Wiker v. Pieprzyca-Berkes
Case Date: 06/20/2000
Court: 1st District Appellate
Docket No: 1-99-0045
|
SECOND DIVISION JUNE 20, 20001-99-0045
PRESIDING JUSTICE COUSINS delivered the opinion of the court: The plaintiff brought this tort action seeking compensationfor injuries that she allegedly suffered as a result of anautomobile collision. The plaintiff rejected an arbitrationaward and went to trial. At trial, the court denied theplaintiff's motion for a directed verdict on the issue ofliability. The jury ruled in favor of the defendant. Theplaintiff filed a motion for judgment notwithstanding theverdict, or in the alternative a new trial. The trial courtdenied the motion. The plaintiff now appeals, arguing that: (1) the evidence sooverwhelmingly favored her case that it was error for the trialcourt not to grant her judgment notwithstanding the verdict; (2)alternatively, the trial court should have ordered a new trialbecause the jury's verdict was against the manifest weight of theevidence; (3) evidence of injuries sustained by the plaintiff ina prior auto accident should not have been admitted without ashowing by the defendant that those injuries could be the causeof her current maladies; (4) the trial court erred in barringadmission of certain medical bills that the plaintiff introducedlate; (5) she is entitled to a new trial because the defendantdid not disclose in discovery a surveillance video; (6) the trialcourt erred in sustaining two objections to plaintiff's closingargument; and (7) the trial court erred in requiring the jurorsto deliberate further when they sent the judge a note indicatingthat they were deadlocked. BACKGROUND On the afternoon of March 27, 1991, Judith Wiker, theplaintiff, was driving her sport utility vehicle (SUV) onLakeshore Drive in Chicago. When she was stopped in traffic, thecar of Judith Pieprzyca-Berkes, the defendant, collided with therear of the plaintiff's SUV. The accident caused no significantdamage to the SUV. The grill of the defendant's car popped outand one headlight was broken. The plaintiff testified at trialthat in the collision her head was thrown back and hit theheadrest. Since the accident the plaintiff has seen a number of healthcare providers. Immediately after the accident, she claims, shebegan to have head, neck and back problems. The next day she sawa chiropractor, Dr. William Schenck, complaining of low backpain, neck pain, a headache, disorientation, a choking sensationand difficulty swallowing. Although she said that these problemsstarted the previous day, she also indicated that she had hadepisodes of neck and hip pain after a previous accident threeyears before. Dr. Schenck noted that the plaintiff's thyroidgland was somewhat swollen. She continued with Dr. Schenck for treatment, seeing himabout 20 times before he moved to Vermont. He recommended anutritional supplement for the thyroid condition and other typesof therapy for the back and neck pain. After Dr. Schenck left,his partnerm, Dr. Luke Maes, took over treatment of theplaintiff. The plaintiff became dissatisfied with Dr. Maes'treatment and went to another chiropractor, Dr. Frank Fiala, whostarted her on a course of physical therapy. Dr. Fiala referredher to an orthopedic surgeon, Dr. Michael Zindrick. Dr. Zindricksaw the plaintiff once. His testing revealed only minor cervicaland lumbar sprain, as well as some degenerative changes in theback which he thought predated the auto accident. Dr. Fiala told the plaintiff that he had given her all thetreatment that he could for her pain. In early 1993, theplaintiff went to see Dr. Grant Seivertsen, an endocrinologist,about her thyroid condition. Dr. Seivertsen diagnosed her ashaving Hashimoto's hypothyroidism, an autoimmune disorder, but hedid not think it had anything to do with the auto accident. Dr. Maria Hofmaier, another chiropractor, saw the plaintiffonce and referred her to Dr. Henry Echiverri. Dr. Echiverri wasa neurologist who saw the plaintiff twice. His opinion was thatthe plaintiff had cervical strain-sprain, a herniated disk andpost-concussion injury. The plaintiff went to see two out-of-state doctors whom sheknew had done work associating hypothyroidism with neck trauma.First she went to a doctor in Boston named Rothfield, and then toDr. Keith Sehnert in Minnesota. At the time of trial, theplaintiff was seeing a chiropractor, Dr. Donald Backstrom, on aregular basis. In answer to questions asked on cross-examination, he stated that he had not yet been paid but wouldexpect to be paid if the plaintiff won. Dr. Sehnert testified at trial that in his opinion theplaintiff's thyroid condition was a result of the automobileaccident. However, Dr. Berlinger, an expert witness for thedefendant, testified that the type of injury sustained by theplaintiff could not cause hypothyroidism. The plaintiff requested a directed verdict on the issue ofliability, but the trial court denied the motion. The jury foundfor the defendant. The plaintiff moved for judgmentnotwithstanding the verdict or in the alternative a new trial. The trial court denied this motion, and the plaintiff nowappeals. ANALYSIS The plaintiff first contends that the trial court erred indenying her motion for judgment notwithstanding the verdict or,in the alternative, a new trial. A motion for judgmentnotwithstanding the verdict should only be granted when all theevidence, viewed in the light most favorable to the nonmovingparty, so overwhelmingly favors the movant that no contraryverdict could ever stand based on that evidence. Lake v.Bertrand, 215 Ill. App. 3d 578, 580, 574 N.E.2d 1372, 1373(1991). A motion for a new trial should only be granted when theverdict is against the manifest weight of the evidence. Moran v.Erickson, 297 Ill. App. 3d 342, 352, 697 N.E.2d 780, 787 (1998). A court's ruling on a motion for a new trial will only bedisturbed if it constitutes an abuse of discretion. Moran, 297Ill. App. 3d at 353, 697 N.E.2d at 787. In this case, the plaintiff argues that the defendant'stestimony on cross-examination established her negligence as amatter of law. "Q. As I understand your testimony, you were notlooking directly ahead at Judith's car, correct, whentraffic started to move? A. Correct. Q. Because had you been looking forward, you wouldhave seen her car and not hit it, correct? A. Correct." The plaintiff notes that a driver has a duty to maintain aproper lookout for traffic ahead. Glenn v. Mosley, 39 Ill. App.3d 172, 176, 350 N.E.2d 219, 222 (1976). And while a rear-endcollision does not establish per se a defendant's negligence, itis certainly very strong evidence of negligence. Glenn, 39 Ill.App. 3d at 176, 350 N.E.2d at 222. In order to establish liability, however, the plaintiff wasrequired to do more than demonstrate that the defendant wasnegligent. See Moran, 297 Ill. App. 3d 342, 696 N.E.2d 780(verdict for defendant sustained even though defendant admittednegligence). A plaintiff in a negligence action must show thebreach of a duty of care, proximate causation and compensabledamages. Ogle v. Fuiten, 112 Ill. App. 3d 1048, 1052, 445 N.E.2d1344, 1347 (1983). In this case, there was evidence to supportthe jury's verdict on the basis of lack of causation. First, there was ample evidence that the automobile accidentdid not cause the plaintiff's thyroid problems. Dr. Berlinger,the defense's expert witness in endocrinology, testified that itwas impossible for the type of injury that the plaintiffsustained to cause hypothyroidism. Moreover, the plaintiff'sendocrinology expert admitted on cross-examination that hisassertion that a blow to the neck could cause Hashimoto'sthyroiditis was only a hypothesis and would take many years toprove. Second, there was evidence that the accident did not causethe problems with the plaintiff's spine. There was no damage tothe plaintiff's vehicle and only superficial damage to thedefendant's vehicle. The plaintiff did not complain of injury atthe time of the accident and did not go to a hospital emergencyroom. Admittedly, the plaintiff had several medical providerstestify that, in their opinion, the accident had injured theplaintiff's spine. But Dr. Zindrick, the orthopedic surgeon whoexamined the plaintiff, said in his evidence deposition that hisexamination revealed no significant spinal problems except fornormal degenerative changes associated with aging. A verdict infavor of the defendant can be sustained where the defendantsuccessfully discredits the testimony of the plaintiff'switnesses. Moran, 297 Ill. App. 3d at 353, 697 N.E.2d at 787. II The plaintiff next contends that the trial court erred inadmitting evidence that the plaintiff had sustained some injuriesto her back in a prior automobile accident. The plaintiff hadmoved in limine to exclude such evidence. Before allowingevidence of a prior accident, the plaintiff argues, the trialcourt should have required the defendant to provide competentevidence that the prior accident could have been the cause of theplaintiff's current complaints. We agree. For a period this court applied the "same part of the bodyrule" to determine the admissibility of evidence of priorinjuries in personal injury cases. Under the "same part of thebody rule," evidence of a prior injury was admissible as long asthe injury was to the same part of the body as the injury atissue in the litigation. See B. McDonald, "Same Part of the BodyRule" Revised: Admissibility of Prior Injuries in PI Cases, 87Ill. B.J. 414 (1999). The fifth district refined the approach toward such evidencein Brown v. Baker, 284 Ill. App. 3d 401, 672 N.E.2d 69 (1996). The Brown court noted that under the "same part of the body rule"evidence of a minor injury that had been healed and symptom freefor decades could be admitted without any further showing ofrelevance or causation. "Without the benefit of testimonyregarding causation in these instances, jury members are invitedto speculate on a nexus between the past accident and the presentinjury." Brown, 284 Ill. App. 3d at 405, 672 N.E.2d at 71.Accordingly, the Brown court held that "[i]f a prior injury haslong since healed and has shown no recurring symptoms, adefendant should not be permitted to introduce evidence of theprior injury without establishing causation." Brown, 284 Ill.App. 3d at 405, 672 N.E.2d at 71. This court adopted the Brown approach in Cancio v. White,297 Ill. App. 3d 422, 697 N.E.2d 749 (1998). Cancio extended thereasoning of Brown to preexisting conditions as well as to prioraccidents or injuries. Cancio, 297 Ill. App. 3d at 430, 672N.E.2d at 754. We ruled that, "absent competent and relevantevidence of a causal connection between the preexisting conditionand the injury complained of, evidence of the preexistingcondition is inadmissible." Cancio, 297 Ill. App. 3d at 430, 672N.E.2d at 754. In Lagestee v. Days Inn Management Co., 303 Ill. App. 3d935, 709 N.E.2d 270 (1999), this court again applied the Brownrule. In Lagestee, the plaintiff alleged that his back wasinjured when he slipped and fell into a pole projecting from afence. The defendant attempted to introduce evidence suggestingseveral alternative causes of the plaintiff's injuries. Thedefendant presented evidence that the plaintiff: (1) haddegenerative disk disease prior to the fall; (2) had sustained aninjury from a previous auto accident three years before; (3) hadsustained an injury at work four years before the accident atissue; (4) had sustained an unspecified injury from football inhigh school 15 years before the accident; and (5) smokedcigarettes. Lagestee held that the trial court erred in allowingthe defendant to present evidence concerning the prior injuriesand the smoking, because the defendant did not present anyevidence of a causal connection. "[T]he defendant is required topresent medical or other competent evidence of a causal orrelevancy connection between plaintiff's prior injury, prioraccident, or preexisting condition and the injury at issue as aprerequisite of admissibility." Lagestee, 303 Ill. App. 3d at946-47, 709 N.E.2d at 279. The defendant reads the phrase "causal or relevancyconnection" to mean that she has the option of either showingthat the prior accident was relevant or that there was a causalconnection. This reading of Lagestee does not comport with basicprinciples of evidence law. All evidence must be relevant to beadmissible. M. Graham, Cleary & Graham's Handbook of IllinoisEvidence |
||||