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No. 2--03--0464

JUSTICE GROMETER delivered the opinion of the court:

Plaintiff, Connie Hess, filed a complaint against defendant, Michelle Espy, for injuries sheallegedly sustained when defendant's vehicle rear-ended plaintiff's vehicle. Following a trial in thecircuit court of Winnebago County, the jury returned a verdict in plaintiff's favor and awarded herdamages in excess of $190,000. The trial court denied defendant's posttrial motion. On appeal,defendant asserts that the jury's verdict as to liability was against the manifest weight of the evidence. Alternatively, defendant challenges the jury's award of damages. In the unpublished portion of thisdecision, we reject defendant's former argument. In the published portion of this decision, we holdthat the trial court erred in (1) instructing the jury that the aggravation of a preexisting conditionconstitutes a separate element of damages and (2) tendering to the jury an itemized verdict formlisting the aggravation of a preexisting condition as a separate element of damages. Accordingly,we affirm in part, vacate in part, and remand this cause for further proceedings.

I. BACKGROUND

The record indicates that on the morning of November 10, 1998, plaintiff was traveling eastin the innermost lane of Broadway in Rockford. Defendant was in her vehicle traveling directlybehind plaintiff's vehicle. There was a delivery van in front of plaintiff's vehicle and anotherautomobile in front of the delivery van.

At the intersection of Broadway and Eastmoreland, the vehicles stopped at a traffic light. When the traffic signal turned green, the vehicles proceeded through the intersection. The car infront of the van slowed down to make a left turn. According to defendant, a short time later, thedelivery van "dipped like he slammed on his brakes." Defendant then observed plaintiff apply herbrakes. Defendant slammed on her brakes but was unable to avoid a collision with plaintiff'svehicle. Defendant described the collision as a "bump" and estimated that her speed just prior to thecollision was between 5 and 10 miles per hour. Defendant testified that her airbag did not deployand that, although she did not observe any damage to either her vehicle or plaintiff's vehicle, therewas a "paint transfer" between the two automobiles. Following the collision, defendant exited hervehicle and asked plaintiff if she was okay. Plaintiff responded that her back hurt. Defendant called9-1-1, and plaintiff was transported to a hospital by ambulance.

Plaintiff testified that as a result of the impact, a purse, cellular telephone, and bagged lunchthat were on the passenger seat of her car were thrown to the floor. In addition, plaintiff stated thatat the moment of impact, her body "went suddenly forward and came back against the seat," her neck"snapp[ed] back," and her stomach hit the steering wheel, causing a bruise. After the accident,plaintiff experienced neck discomfort and a burning sensation between her shoulder blades. At theemergency room, plaintiff underwent X rays of the cervical area.

Plaintiff recalled that between 1993 and 1996, she suffered from stiffness of the neck due toa fall. In July 1996, plaintiff awoke with an extremely stiff neck. Plaintiff's physician, Lydia Savic,recommended heat and muscle relaxers to alleviate the stiffness. These treatments did not resolvethe discomfort, and Dr. Savic referred plaintiff to Dr. Buckingham. Between July 1996 andDecember 1996, Dr. Buckingham treated plaintiff with heat, muscle relaxers, and epidurals. Eventually, Dr. Buckingham recommended surgery, which plaintiff underwent on December 27,1996. The surgery resolved her neck problem, and in February 1997, Dr. Buckingham releasedplaintiff to Dr. Savic's care.

Two days after the accident, plaintiff visited Dr. Savic's office and was referred for an MRIand prescribed pain medication. Eventually, Dr. Savic referred plaintiff to Dr. Manno, with whomshe began treatment on or about November 23, 1998. Despite undergoing physical therapy andtraction, plaintiff continued to experience pain and was taking Vicodin. In February 1999, plaintiffunderwent a surgical procedure performed by Dr. Manno. Plaintiff recalled that since the surgery,the right side of her neck had improved greatly, but the left side of her neck had not. Subsequently,plaintiff returned to the care of Dr. Savic.

Plaintiff testified that she was given an off-work slip and that she did not work from the dateof the accident until April 7, 2000, due to the pain she was experiencing. Prior to the accident,plaintiff worked at Rockford Clinic. When she returned to work in April 2000, however, plaintiffmanaged a sandwich shop. She eventually returned to the medical field in October 2001, and, at thetime of trial, worked as a certified medical assistant in the field of obstetrics and gynecology. Plaintiff testified that she is no longer able to perform certain duties due to neck pain. Plaintiffcalculated the amount of wages she lost during the time she was out of work as $25,704.68.

Plaintiff testified that despite the surgery, she has trouble turning her head to the left. Inaddition, plaintiff testified that she can no longer crochet, do ceramics, play video games, or carryher laundry or groceries. She also stated that she is limited in the time she can spend doing certainactivities, such as typing, vacuuming, cleaning the bathroom, mopping floors, and changing sheets. Moreover, she does not sleep well at night. Plaintiff testified that her vehicle sustained damage tothe bumper. Admitted into evidence was the repair bill, totaling $939.28.

[The following material is nonpublishable under Supreme Court Rule 23.]

[The preceding material is nonpublishable under Supreme Court Rule 23.]

Following deliberations, the jury returned a verdict in plaintiff's favor. The jury awardeddamages in the amount of $190,939.28. The jury itemized the damages as follows:

Aggravation of a Preexisting Condition $ 75,000.00

Disfigurement $ 500.00

Future Pain and Suffering $ 45,313.19

Medical Care and Treatment $ 43,482.23

Lost Earnings $ 25,704.58

Car Repair $ 939.28

TOTAL $190,939.28.

Defendant filed a posttrial motion seeking judgment notwithstanding the verdict, a new trial,or a remittitur. The trial court denied defendant's motion, and this appeal ensued.

II. ANALYSIS

As a preliminary matter, we point out that defendant's brief violates Supreme Court Rule341(e)(7) (Official Reports Advance Sheet No. 21 (October 17, 2001), R. 341(e)(7), eff. October 1,2001). Specifically, Rule 341(e)(7) requires the appellant's brief to include "[a]rgument, which shallcontain the contentions of the appellant and the reasons therefor, with citation of the authorities andthe pages of the record relied on." (Emphasis added.) The majority of the argument section ofdefendant's opening brief does not cite to the pages of the record relied on. We elect not to strikedefendant's brief, because the statement of facts contains sufficient references to the record onappeal. Nevertheless, we remind counsel that our supreme court rules are not mere technicalities orsuggestions. Tires 'N Tracks, Inc. v. Dominic Fiordirosa Construction Co., 331 Ill. App. 3d 87, 95(2002). We admonish counsel to adhere to the rules in the future.

A. Jury Verdict

The material in this section is nonpublishable under Supreme Court Rule 23 (166 Ill. 2d R.23).

[The following material is nonpublishable under Supreme Court Rule 23.]

[The preceding material is nonpublishable under Supreme Court Rule 23.]

B. New Trial or Remittitur

Defendant requests a new trial or a remittitur. In support of this claim, defendant argues that(1) the trial court erred in issuing instructions to the jury that allowed it to award "duplicative oroverlapping damages"; (2) the evidence was insufficient to substantiate any claim for the aggravationof a preexisting condition; (3) the evidence was insufficient to substantiate any claim for loss ofwages; (4) the evidence was insufficient to substantiate any claim for future pain and suffering; (5)the trial court erred in permitting the jury to consult a mortality table in fixing damages; and (6) theevidence was insufficient to substantiate a claim for medical care and treatment. We find the firstissue dispositive.

1. Duplicative or Overlapping Damages

Defendant alleges that the trial court committed reversible error when, over defendant'sobjection, it granted plaintiff's request to include, as a separate element of damages, the aggravationof a preexisting condition. According to defendant, this resulted in duplicative or overlappingdamages. We agree and hold that while a jury may consider the aggravation of a preexistingcondition in reaching its verdict, the aggravation of a preexisting condition is not a separate elementof damages. Accordingly, it is improper for the trial court to instruct the jury to separately award forthe aggravation of a preexisting condition and to provide the jury an itemized verdict form listingthe aggravation of a preexisting condition as a separate element of damages. Thus, we remand thiscause for a new trial on damages.

Our analysis begins with an examination of the instructions tendered to the jury in the presentcase. At the jury-instruction conference, plaintiff tendered Illinois Pattern Jury Instructions, Civil,No. 30.01 (2000) (hereinafter IPI Civil (2000) No. 30.01). IPI Civil (2000) No. 30.01 provides:

"If you decide for the plaintiff on the question of liability, you must then fix theamount of money which will reasonably and fairly compensate him for any of the followingelements of damages proved by the evidence to have resulted from the [negligence][wrongful conduct] [of the defendant], [taking into consideration the nature, extent andduration of the injury].

[Here insert the elements of damages which have a basis in the evidence.]

Whether any of these elements of damages has been proved by the evidence is for youto determine." IPI Civil (2000) No. 30.01.

Plaintiff sought to have the jury consider damages for the aggravation of her preexisting condition(IPI Civil (2000) No. 30.03), disfigurement (IPI Civil (2000) No. 30.04), loss of a normal life (IPICivil (2000) No. 30.04.01), pain and suffering (IPI Civil (2000) No. 30.05), medical care (see IPICivil (2000) No. 30.06), and lost earnings (IPI Civil (2000) No. 30.07). Thus, the instructiontendered to the jury read:

"If you decide for the plaintiff on the question of liability, you must then fix theamount of money which will reasonably and fairly compensate him [sic] for any of thefollowing elements of damages proved by the evidence to have resulted from the negligenceof the defendant, taking into consideration the nature, extent and duration of the injury.

The aggravation of any pre-existing ailment or condition.

The disfigurement resulting from the injury.

Loss of a normal life experienced and reasonably certain to be experienced in thefuture.

The pain and suffering experienced and reasonably certain to be experienced in thefuture as a result of the injuries.

The reasonable expense of necessary medical care, treatment, and services received.

The value of earnings lost.

Whether any element of these damages has been proved by the evidence is for youto determine."

When IPI Civil (2000) No. 30.03 is given, the Notes on Use for that instruction direct thatIPI Civil (2000) No. 30.21 also be given. Accordingly, over defendant's objection, the court tenderedto the jury IPI Civil (2000) No. 30.21, which reads:

"If you decide for plaintiff on the question of liability, you may not deny or limit theplaintiff's right to damages resulting from this occurrence because any injury resulted froman aggravation of a pre-existing condition."

In conjunction with these instructions, the following verdict form was tendered to the juryover defendant's objection:

"We, the jury, find for Plaintiff, Connie Hess, and against Defendant, Michelle Espy. We assess the damages in the sum of $______________________, itemized as follows:

The aggravation of any pre-existing ailment or condition . . . .$_________________

The disfigurement resulting from the injury . . . . . . . . . . . . . .$_________________

Loss of a normal life experienced

and reasonably certain to be experienced in the future . . . . . .$_________________

The pain and suffering experienced and reasonably certain

to be experienced in the future as a result of the injuries . . . . .$_________________

The reasonable expense of necessary medical care, treatment,

and services received . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$_________________

The value of earnings lost. . . . . . . . . . . . . . . . . . . . . . . . . . . .$________________."

The verdict form was based on IPI Civil (2000) No. B45.01.A. The jury awarded plaintiff damagesin the amount of $190,939.28, $75,000 of which was for the aggravation of a preexisting ailment orcondition.

All of the instructions at issue here, as well as the itemized verdict form used in this case,were authorized by Illinois Pattern Jury Instructions. Supreme Court Rule 239(a) directs the trialcourt to use IPI instructions when applicable:

"(a) Use of IPI Instruction; Requirements of Other Instructions. Whenever IllinoisPattern Jury Instructions (IPI) contains an instruction applicable in a civil case, giving dueconsideration to the facts and the prevailing law, and the court determines that the juryshould be instructed on the subject, the IPI instruction shall be used, unless the courtdetermines that it does not accurately state the law." 177 Ill. 2d R. 239(a).

However, our supreme court has observed that IPI instructions are not exempt from challenge. Powers v. Illinois Central Gulf R.R. Co., 91 Ill. 2d 375, 385 (1982). Indeed, in Powers, the supremecourt pointed out that the IPI instructions do not receive advance approval from the court and thatthe instructions are approved or rejected only once they are questioned and considered by thejudiciary. Powers, 91 Ill. 2d at 385. Whether IPI Civil (2000) No. 30.03 accurately states the lawis subject to de novo review. Luye v. Schopper, No. 1--02--0610 (April 13, 2004).

In Powers, the defendant argued that the trial court erred in tendering to the jury aninstruction and itemized verdict form that directed the jury to award as a separate element ofdamages the "nature, extent and duration of the injury." Powers, 91 Ill. 2d at 377-78. The Defendantcontended that "the nature, extent and duration of the injury" was not compensable as an element ofdamages separate and apart from the other elements of damages in the instructions (e.g., disability,pain and suffering) and that instructing the jury as such led to a duplicative recovery for the plaintiff. Powers, 91 Ill. 2d at 378. The supreme court agreed. Powers, 91 Ill. 2d at 384.

The instruction tendered to the jury in Powers was based on the Illinois Pattern JuryInstructions. The Powers court noted, however, that the cases cited in the IPI instructions for thenotion that "the nature, extent and duration of the injury" is a separate element of damages, did notsupport that proposition. Powers, 91 Ill. 2d at 381. The court then held that a jury's award for both"the nature, extent and duration of the injury" and elements such as disability and pain and sufferingresults in a double recovery because the latter elements necessarily involve an examination andassessment of the nature, extent, and duration of damages. Powers, 91 Ill. 2d at 382. In other words,while the jury may consider the nature, extent, and duration of an injury, the trial court may notinstruct the jury that the nature, extent, and duration of an injury is a separate element of damages. Powers, 91 Ill. 2d at 383-84.

The court in Smith v. City of Evanston, 260 Ill. App. 3d 925 (1994), the principal case citedby defendant, found the reasoning in Powers persuasive in assessing whether an award for both theaggravation of a preexisting condition and the other elements of damages constituted a doublerecovery. In Smith, the plaintiff injured her back in an automobile accident. The plaintiff had ahistory of back problems prior to the accident. The jury was provided an itemized verdict form andit awarded the plaintiff damages for medical care, lost wages, past pain and suffering, and theaggravation of a preexisting condition. On appeal, the Smith court concluded that the aggravationof a preexisting condition is not a separate element of damages because it overlaps with awards forother elements of damages. Smith, 260 Ill. App. 3d at 935-36. In reaching this decision, the courtfirst examined the history of itemized verdicts in Illinois and the use of IPI instructions on damages. The court noted that itemized verdicts in personal injury cases were not mandated by Illinois lawuntil 1976. Since then, courts have used the IPI Instructions to determine which separate categoriesof damages to include on the itemized verdict form. However, the court pointed out that most of theIPI instructions were based on law that predates the use of itemized verdicts and that the instructionshave not been revised to take itemization into consideration. Smith, 260 Ill. App. 3d at 933. Moreimportantly, the court pointed out that, when approved, the IPI instructions were intended "only toinform jurors of considerations that should affect the determination of what single sum would fullyand fairly compensate a plaintiff for losses." (Emphasis added.) Smith, 260 Ill. App. 3d at 934.

The Smith court then looked to the Powers decision, holding:

"Just as the court in Powers could find no measure for the nature of the injury as a separateelement of damages, we find no measure for the value of aggravation of a preexistingcondition that is separate from the other elements of damages. A jury appraising themonetary value of aggravation of the condition needs to look to the increase in medical costs,the earnings lost which would not have been lost by reason of the preexisting conditionalone, the increase in pain and suffering, and the worsening of disabilities and disfigurement. *** An award for aggravation of a preexisting condition overlaps with awards for all of theother elements of damages, so inclusion of aggravation of conditions as a separate elementleads to the same possibility of overcompensation that led the court in Powers to rule againstthe use of nature of the injury as a separate element of damages, despite the approval of thatas a separate category of damages in the IPI instructions then in effect. *** We hold thatunder the reasoning of Powers, aggravation of a preexisting condition is not a separateelement of damages. It is, like the nature, extent and duration of the injury, a matter to takeinto account when assessing the proper, separable elements of damages." Smith, 260 Ill.App. 3d at 935-36.

Simply stated, the Smith court held that the aggravation of a preexisting condition is not a separateelement of damages, because it duplicates or overlaps recovery for other elements of damages. Smith, 260 Ill. App. 3d at 936. The Fourth District adopted Smith in Boehm v. Ramey, 329 Ill. App.3d 357, 365 (2002), holding that an award of damages for the aggravation of a preexisting conditionoverlaps with an award obtained for all of the other elements of damages. See also Tedeschi v.Burlington Northern R.R. Co., 282 Ill. App. 3d 445, 449-50 (1996) (holding that jury's award ofdamages for aggravation of a preexisting condition but not for any other category of damagesrecognized the possibility of duplicate recovery).

More recently, the First District reaffirmed its holding in Smith that the aggravation of apreexisting condition is not a separate element of damages. In Luye, No. 1--02--0610, the plaintiffwas injured while exiting a taxicab. The jury was instructed that the aggravation of a preexistingcondition was a separate element of damages, and the itemized verdict form listed the aggravationof a preexisting condition as a separate element of damages. Ultimately, the jury returned a verdictin the plaintiff's favor, awarding the plaintiff damages in the amount of $247,580.45, $112,000 ofwhich was for the aggravation of a preexisting condition. On appeal, the defendant challenged thepropriety of the instruction and the verdict form listing the aggravation of a preexisting condition asa separate element of damages.

Taking a cue from Powers, the Luye court examined the two cases cited in the comment tothe IPI instructions for the proposition that the aggravation of a preexisting condition is a separateelement of damages. See IPI Civil (2000) No. 30.03; Wheeler v. Roselawn Memory Gardens, 188Ill. App. 3d 193 (1989); Behles v. Chicago Transit Authority, 346 Ill. App. 220, 231 (1952). Thecourt noted that while the juries in both Wheeler and Behles were allowed to consider theaggravation of a preexisting condition when determining damages, neither case explicitly held thatthe aggravation of a preexisting condition is a separate element of damages. Luye, slip op. at 16. Indeed, our independent review of Wheeler and Behles indicates that the panels in those cases werenot even asked to address the issue of the propriety of the aggravation of a preexisting condition asa separate element of damages. See Wheeler, 188 Ill. App. 3d at 203-04 (addressing whetherinstruction, directing jury that the plaintiff's right to recover damages is not limited or barred becauseany injury resulted from the aggravation of a preexisting condition, must accompany Illinois PatternJury Instructions, Civil, No. 30.03 (2d ed. 1971); Behles, 346 Ill. App. at 231-32 (noting that thedefendant's objection to instruction was based on failure to request special damages and that therewas no evidence that the accident aggravated a preexisting condition).

In support of the proposition that the aggravation of a preexisting condition constitutes aseparate element of damages, plaintiff relies on Kravcik v. Golub & Co., 286 Ill. App. 3d 406 (1996). The Kravcik court rejected Smith, stating that Smith "deviated from the plethora of cases holdingthat the aggravation of a preexisting condition is a separate element of compensable damages" and"ignored prior well-reasoned case law and the established pattern jury instructions." Kravcik, 286Ill. App. 3d at 412-13.

The "plethora" of cases referred to in Kravcik consists of Balestri v. Terminal FreightCooperative Ass'n, 76 Ill. 2d 451 (1979), Ficken v. Alton & Southern R.R. Co., 255 Ill. App. 3d 1047 (1993), Wheeler, 188 Ill. App. 3d 193, and Behles, 346 Ill. App. 220. However, as the Luyecourt pointed out, neither Wheeler nor Behles holds that the aggravation of a preexisting conditionis a separate compensable element of damages. Likewise, the Balestri court did not address whetherthe aggravation of a preexisting condition is a separate compensable element of damages. Further,while Ficken does state that the aggravation of a preexisting ailment or condition is a separateelement of compensable damages (Ficken, 255 Ill. App. 3d at 1056), Ficken predated the Smith caseand relied on Behles for this proposition.⁽¹⁾ Because of the dubious nature of the authorities cited byKravcik, we disagree with the notion that Smith ignores well-reasoned case law. To the contrary,the Smith decision relies principally on Powers, a well-reasoned decision from our supreme court. Moreover, while we do not dispute that a holding that the aggravation of a preexisting condition doesnot constitute a separate compensable element of damages disregards the IPI instructions, therationale for such a holding is simple: the authority for the proposition is not supported by the caselaw set forth in the comments to the IPI instructions.

Curiously, while the Kravcik court approved of instructing the jury that the aggravation ofa preexisting condition is a separate element of damages, it rejected the proposition that the juryshould be provided with an itemized verdict form listing the aggravation of a preexisting conditionas a separate element of damages. Kravcik, 286 Ill. App. 3d at 414 ("In light of the foregoing, wereverse the trial court's decision, finding that the court abused its discretion when it failed to properlyinstruct the jury as to IPI Civil 3d No. 30.03, but we affirm the trial court's rejection of the instructionregarding the itemization for the aggravation of any preexisting ailment or condition as a separateitem of damages in the verdict form"). Thus, Kravcik is not entirely at odds with the Smith line ofcases.

After considering the cases cited above, we find the reasoning in Smith and its progeny morepersuasive than Kravcik. We hold that allowing the jury to separately compensate a party for theaggravation of a preexisting condition overlaps with awards for the other elements of damages. Asthe Smith court stated, "[a] jury appraising the monetary value of aggravation of the condition needsto look to the increase in medical costs, the earnings lost which would not have been lost by reasonof the preexisting condition alone, the increase in pain and suffering, and the worsening ofdisabilities and disfigurement." Smith, 260 Ill. App. 3d at 935. In other words, although the jurymay consider the aggravation of a preexisting condition when assessing other elements of damages,it is improper for the trial court to instruct the jury to separately award for the aggravation of apreexisting condition and to provide the jury an itemized verdict form listing the aggravation of apreexisting condition as a separate element of damages. Because the jury in this case was instructedthat the aggravation of a preexisting condition is a separate element of damages and because the jurycompensated plaintiff separately for the aggravation of a preexisting condition, we grant defendant'srequest for a new trial on damages.

2. Remaining Issues.

Before concluding, we briefly note defendant's assertion that there was insufficient evidenceto substantiate any claim for damages for the aggravation of a preexisting condition, lost wages,future pain and suffering, and medical care and treatment. Because we are remanding the cause fora new trial on damages, these issues are rendered moot. See Boehm, 329 Ill. App. 3d at 367(refusing to address propriety of damages where court ordered new trial on damages). However, wedo address one issue that may arise on remand. According to defendant, a mortality table instructionis proper only where there is evidence of a permanent injury. See Simon v. Van Steenlandt, 278 Ill.App. 3d 1017, 1020 (1996). Plaintiff does not dispute this proposition. Accordingly, on remand,a mortality table instruction shall be tendered to the jury only if there is evidence of a permanentinjury.

III. CONCLUSION

For the aforementioned reasons, we affirm the judgment of the circuit court of Winnebago County on the issue of liability, we vacate the jury's award of damages, and we remand the cause fora new trial on damages only.

Affirmed in part and vacated in part; cause remanded.

O'MALLEY, P.J., and BOWMAN, J., concur.

1. The Ficken court also cites to Grimming v. Alton & Southern R.R. Co., 204 Ill. App. 3d961, 983 (1990), for the proposition that the aggravation of a preexisting condition is a separateelement of damages. However, like Behles, the Grimming court does not hold such.