In re Estate of Mankowski

Illinois Official Reports

Appellate Court

In re Estate of Mankowski, 2014 IL App (2d) 140154

Appellate Court In re ESTATE OF WALTER MANKOWSKI (Susan Mankowski, as

Caption Special Administrator of the Estate of Walter Mankowski,

Plaintiff-Appellee, v. Keith Nemec and Total Health Institute, P.C.,

Defendants-Appellants).

District & No. Second District

Docket No. 2-14-0154

Filed December 24, 2014

Held The jury’s award for decedent’s estate in a wrongful death action

(Note: This syllabus alleging that defendants were negligent in caring for decedent was

constitutes no part of the affirmed on appeal over defendants’ contentions that plaintiff was

opinion of the court but improperly appointed as special administrator and the Wrongful Death

has been prepared by the Act claims were nullities, that trial court errors warranted vacating the

Reporter of Decisions judgment and that the damage award should be reduced.

for the convenience of

the reader.)

Decision Under Appeal from the Circuit Court of Lake County, No. 11-L-276; the

Review Hon. Margaret J. Mullen, Judge, presiding.

Judgment Affirmed.

Counsel on Terrence J. Madden and Tina M. Paries, both of Bryce Downey &

Appeal Lenkov LLC, of Chicago, for appellants.

Margaret Morrison Borcia, of Morrison & Morrison, P.C., of

Waukegan, for appellee.

Panel JUSTICE HUTCHINSON delivered the judgment of the court, with

opinion.

Justice Zenoff specially concurred, with opinion.

Justice McLaren specially concurred, with opinion.

OPINION

¶1 On March 30, 2009, Walter Mankowski was admitted to the hospital following an

eight-day inpatient treatment stay at the Total Health Institute (the Institute), and he

subsequently died. On March 25, 2011, Walter’s wife, Susan Mankowski, as special

administrator of the estate of Walter Mankowski, and Walter’s son, David Mankowski, filed

a complaint alleging that defendants, Keith Nemec, D.C., and the Institute, acted negligently

in providing care for Walter. As amended, the complaint sought relief pursuant to the

Wrongful Death Act (the Act) (740 ILCS 180/1 et seq. (West 2008)) and alleged breach of

contract. The contract claim was later voluntarily dismissed, leaving Susan as the only

plaintiff. A jury found in favor of plaintiff and assessed damages of $2,522,847. The trial

court entered judgment on the jury’s verdict, plus costs. Defendants filed a posttrial motion,

which, following a hearing, the trial court denied. Defendants filed a timely notice of appeal,

raising three central contentions: (1) the trial court’s appointment of plaintiff as special

administrator was improper, and therefore the judgment should be vacated because it was

entered on Wrongful Death Act claims that were nullities; (2) alternatively, this court should

remand for a new trial because of trial court errors; and (3) alternatively, this court should

reduce the award of damages. We affirm.

¶2 I. BACKGROUND

¶3 According to the complaint, on or about March 3, 2009, Walter was a patient at Skokie

hospital and was diagnosed with stage IV gastric carcinoma with metastasis to his liver. The

family decided to pursue alternative treatments to chemotherapy. They viewed the Institute’s

website and met with Nemec. Nemec indicated that four weeks of treatment would cost

$22,847; David agreed and paid for the treatment. Walter was discharged from the hospital

on March 20, 2009, and admitted to the Institute on March 23, 2009. While at the Institute,

Walter’s condition deteriorated, and on March 30, 2009, David transported Walter back to

the hospital, where Walter later died, on April 7, 2009.

¶4 On March 25, 2011, Susan and David filed a four-count complaint against defendants.

The caption identified the complaint as being brought by “Susan Mankowski, Special

Administrator of the Estate of Walter Mankowski, deceased, and David Mankowski.” Count

I alleged a cause of action sounding in negligence pursuant to the Act (740 ILCS 180/1 et

seq. (West 2008)) and was brought by Susan against Nemec. Count II was similar to count I

but was brought by Susan against the Institute. Counts III and IV alleged violations of the

Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/2 (West

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2008)) but were later dismissed. Count III was amended to allege breach of contract against

Nemec, but was later voluntarily dismissed. Thus, Susan was the only plaintiff remaining.

¶5 On September 10, 2013, plaintiff filed a motion seeking leave to file a petition for the

appointment of a special administrator. Plaintiff acknowledged that, in a wrongful death

action, first the administrator of the decedent’s estate should be appointed and then the action

filed, but she alleged that the failure to do so was not fatal to her wrongful death action,

citing Nagel v. Inman, 402 Ill. App. 3d 766 (2010). Plaintiff also requested that the

appointment relate back to when the suit was filed, citing Nagel and Jablonski v. Rothe, 287

Ill. App. 3d 752 (1997).

¶6 Also on September 10, 2013, defendants filed a motion to dismiss the action pursuant to

sections 2-619(a)(1) and (a)(2) of the Code of Civil Procedure (the Code) (735 ILCS

5/2-619(a)(1), (a)(2) (West 2012)). Defendants argued that, although the caption always

identified plaintiff as “Special Administrator of the Estate of Walter Mankowski, deceased,”

there were no factual allegations in the complaint itself relating to plaintiff’s appointment as

special administrator nor was there attached to the complaint any order appointing her.

Defendants argued that plaintiff had no standing or right in her individual capacity to file a

wrongful death action on behalf of Walter. Defendants argued that, because “Susan

Mankowski, Special Administrator of the Estate of Walter Mankowski, deceased” did not

exist, the original complaint was improperly filed, the complaint was void ab initio, and the

trial court never had subject matter jurisdiction over the claims. Defendants further argued

that, after David’s claim in count IV of the original complaint was dismissed, on November

3, 2011, no valid claims remained; since no appeal was taken, the present action terminated

and the order permitting the filing of an amended complaint was void and the current

pleading a legal nullity. Defendants concluded that, because no special administrator was

appointed before the action was filed, and because the action thus was invalid, any

subsequent attempt to add a special administrator could not relate back and should fail.

¶7 The parties fully briefed the issue, and, following a hearing, the trial court denied

defendants’ motion to dismiss; granted plaintiff leave to file her petition for appointment as

special administrator; granted her petition; and entered an order appointing her as special

administrator, for the purpose of prosecuting the present action.

¶8 Before trial, the trial court issued the following rulings on specific motions in limine

pertinent to this appeal: (1) barring the admission of defendants’ exhibits Nos. 5 and 6, which

were copies of a statement by the Institute, signed by Walter and David when Walter entered

the Institute; (2) barring any claim or reference during the trial to fraud by the Institute; and

(3) permitting plaintiff’s expert witness Tracey Thomas to give opinions during the trial.

¶9 The case proceeded to a jury trial on September 24, 2013. After opening statements,

defendants asked the trial court to reconsider its ruling on plaintiff’s motion in limine

regarding the statement signed by Walter and David. The statement reflected, “We do not

treat any disease or condition at the Total Health Institute.” Plaintiff responded that the

statement was irrelevant because it was not a release. The trial court determined, as it had

before, that the statement had no relevance if it was not asserted to be a release. The trial

court further stated, “under the balancing of Rule 403, any probative value was substantially

outweighed by the prejudice concerning the document,” and upheld its prior ruling.

¶ 10 Plaintiff called Christopher Holland, who was the senior pastor for the Seventh-Day

Adventist church in Gurnee. Walter was a member of the church. Holland testified that

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Walter knew how much time he had left to live and that he planned for a new house and a

few trips. Holland saw Walter just before Walter’s admission to the Institute and he testified

that Walter appeared to be in good health and “under his own power got into the vehicle.”

Holland saw Walter again on March 30, 2009, after his time at the Institute, and he observed

that Walter had “sunken cheeks, labored breathing” and “looked like he was about to die.”

¶ 11 Nemec next testified as an adverse witness. Nemec was a licensed chiropractic physician

and he did business under the name of Total Health Institute. His website stated that the

Institute was “one of the leading alternative healing facilities in the country,” where

“[t]housands of patients have been restored to their total health and overcome cancer, *** to

name a few.” There were inpatient and outpatient programs, but there were no medical

doctors affiliated with the Institute in March 2009. Nemec typically saw inpatients three

times per week, but, aside from that, there were no other medical professionals monitoring

the patients. Nemec recalled that Walter was enrolled in a four-week inpatient fasting

detoxification program. Nemec knew that Walter had cancer, but he did not inquire further.

He did not request any medical records or speak to any of Walter’s physicians. Walter’s

kidneys were functioning fairly normally when he was admitted. Nemec gave Walter an

“exam” on March 23, 2009, which was a “treatment” to rebalance his neurological levels. On

March 25, 2009, Nemec gave Walter another treatment and wrote a comment that the

“[p]atient felt better.” On March 28, 2009, Nemec wrote “no change” and performed an

adjustment to balance Walter’s nervous system. It appeared that Walter received two colonic

hydrotherapy and two lymphatic sessions while he was an inpatient. Walter also received a

nutritional program with supplements.

¶ 12 Nemec denied knowledge of Walter’s alleged vomiting, severe abdominal pain, or

bloody diarrhea. Nemec recalled that Walter had jaundice when he arrived at the Institute but

that otherwise he was walking without assistance and “cognitive.” On Friday, he received a

call from his staff relaying that Walter seemed a little more fatigued and had “brain fog,”

described as confusion caused by the detox products. Nemec did not see Walter on Friday or

call a medical doctor on Friday or Saturday. Nemec recalled getting a phone call from David

on Saturday, indicating that Walter seemed to be getting worse, and Nemec’s response was to

“just watch him.” David called Nemec a couple of times on Sunday, indicating that Walter

was getting worse. Nemec did not see Walter on Sunday. At approximately 2 a.m. on

Monday, David called Nemec and said that he was taking Walter to the hospital. Nemec went

to the Institute and saw Walter being helped into a car.

¶ 13 Dr. Leon Dragon, an oncologist, testified as an expert witness. Dragon reviewed Walter’s

records from his hospital stays before and after his stay at the Institute. Dragon also reviewed

Walter’s records from the Institute. Based upon Dragon’s review, the records from the first

hospitalization reflected some evidence of compromised liver function, but Walter was not in

liver failure and he was ambulatory, lucid, alert, and fully functional. Walter also had

virtually normal kidney function. Dragon opined that the median life expectancy of a person

with Walter’s condition was approximately 11 months.

¶ 14 Dragon reviewed the records upon Walter’s second admission to the hospital and noted

that Walter was basically bedridden, was confused, had no urine output, and was

experiencing kidney failure. Dragon opined that the therapy that Walter received at the

Institute resulted in “intravascular volume depletion and renal failure.” Dragon further opined

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that Walter’s cause of death was primarily renal failure and that Walter’s cancer did not

cause the renal failure.

¶ 15 David testified regarding his memories of his time with Walter. David also testified

regarding his family’s decision to engage the services of Nemec and the Institute. David

recalled that the website reflected a price of approximately $18,000, but, when he inquired

further, the receptionist indicated that the four-week treatment program would cost $22,847.

David asked why, and the receptionist indicated that it was because of Walter’s diagnosis of

cancer. David also spoke with Nemec about the need for a cashier’s check to reserve

Walter’s place at the Institute. David recalled, “it was almost like in effect like if a salesman

is trying to get you to buy something and he fears he’s going to lose the sale and he tells you,

okay, if you go–if you come back, it’s going to be gone.” On Friday, March 20, 2009, David

drove to the Institute and dropped off a cashier’s check for the full amount, and the

receptionist indicated that Walter could be admitted the following Monday, March 23.

¶ 16 David offered to provide Walter’s medical records to Nemec but Nemec declined. Nemec

also declined David’s offer for Nemec to speak with Walter’s medical doctors. David was

called to stay with Walter for the first weekend, and he observed that Walter appeared to be

in a “stupor” and “basically just nodded.” David testified that Walter deteriorated throughout

the weekend. David finally took him to the hospital at approximately 2 a.m. the following

Monday.

¶ 17 Following a brief recess, defendants moved for a mistrial, based on a purported violation

of the trial court’s order barring any claim of fraud or deception on the part of defendants.

Defendants referenced David’s testimony that the price of services changed and that Nemec

“was like a salesman trying to close a deal.” Plaintiff responded that defense counsel failed to

object during the testimony and that, further, the testimony did not rise to the level of a claim

of fraud. The trial court noted that defense counsel failed to object and that fraud was not

implied by either David or plaintiff’s counsel. Thus, it denied defendants’ motion for a

mistrial.

¶ 18 Walter’s daughters, Ruth Ann Tallman and Sarah Marie Goodman, testified regarding

their memories of Walter and engaging the services of Nemec and the Institute.

¶ 19 Dr. David Johnson, a chiropractic physician, testified as an expert witness for plaintiff.

Johnson reviewed Walter’s records from the hospital and the Institute and the deposition

testimony of David, Dragon, Dr. Robert Hozman, who was Walter’s treating internist, and

Thomas, a naturopathic oncology provider. He also reviewed the supplements given to

Walter at the Institute and the Institute’s website. Johnson opined that Nemec should have

been aware of Walter’s susceptibility to dehydration. Johnson also opined that Nemec

breached the standard of care by: treating Walter without coordinating with his medical

doctors; advising Walter and his family that the fasting and detoxification program could

heal him; failing to recognize that Walter had severely decreased liver function upon his

admission to the Institute; failing to review Walter’s medical history; failing to know that the

treatments he gave to Walter were contraindicated for a patient with severely decreased liver

function; failing to consult with experts and medical doctors; failing to properly monitor

Walter with qualified medical personnel; failing to see, examine, or transfer Walter to the

hospital on Friday when he learned that Walter was having problems getting up and getting

around; failing to see, examine, or transfer Walter to the hospital on Sunday; treating Walter;

failing to consider Walter’s condition and modify his treatments; failing to obtain informed

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consent; and failing to inform Walter and his family that chemotherapy was the best option to

prolong Walter’s life. Johnson concluded that all of Nemec’s breaches of the standard of care

were proximate causes of Walter’s kidney failure and death.

¶ 20 Hozman testified by video deposition. When Walter was first admitted to Skokie hospital

from March 10 to March 23, 2009, he suffered from gastric carcinoma with a secondary

spread to the liver. Hozman told the family that Walter had six to eight months to live

without chemotherapy. Hozman recalled that the family wanted to explore alternative

options; Hozman did not believe that this was a good idea. Walter was brought back to the

hospital on March 30, 2009, with gastrointestinal bleeding and acute renal failure. Hozman

opined that dehydration was a proximate cause of the renal failure and that the renal failure

was a proximate cause of Walter’s death.

¶ 21 Dr. Richard Quigg also testified by video deposition. Quigg was a nephrology expert

retained by plaintiff as an expert witness. Quigg believed that Walter had obstructive

jaundice and was at risk for acute renal failure or injury. When Walter came to the

emergency room on March 30, 2009, he was suffering from acute renal failure. Quigg opined

that Walter’s renal failure began on March 26, 2009.

¶ 22 Plaintiff testified regarding her relationship with Walter. After Walter’s diagnosis, the

children did some Internet research of alternative treatments for cancer and found the

Institute. She did not visit the Institute and did not accompany Walter when he was admitted.

¶ 23 Plaintiff rested, and Dr. Jose Arruda testified as an expert witness on behalf of

defendants. Arruda was the chief of nephrology at the University of Illinois in Chicago. He

reviewed Walter’s records from his two hospitalizations, his records from the Institute, and

the depositions of Nemec, Quigg, and Thomas. He opined that Walter’s liver was replaced by

tumors and severely impaired. Arruda further opined that Walter had only one to two months

to live. Arruda opined that Walter’s cause of death was disseminated terminal cancer and that

the kidney dysfunction was a bystander, i.e., he died in renal failure, not from renal failure.

¶ 24 Nemec testified regarding his background in chiropractic medicine. He testified that the

scope of the Institute’s practice was to heal the body, mind, and spirit. Nemec testified that

he did not treat any symptoms, conditions, or diseases; he and the Institute only balance

health. Nemec denied telling the Mankowskis that he treated cancer or that he could cure

Walter’s cancer. He was aware of Walter’s diagnosis, but Nemec’s purpose was only to

balance his health. Nemec testified regarding the services provided to Walter, including

nutritional meals of seed milk and avocado soup; colonic hydrotherapy; lymphatic drainage;

and examinations, which included checking for blockages in the nervous system and

rebalancing those blockages. Nemec also performed chiropractic adjustments on Walter.

¶ 25 Nemec testified that he saw Walter on Monday (March 23, 2009), Wednesday (March

25), and Saturday (March 28); Walter never complained to Nemec about anything, including

experiencing diarrhea. Walter was experiencing a little brain fog from the detoxification

program on Friday, March 27. Nemec denied that David told him about Walter’s

experiencing diarrhea; their focus was on Walter’s getting weaker. Nemec never discouraged

David from taking Walter to the hospital. Nemec opined that he complied with the standard

of care in his treatment of Walter.

¶ 26 Dr. Kenneth Micetich testified as an expert witness on behalf of defendants. Micetich

was an oncologist at Loyola Medical Center. Micetich reviewed Walter’s records from his

two hospitalizations, his records from the Institute, and the depositions of Nemec, Dragon,

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Arruda, and Quigg. Micetich opined that Walter’s life expectancy was 6 to 12 months.

Micetich opined that nothing at the Institute contributed to Walter’s deterioration and that his

worsening health was the natural progression of his cancer, which was severely involved in

his liver.

¶ 27 Following Micetich’s testimony, defendants proceeded with an offer of proof to introduce

their exhibits No. 5 and No. 6. Both exhibits were captioned “Statement of non-medical

non-treatment facility”; exhibit No. 5 reflected David’s signature and exhibit No. 6 reflected

Walter’s signature.

¶ 28 Shelli Carlson, a colon hydrotherapist, testified that she had performed colonic

hydrotherapy on inpatients at the Institute. She did not recall whether she performed the

procedure on Walter. She reviewed her schedule and testified that she would have kept

personal notes, but that they no longer existed.

¶ 29 Dr. John Zrelak testified that he was a chiropractic physician. He reviewed Walter’s

records from his two hospital stays, his records from the Institute, and the depositions of

Nemec, David, Hozman, Dragon, Quigg, and Arruda. He opined that the ingredients in the

Institute’s supplements, including cayenne pepper, ginger root, gingko, and distilled water,

were not harmful to patients. He opined that none of the supplements caused injury to

Walter. He further opined that none of the food substances given to Walter caused him

injury. Zrelak opined that the colonic hydrotherapy did not cause dehydration to Walter.

Zrelak further opined that Nemec acted within the standard of care in treating Walter.

¶ 30 On rebuttal, plaintiffs called Thomas. Thomas was licensed as a physician in Oregon, but

not in Illinois. She was part of an integrated care team, which also included a medical

oncologist, a registered dietitian, a nurse, and a nurse care manager, at Cancer Treatment

Centers of America in Zion. Part of her job was to work with the oncologist and determine

whether any natural supplements, vitamins, or diet was appropriate for a patient, based upon

the patient’s condition. Thomas reviewed Walter’s records from the Institute, which included

copies of the supplement labels, and the depositions of Hozman, David, and Nemec. Thomas

opined that Walter should not have been a candidate for colonic cleansing or any

detoxification program. Thomas opined that the combination of all of the treatments Walter

received from the Institute was a cause of Walter’s dehydration, which ultimately led to his

renal failure.

¶ 31 At this point, defendant objected to Thomas’s ability to give opinions, stating that they

were all speculation and conjecture. Plaintiff responded that Thomas’s opinions were the

basis of Johnson’s testimony in that Johnson relied on Thomas’s opinions to say that Walter

was dehydrated and that the colonics and other treatments caused dehydration. Plaintiff

further asserted that Thomas had the knowledge, experience, and training to assist the fact

finder. The trial court determined that her testimony was relevant, describing it as “a link in

the chain in her opinion, [and] it’s part of someone else’s opinion.” The trial court overruled

the objection and allowed the testimony.

¶ 32 Thomas continued, testifying that in her practice of working with cancer patients she had

never recommended a colonic for them. She reviewed the ingredients in the supplements

from the Institute and noted which ones might have had a harmful effect on Walter, such as

curcumin and glutathione. Thomas opined that the fasting and detoxification program had no

effect on his cancer and could not have prolonged his life.

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¶ 33 The trial court reviewed the exhibits and conducted a jury instructions conference.

Defendants objected to plaintiff’s jury instruction No. 16, which reflected that, if the jury

found in favor of plaintiff on the question of liability, it could not limit her damages

“resulting from this occurrence because any injury resulted from a pre-existing condition

which rendered the Plaintiff more susceptible to injury.” Defense counsel argued that the

instruction was not appropriate, because Walter had a terminal diagnosis and was likely to

die within six to eight months, and the instruction would improperly permit the jury to award

damages based on a much longer life expectancy. The trial court ruled that there were

disparate opinions about what the life expectancy could or might have been, so it gave the

instruction over defendants’ objection.

¶ 34 After plaintiff’s counsel presented her closing argument, defense counsel moved for a

mistrial. Defense counsel argued that plaintiff’s counsel violated the ruling barring her from

making any claim or reference to fraud by defendants. Defense counsel asserted that, during

closing argument, plaintiff’s counsel argued that Nemec operated under the “guise” of a

spiritual leader. Defense counsel argued that the term “guise” was intended to suggest fraud

and deception. The trial court noted that defense counsel failed to object, and therefore it was

not able to address the matter with the jury. The trial court further stated that the tenor of

plaintiff’s argument was directed toward showing a purported breach of the standard of care

and rebutting the defense that treatment was not offered. The trial court denied defendant’s

motion for a mistrial, and thereafter the parties resumed closing arguments.

¶ 35 The trial court instructed the jury, and, after deliberations, the jury found in favor of

plaintiff and against defendants. The jury assessed damages of $2,522,847. The trial court

entered judgment on the jury’s verdict, plus costs.

¶ 36 Defendants filed a posttrial motion, and the trial court conducted a hearing on January 21,

2014. One of the issues concerned the amount of damages awarded. Defendants argued that a

$2.5 million award was excessive because the evidence established that Walter was not likely

to live more than one year. After hearing arguments, the trial court denied the motion. In

doing so, the trial court commented that the verdict did not “shock[ ] the conscience.” The

trial court found that the verdict was not the effect of “passionate prejudice,” and the court

had “the firm conviction that [the verdict] was within the evidence related to the value of the

plaintiffs’ remaining family life which was remarkable, and so it was within the discretion of

the jury to make a fair and reasonable compensation.”

¶ 37 Defendants filed a timely notice of appeal.

¶ 38 II. ANALYSIS

¶ 39 Defendants contend that the trial court’s appointment of Susan as special administrator

was improper and that therefore the judgment should be vacated because it was entered on

Wrongful Death Act claims that were nullities. In the alternative, defendants request a new

trial because of trial court errors, and, also in the alternative, defendants ask this court to

reduce the award of damages.

¶ 40 Defendants brought a motion to dismiss the action pursuant to sections 2-619(a)(1) and

(a)(2) of the Code (735 ILCS 5/2-619(a)(1), (a)(2) (West 2012)). A section 2-619 motion

“admits the legal sufficiency of the complaint, but asserts affirmative matter outside the

complaint that defeats the cause of action.” Kean v. Wal-Mart Stores, Inc., 235 Ill. 2d 351,

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361 (2009). Subsection (a)(1) provides for dismissal when the court lacks subject matter

jurisdiction. 735 ILCS 5/2-619(a)(1) (West 2012). Subsection (a)(2) provides for dismissal

when the plaintiff does not have legal capacity to sue. 735 ILCS 5/2-619(a)(2) (West 2012).

This court reviews de novo the trial court’s ruling. Kean, 235 Ill. 2d at 361. When ruling on a

section 2-619 motion to dismiss, the court must interpret the pleadings and supporting

documents in the light most favorable to the nonmoving party. Van Meter v. Darien Park

District, 207 Ill. 2d 359, 367-68 (2003). On appeal, we “review the trial court’s judgment,

not its rationale,” and we “can affirm for any reason the record supports.” People v. Reed,

361 Ill. App. 3d 995, 1000 (2005).

¶ 41 Subject matter jurisdiction concerns the authority of the court to hear and determine cases

of the general class to which the proceeding in question belongs. Crossroads Ford Truck

Sales, Inc. v. Sterling Truck Corp., 2011 IL 111611, ¶ 27. “Generally speaking, a justiciable

matter is a controversy appropriate for review by the court, in that it is definite and concrete,

as opposed to hypothetical or moot, touching upon the legal relations of parties having

adverse legal interests.” (Internal quotation marks omitted.) In re Luis R., 239 Ill. 2d 295, 301

(2010). The gist of defendants’ argument is that, because a special administrator had not been

appointed when the action was filed, “Susan Mankowski, as Special Administrator” was a

“fictional entity,” much like “Porky Pig,” and, because a fictional entity may not sue or be

sued in Illinois, any action brought by or against such an entity is a legal nullity.

¶ 42 Section 2.1 of the Act provides:

“In the event that the only asset of the deceased estate is a cause of action arising

under this Act, and no petition for letters of office for his or her estate has been filed,

the court, upon motion of any person who would be entitled to a recovery under this

Act, and after such notice to the party’s heirs or legatees as the court directs, and

without opening of an estate, may appoint a special administrator for the deceased

party for the purpose of prosecuting or defending the action.” 740 ILCS 180/2.1

(West 2012).

¶ 43 Section 2.1 allows a “person” who would be entitled to a recovery under the Act to file a

motion requesting the trial court to appoint a special administrator for the deceased party.

The purpose of appointing a special administrator is to enable a prosecution or defense of a

wrongful death action. The statute presupposes that an identifiable, real person exists to

request an appointment. In the present case, plaintiff is that identifiable, real person and is not

a fictional entity.

¶ 44 However, the law is settled that plaintiff could not file a wrongful death suit in her

individual capacity. See Rodgers v. Consolidated R.R. Corp., 136 Ill. App. 3d 191, 193

(1985) (“In Illinois, wrongful death suits must be brought by and in the name of the personal

representative of the deceased. The personal representative possesses the sole right of action

or control over the litigation.”). Defendants argue that, because plaintiff had not yet been

appointed as special administrator, her claims against defendants were nullities. The plain

language of the statute requires that the motion to appoint must be made by “any person who

would be entitled to a recovery under this Act.” 740 ILCS 180/2.1 (West 2012). The record

reflects that no probate estate had been opened; therefore, the only person who could have

moved for the appointment was plaintiff, and she did.

¶ 45 The gravamen of defendants’ argument pertaining to subject matter jurisdiction is

focused on the timing of plaintiff’s appointment as special administrator. Defendants argue

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that “Susan Mankowski, as Special Administrator” did not exist as a legal entity when the

lawsuit was filed and did not come into existence until she was appointed by the trial court

after the two-year period of limitations and the four-year period of repose. In Nagel, 402 Ill.

App. 3d 766, the reviewing court noted that the administrator should be appointed first and

the wrongful death action filed subsequently. Id. at 770 (citing Lindsey v. Special

Administrator of the Estate of Phillips, 219 Ill. App. 3d 372, 377 (1991)). However, the Nagel

court also stated that a failure to follow this procedure was not necessarily fatal to a cause of

action. Id.

¶ 46 The Nagel court cited McMann v. Illinois Midland Coal Co., 149 Ill. App. 427 (1909),

which is instructive as to whether the instant lawsuit is a nullity because plaintiff had not yet

been appointed as special administrator. In McMann, the plaintiff brought a personal injury

suit in his own name. While his lawsuit was pending, the plaintiff died, and then it was

brought to the court’s attention that the plaintiff was a minor and lacked the capacity to sue in

his own name. Id. at 428. The administrator of the plaintiff’s estate sought to be substituted

as the plaintiff, and the defendant objected. The defendant was apparently unaware until then

that the plaintiff was a minor. The trial court substituted the administrator as the plaintiff. Id.

In the present case, defendants claim that they likewise did not know that plaintiff had not, in

fact, been appointed as special administrator.

¶ 47 Defendants here make the same argument that the defendant made in McMann, that “it

was questionable whether any suit was in existence” when the administrator sought to be

substituted as the plaintiff due to the plaintiff’s lack of capacity to sue in his own name. Id.

The McMann court rejected this argument, explaining that the plaintiff’s suit was “not

subject to be abated or dismissed without leave to amend by substituting some person as next

friend.” Id. Once a proper party (the administrator) was substituted, “the suit was not

thereafter liable to be abated or dismissed.” Id. Here too, the result should be the same.

Although plaintiff in her individual capacity could not maintain a wrongful death suit (see

Rodgers, 136 Ill. App. 3d at 193), it was not subject to dismissal; the trial court’s

appointment of plaintiff as special administrator “cured” this procedural defect. See

McMann, 149 Ill. App. at 428.

¶ 48 In support of their argument, defendants rely on Bogseth v. Emanuel, 166 Ill. 2d 507

(1995), Santiago v. E.W. Bliss Co., 2012 IL 111792, and Relf v. Shatayeva, 2013 IL 114925,

all of which can be distinguished. In Bogseth, the plaintiffs listed “John Doe” as a respondent

in discovery to represent someone who they thought might exist and might be proven

culpable; our supreme court held that a suit filed against a fictitious person, “John Doe,” was

a nullity. Bogseth, 166 Ill. 2d at 513-14. In Santiago, the plaintiff intentionally brought a suit

under a fictitious name and later filed an amended complaint in his legal name. The supreme

court allowed the suit to go forward, noting that the purpose of the relation-back provision of

section 2-616(b) of the Code (735 ILCS 5/2-616(b) (West 2010)) was to preserve causes of

action against loss due to technical pleading rules. Santiago, 2012 IL 111792, ¶ 25. In Relf,

the plaintiff filed a personal injury suit against a driver who was deceased when the suit was

filed. Later, the plaintiff’s attorney requested that his legal assistant be appointed as “special

administrator” for the deceased. The supreme court held that the decedent’s son was the

proper party to be appointed as administrator and that the plaintiff was required to substitute

the son as the defendant to preserve her otherwise invalid cause of action. Relf, 2013 IL

114925, ¶ 60. In distinguishing the foregoing cases, we note initially that our supreme court

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has treated differently the modification of a defendant’s capacity and a plaintiff’s capacity.

See Vaughn v. Speaker, 126 Ill. 2d 150 (1988). In Vaughn, our supreme court considered

whether, under section 2-616(d) of the Code, the second complaint naming the executors of

the decedent’s estate as the defendants related back, for purposes of the statute of limitations,

to the initial complaint, which named the decedent as the defendant. Id. at 159-60. Before

considering section 2-616(d), the Vaughn court explained that the second complaint was

itself untimely, as it was filed after the limitations period for the action had expired, no

statutory provision extended the limitations period, and the substitution of the executors was

not the correction of a misnomer. Id. at 156-57. Furthermore, contrary to Bogseth and

Santiago, plaintiff is a real person, and she sued in her real name; the trial court later merely

allowed her to proceed in her capacity as special administrator. Contrary to Relf, the proper

plaintiff filed suit against the proper defendants; thus, Relf is inapplicable.

¶ 49 Accordingly, because plaintiff is an identifiable, real person, and not a fictional entity, the

trial court could appoint plaintiff as special administrator, the lawsuit was not a nullity, and

the court had subject matter jurisdiction. The trial court properly denied defendants’ section

2-619 motion to dismiss.

¶ 50 Defendants next take issue with the trial court’s decision to appoint plaintiff as special

administrator. Defendants argue that the appointment should not have related back to when

the lawsuit was filed. In support of their argument, defendants argue that there is no basis for

the relation-back doctrine because (1) the action was void as a nullity when the special

administrator was appointed; (2) there was no valid plaintiff when the administrator was

appointed; (3) no amended complaint was ever filed that could have related back; (4) when

the special administrator was appointed, there was nothing to which anything could relate

back, since everything before then was a nullity; and (5) the appointment of the special

administrator came after the periods of limitations and repose.

¶ 51 We have already rejected defendants’ first two arguments in our discussion of their

motion to dismiss. We summarily reject defendants’ third argument, as plaintiff was not

required to file an amended complaint after her appointment as special administrator. See

Nagel, 402 Ill. App. 3d at 772. Plaintiff’s appointment cured the only defect, which was not

even apparent on the face of the complaint. There was nothing to amend. We also reject

defendants’ fourth argument, since it is based entirely upon defendants’ previously rejected

argument that “everything before [the appointment] was a total nullity.”

¶ 52 That leaves us with the propriety of the trial court’s appointment of plaintiff as special

administrator and, if it was proper, whether the appointment related back to the time of the

original filing. Under the Act, the “action shall be brought by and in the names of the

personal representatives of such deceased person, and, except as otherwise hereinafter

provided, the amount recovered in every such action shall be for the exclusive benefit of the

surviving spouse and next of kin of such deceased person.” 740 ILCS 180/2 (West 2012).

Plaintiff, as surviving spouse and administrator, is the only party by whom and in whose

name this suit could be brought. She, in that capacity, is the sole plaintiff, and the only proper

plaintiff, in this cause of action.

¶ 53 Defendants take issue not so much with plaintiff’s being appointed as special

administrator but, rather, with the propriety of the trial court’s decision given the timeliness

of the request. Walter died on April 7, 2009, and plaintiff’s original complaint was filed on

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March 25, 2011, clearly within the two-year limitations period. However, plaintiff did not

file her request to be appointed as special administrator until September 10, 2013.

¶ 54 Our supreme court resolved this issue in Boatmen’s National Bank of Belleville v. Direct

Lines, Inc., 167 Ill. 2d 88 (1995). In Boatmen’s, the decedent, Lynn Tartt, died on November

22, 1986. On May 9, 1988, the decedent’s father, as special administrator of the decedent’s

estate, filed a complaint under the Act. On October 26, 1988, the defendants moved to

dismiss the third amended complaint after discovering that the decedent was married at the

time of her death. Id. at 90-91. Finally, on December 19, 1991, the estate filed a ninth

amended complaint that was brought solely on behalf of the decedent’s husband. The cause

eventually proceeded to trial, and the estate and the defendants appealed. Id. at 96-97. On

appeal, the supreme court considered whether the ninth amended complaint, which was filed

long after the limitations period had passed and was filed by an individual not named as a

party in the original complaint, nevertheless related back to the timely filing of the original

complaint. Id. at 100. In determining that the ninth amended complaint related back to the

original complaint, the supreme court reviewed section 2-616 of the Code (Ill. Rev. Stat.

1985, ch. 110, ¶ 2-616(b) (now 735 ILCS 5/2-616(b) (West 2012))) and reasoned that the

original complaint informed the defendants of the nature of the underlying cause of action

and the basis upon which liability was predicated; that complaint put defendants on notice of

the class of beneficiaries who could recover under the Act; the amendment did not change

the nature of the suit; and the amended complaint grew out of the same transaction or

occurrence set out in the original complaint.

¶ 55 Section 2-616 of the Code provides, in relevant part:

“The cause of action *** set up in any amended pleading shall not be barred by lapse

of time under any statute *** prescribing or limiting the time within which an action

may be brought or right asserted, if the time prescribed or limited had not expired

when the original pleading was filed, and if it shall appear from the original and

amended pleadings that the cause of action asserted *** in the amended pleading

grew out of the same transaction or occurrence set up in the original pleading, even

though the original pleading was defective in that it failed to allege the performance

of some act or the existence of some fact or some other matter which is a necessary

condition precedent to the right of recovery ***, if the condition precedent has in fact

been performed, and for the purpose of preserving the cause of action, *** set up in

the amended pleading, and for that purpose only, an amendment to any pleading shall

be held to relate back to the date of the filing of the original pleading so amended.”

735 ILCS 5/2-616(b) (West 2012).

¶ 56 In the present case, based on our review of the record, section 2-616(b) of the Code, and

the relevant case law, we reach a result similar to Boatmen’s. Plaintiff’s original complaint,

filed on March 25, 2011, informed defendants of the nature of the underlying cause of action

and the basis upon which liability was predicated (negligence); it put defendants on notice of

the class of beneficiaries who could recover under the Act (plaintiff and her children); the

amendment, i.e., the appointment, did not change the nature of the suit; and the amended

complaint grew out of the same transaction or occurrence set out in the original complaint.

Accordingly, we conclude that the amended complaint, reflecting plaintiff’s capacity as

special administrator as ordered by the trial court, related back to the filing of the original

complaint.

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¶ 57 We turn next to defendants’ alternative request for a new trial. Defendants challenge

three of the trial court’s rulings on the motions in limine; one ruling pertaining to the

cross-examination of Quigg; and one ruling pertaining to a jury instruction. All of these

rulings are reviewed for an abuse of discretion. See Calloway v. Bovis Lend Lease, Inc., 2013

IL App (1st) 112746, ¶ 126 (stating that a ruling upon a motion in limine rests in the sound

discretion of the trial court and will not be reversed absent an abuse of discretion (citing

In re Leona W., 228 Ill. 2d 439, 460 (2008))); Leonardi v. Loyola University of Chicago, 168

Ill. 2d 83, 106 (1995) (stating that the determination of the scope and extent of

cross-examination of an expert witness rests in the sound discretion of the trial court and will

not be reversed absent an abuse of discretion); Schultz v. Northeast Illinois Regional

Commuter R.R. Corp., 201 Ill. 2d 260, 273-74 (2002) (stating that a trial court has discretion

to determine which instructions to give the jury and that determination will not be disturbed

absent an abuse of that discretion).

¶ 58 With respect to all but the challenge to Quigg’s cross-examination, we find no abuse of

the trial court’s discretion. With respect to the challenge to the cross-examination, we

consider it forfeited for violating Illinois Supreme Court Rule 341(h)(7) (eff. Feb. 6, 2013).

In providing citations to the record to elucidate Quigg’s testimony, the objections, and the

court’s ruling, defendants set forth in a footnote that “[t]he transcript from the evidence

deposition of Dr. Quigg reflecting the court’s ruling on this issue is contained in Volume V

of the record” and leave it to this court to identify the precise pages they rely upon. This is

not helpful and violates Rule 341(h)(7), which requires “reference *** to the pages of the

record *** where evidence may be found.” Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013).

Counsel is advised to provide more specific citations in the future.

¶ 59 Plaintiff’s motions in limine 2 and 3 sought to bar the admission of the statement signed

by Walter and David when Walter entered the Institute. As reflected above, the trial court

conducted a hearing on the motions; conducted a hearing on defendants’ motion to

reconsider; and heard an offer of proof during trial. The trial court found that the statement

signed by David would be relevant only if his breach-of-contract claim (former count III)

remained pending. Because count III was dismissed, the statement was not relevant. Upon

reconsideration, the trial court determined that the statement had no relevance if it was not

asserted to be a release. The trial court further balanced the probative value of the statement

and its prejudicial effect and determined that it was too prejudicial to be admitted.

Defendants have not presented any meaningful reason for this court to find an abuse of the

trial court’s discretion. See DiCosolo v. Janssen Pharmaceuticals, Inc., 2011 IL App (1st)

093562, ¶ 41 (stating that the party seeking reversal bears the burden of establishing

prejudice and showing that the trial court’s ruling materially affected the outcome of the

trial).

¶ 60 Similarly, the trial court’s rulings regarding defendants’ motion in limine barring any

claim or reference to fraud by the Institute were not abuses of its discretion. The trial court

noted that defendants failed to object when the purported violations occurred, which would

have allowed the trial court to rule on the objection and perhaps sustain it and strike the

testimony. Despite that, the trial court heard arguments on defendants’ motion for a mistrial

and found that David’s testimony did not imply any fraud. The trial court also found that,

during closing argument, the tenor of plaintiff’s argument was directed toward showing a

purported breach of the standard of care and rebutting the defense that treatment was not

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offered. We note that in his closing argument defense counsel used the same phrase that

plaintiff’s counsel had used, stating, “You heard, more importantly, that he operates under

the guise of a spiritual leader.” Our review of the proceedings leads us to conclude that no

abuse of discretion occurred. See McDonnell v. McPartlin, 192 Ill. 2d 505, 534 (2000)

(stating that a trial court is vested with broad discretion to determine the propriety of

declaring a mistrial).

¶ 61 With respect to Thomas’s testimony, we review the trial court’s decision to admit expert

opinion for an abuse of discretion. See Van Gelderen v. Hokin, 2011 IL App (1st) 093152,

¶ 36. Defendants raise the same objection they raised in the trial court, that is, the testimony

was speculative and conjectural. The trial court heard defendants’ argument and determined

that Thomas’s testimony was relevant. The trial court described her testimony as “a link in

the chain in her opinion, [and] it’s part of someone else’s opinion.” Defendants have

provided this court with no reason to find an abuse of the trial court’s discretion.

¶ 62 With respect to defendants’ argument pertaining to jury instruction No. 16, the trial court

had discretion to determine which instructions to give the jury, and that determination will

not be disturbed absent an abuse of that discretion. Schultz, 201 Ill. 2d at 273-74. Illinois

Supreme Court Rule 239(a) (eff. Jan. 1, 1999) requires that “[w]henever Illinois Pattern Jury

Instructions (IPI), Civil, contains an instruction applicable in a civil case, giving due

consideration to the facts and the prevailing law, and the court determines that the jury

should be instructed on the subject, the IPI instruction shall be used, unless the court

determines that it does not accurately state the law.” A trial court does not abuse its

discretion regarding jury instructions if the instructions in their entirety “fairly, fully, and

comprehensively apprise[ ] the jury of the relevant legal principles.” Schultz, 201 Ill. 2d at

273-74. The trial court ruled that there were disparate opinions about what Walter’s life

expectancy could or might have been, so it gave the instruction over defendants’ objection.

Defendants acknowledge that the instruction was a standard IPI instruction but argue,

without any supporting authority, that “it was inappropriate for and did not fit the facts or

claims involved in this case.” Without more, we find no abuse of the trial court’s discretion.

¶ 63 Additionally, we note that there was no cumulative error. A new trial is necessary when

the cumulative effect of trial errors so deprives a party of a fair trial that the verdict might

have been affected. Mueller v. Phar-Mor, Inc., 336 Ill. App. 3d 659, 670 (2000). As we find

no error, we necessarily find no cumulative error. People v. Phillips, 392 Ill. App. 3d 243,

276 (2009).

¶ 64 The final issue is defendants’ alternative request to reduce the damages award.

Defendants argue that the award was grossly excessive. Defendants assert that “[i]t is

reasonable to believe that the excessive verdict *** was the result of the jury’s passions and

prejudice.” We reject defendants’ request to reduce the damages award.

¶ 65 The Act creates a cause of action for the survivors of a decedent to recover damages from

the party that negligently or wrongfully caused the decedent’s death. 740 ILCS 180/1 (West

2012). The damages are limited to the survivors’ “grief, sorrow, and mental suffering” that

result from the decedent’s death. 740 ILCS 180/2 (West 2012); Smith v. Mercy Hospital &

Medical Center, 203 Ill. App. 3d 465, 481-82 (1990) (holding that the legislature clearly

intended for survivors to be compensated for their loss resulting from the death of the

decedent); Cooper v. Chicago Transit Authority, 153 Ill. App. 3d 511, 517-18 (1987) (holding

that the Act allows for recovery of only pecuniary losses). The Illinois Appellate Court for

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the Third District has held that adult children may recover pecuniary damages under the Act

for the loss of a parent’s “guidance, advice, love and affection.” (Internal quotation marks

omitted.) In re Estate of Keeling, 133 Ill. App. 3d 226, 228 (1985). This court has followed

that holding and allows adult children to recover pecuniary losses for the death of parents.

Cooper, 153 Ill. App. 3d at 518.

¶ 66 Defendants presented this very argument to the trial court at the hearing on their posttrial

motion. In denying their motion, the trial court specifically commented that the verdict did

not “shock[ ] the conscience.” The trial court found that the verdict was not the effect of

“passionate prejudice” and further stated that it had “the firm conviction that [the verdict]

was within the evidence related to the value of the plaintiffs’ remaining family life which

was remarkable, and so it was within the discretion of the jury to make a fair and reasonable

compensation.” Defendants make no reasoned attempt to challenge the trial court’s reasoning

or decision, and we decline now to alter it.

¶ 67 III. CONCLUSION

¶ 68 For the reasons stated, we affirm the judgment of the circuit court of Lake County.

¶ 69 Affirmed.

¶ 70 JUSTICE ZENOFF, specially concurring.

¶ 71 I agree that plaintiff’s complaint was valid despite the fact that she was appointed as

special administrator only after the limitations period had expired. I write separately, though,

because I would reach that holding differently.

¶ 72 In my view, the authority that best supports this result is Pavlov v. Konwall, 113 Ill. App.

3d 576 (1983). There, the decedent died on March 5, 1978, and the plaintiff filed his original

complaint, purportedly as the special administrator of the decedent’s estate, on March 3,

1980. Id. at 577. He was appointed as administrator the same day, but the appointment was

invalid because it was not made on the motion of a person entitled to recover under the Act.

Id. His complaint was dismissed, and an amended complaint was stricken. Id. He was not

validly appointed until January 26, 1981, and thereafter he filed a second amended

complaint. Id. The defendant moved to dismiss, arguing that the valid appointment “was

beyond the two-year statute of limitations applicable to wrongful death actions, and therefore

could not relate back to the original complaint since the lack of a proper party plaintiff made

that filing a complete nullity.” Id. The First District rejected that argument:

“[W]e believe that in the instant case the second amended complaint relates back to

the time of the filing of the original complaint. Both pleadings make substantially the

same allegations and[ ] the cause of action asserted in the amended and original

pleadings arose out of the same occurrence or transaction. In both pleadings the estate

of decedent has been named as the interested party and it has been clear from the start

that [the plaintiff] intended to bring the action as administrator of that estate. That

[the plaintiff] was not properly named administrator on the motion of the decedent’s

heirs until after the limitations period had run is a technical consideration which, in

light of section 46 [(the predecessor to section 2-616(b) of the Code)], should not

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prevent the cause from being decided on its merits in furtherance of justice.”

Id. at 579.

¶ 73 The only distinction here is that, after her appointment, plaintiff did not file an amended

complaint. However, the Nagel court held that requiring such an amended complaint “would

elevate form over substance.” Nagel, 402 Ill. App. 3d at 771. Indeed, the court noted that, in

Pavlov, the second amended complaint was necessary only “because the court struck [the

plaintiff’s first amended] complaint before the plaintiff was properly appointed as the special

administrator of the decedent’s estate, leaving no complaint on file.” Id. The court continued:

“Our cases make clear that the appointment of an administrator itself relates back to

the time of the original pleading. See [citation]; Pavlov, 113 Ill. App. 3d at 577 ***

(answering in the affirmative a certified question that asked whether the ‘ “proper

appointment of an administrator” ’ relates back to the time of the original complaint).

Thus, the order appointing the plaintiff as the administrator of [the decedent’s] estate

related back to the time when he filed his original complaint. This cured the only

defect in the complaint, without the need to amend anything on the face of the

complaint. To require an amended complaint under these circumstances would be at

odds with the policy embodied in the relation-back statute and in the many cases that

have addressed the issue.” (Emphasis in original.) Id. at 772.

¶ 74 Defendants assert that Pavlov was “questioned” by the supreme court in Vaughn. This,

however, is simply untrue. Indeed, in Vaughn, the supreme court merely “express[ed] no

opinion” on the holding in Pavlov. Vaughn, 126 Ill. 2d at 160. Thus, defendants’ assertion

strikes me as clearly inaccurate.

¶ 75 This court has previously approved of Pavlov (Jablonski, 287 Ill. App. 3d at 756), and

defendants offer no compelling reason to depart from it. Thus, on this basis, I agree that

plaintiff’s complaint was valid.

¶ 76 JUSTICE McLAREN, specially concurring.

¶ 77 I specially concur because I believe that both of the foregoing analyses are valid

rationes decidendi. I therefore concur in both opinions.

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