and edited by the Apulellos’ attorney during the week preceding trial, and was finalized on a Friday. The Apulellos’ attorney disclosed and tendered the video on the following Monday, supplementing the prior interrogatory answer that there was no video of the accident victims. Defendants’ additional contention that the video should have been barred outright because the Apulellos delayed in creating it and did not disclose it at least 60 days before trial pursuant to Supreme Court Rule 218(c)) (166 Ill. 2d R. 218(c)) is unpersuasive, given that the record suggests the court modified the discovery deadline. Defendants do not deny the Apulellos’ assertion that depositions were being taken by both sides until a week before trial. Moreover, since the purpose of the video was to illustrate the evidence regarding Lilia’s life at the time of trial, it would make little sense to record her activities months in advance.

Thus, we are not persuaded by defendants’ arguments that a retrial is warranted because the day-in-the-life video was disclosed and tendered too late in the proceedings.

Defendants’ second main contention about the video is that they were entitled to discover the plaintiffs’ outtakes but the trial judge erroneously read Cisarik as an indication that outtakes are protected by the attorney work product privilege and plaintiffs’ counsel reneged on an agreement to surrender them. Defendants argue Cisarik's “true holding” does not support the judge’s ruling and urge this court to consider that the Cisarik briefs filed in the supreme court and now appended to defendants’ reply brief did not ask the court to conclude that outtakes are privileged. Defendants also argue the trial judge should have stricken the affidavit of the Apulellos’ attorney in which he described his interaction with defense counsel, because the affidavit contradicted an on-the-record statement that there was an agreement to tender all the outtakes. Defendants contend that the prejudice which resulted from their inability to use the outtakes entitles them to a new trial without the film.

The Apulellos respond that defendants already conceded on the record that Cisarik shielded the Apulellos’ outtakes from discovery, and, therefore, the argument is waived on appeal. Further, the concession was correct; the trial judge’s application of the case was also correct; and this intermediate court of appeal has no authority to contradict a higher court’s opinion. In a motion ordered taken with the case, the Apulellos contend the Cisarik briefs are not properly before this court and should be stricken from defendants’ reply brief. As for the accuracy of their attorney’s affidavit regarding the extent of his agreement with defense counsel, according to the Apulellos, the record discloses they consistently refused to produce their own outtakes based on Cisarik and its indications about outtakes and the attorney work product doctrine. The Velardes add the record shows they were not involved in the dispute about the outtakes.

We find defendants waived any contention they were prejudiced by their lack of access to the Apulellos’ outtakes, because defendants failed to object when the edited video was first shown to the jury during the Apulellos’ opening statements and when it was used to illustrate witness testimony. Chubb/Home Insurance Cos. v. Outboard Marine Corp., 238 Ill. App. 3d 558, 573, 606 N.E.2d 423, 573 (1992) (failure to timely object waives question for purposes of review).

An additional reason for finding waiver is that defendants conceded on the record on February 1, 2002, that they were not entitled to the Apulellos’ outtakes, based on Cisarik and the attorney work product doctrine. The transcript quoted earlier indicates defense counsel £