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March 23, 2001

No. 3-00-0088

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

Modified Upon Denial of Rehearing
JUSTICE McDADE delivered the opinion of the court:

Plaintiff, Floyd Hulbert, appeals from the denial of his motion for a newtrial following a jury verdict awarding him damages for pain and suffering andfor medical expenses but no relief for disability and for aggravation of apre-existing condition. The Court finds no abuse of discretion by the trialcourt. The decision is affirmed.

FACTS

On March 28, 1995, plaintiff, Floyd Hulbert (Floyd), was driving a car onBarstow Road in Rock Island County, Illinois, in which his wife, Louella Hulbert(Louella), was a passenger. Their vehicle was rear-ended by one driven bydefendant, Richard York. They were seen at the emergency room at Illini Hospitaland released. On the following day, Floyd took Louella to her doctor, Noel Lee,M.D. (Dr. Lee).

Although Dr. Lee had never previously examined or treated Floyd, he did orderX-rays of his cervical spine on April 28, 1995, approximately a month after theaccident. The X-rays were negative for any fracture, and Dr. Lee recommended acourse of therapy which Floyd undertook. He returned to Dr. Lee on May 16, 1995,and was advised that, if his problems persisted, he should return for a "sedrate" which would show whether there was increased inflammation. Floyd didnot complain further and no sed rate was ever taken. Floyd neither sought norreceived additional treatment from Dr. Lee or any other physician during thefour years preceding the trial. He testified that his pain resolved itselfwithin eight to ten months.

Floyd, who was 68 at the time of the accident, had suffered sinceapproximately age 17 from "ankylosis spondylitis"--a permanent anddebilitating condition. Dr. Lee described the condition as

"a type of arthritic process that's related to rheumatoid arthritis that causes the spine to not be able to move. It fuses. Actually, it's a condition more of the ligaments adjoining the bones than the bones themselves."

During the years, traumatic incidents had exacerbated the effects of thecondition.

Prior to April of 1995, Dr. Lee had never treated Floyd for the ankylosisspondylitis or for anything else. He had, however, had some opportunity forcasual observation when Floyd had brought his mother and his wife in for medicalcare.

By contrast, Louella had been a patient of Dr. Lee since November of 1993.She suffered from hypertension (high blood pressure), arrhythmia (heartproblem), asthma, and chronic degenerative cervical arthritis. She died onDecember 29, 1998 of a stroke unrelated to the accident. Louella's claimsproceeded with Floyd serving as Special Administrator of her estate.

The claims of both Louella and Floyd were tried to a jury. The only medicalprofessional who offered testimony was Dr. Lee. A judgment was entered in favorof plaintiffs and against Defendant on the issues of liability (primary andcontributory fault) at the close of plaintiffs' evidence. The case proceeded andwas submitted to the jury solely on the matter of damages.

During the course of their deliberations, the jurors sought and were providedwith the deposition transcript of Dr. Lee. Using the prepared verdict forms, thejury made the following awards:

                                                                                           Louella                        Floyd

Aggravation of Pre-existing Condition                       $2,500                            $ 0

Disability                                                                    1,000                               0

Pain and Suffering                                                      2,500                         2,500

Medical Expense                                                       1,310                         1,246

Services of Spouse                                                    N.A.                             500

Society/Companionship/Sexual Relations                   N.A.                             500
                                                                                _____                       ______

                                                                              $7,310                         $4,746

Floyd Hulbert appeals only in conjunction with his award. He does notchallenge the verdict as to Louella Hulbert.

ANALYSIS

Standard of Review

In a timely-filed post trial motion, Floyd moved for a new trial. Thestandard to be applied by the trial court in exercising its discretion iswhether the decision of the jury was against the manifest weight of theevidence. Joel R. v. Board of Education of Mannheim School District 83,292 Ill. App. 3d 607, 686 N.E.2d 650 (1997), Tedrowe v. BurlingtonNorthern, Inc., 158 Ill. App. 3d 438, 511 N.E.2d 798 (1987).Following denial of his motion, Plaintiff appealed to this court. Our standardfor reviewing the issue presented on appeal is whether the trial court abusedits discretion in denying the motion. Maple v. Gustafson, 151Ill.2d 445, 603 N.E.2d 508 (1992); Blakey v. Gilbane Building Corp., 303Ill. App. 3d 872, 708 N.E.2d 1187 (1999), Moran v. Erickson, 297 Ill.App. 3d 342, 696 N.E.2d 780 (1998). We, therefore, seek to determine whetherthere was sufficient evidence in the record to support the jury's assessment ofdamages and the court's denial of plaintiff's prayer for a new trial.

The Jury's Apportionment of Damages

Plaintiff has suggested in his brief that the jury, having accepted thatFloyd had pain and medical expenses, was legally bound to also find disabilityand aggravation. He argues in support of his desired result that he presented awitness who testified affirmatively to those elements and who was not impeachedor contradicted. He contends that the jury could not ignore that testimony andrefuse to impose additional damages. The court believes this argument lacksmerit.

The jury is, collectively, the finder of fact. The jurors are instructed onhow to perform this function properly. In this case, the record shows that theywere told:

"In considering the evidence in this case you are not required to set aside your own observation and experience in the affairs of life but you have a right to consider all the evidence in the light of your own observation and experience in the affairs of life.

You are the sole judges of the credibility of the witnesses and of the weight to be given to the testimony of each of them. In determining the credit to be given any witness you may take into account his ability and opportunity to observe, *** and the reasonableness of his testimony considered in the light of all the evidence in the case.

With respect to the claim of Floyd Hulbert for his own personal injuries, if you decide for him on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damages proved by the evidence to have resulted from the negligence of the defendant***

The aggravation of any pre-existing ailment or condition.

The disability resulting from the injury.

The pain and suffering experienced as a result of the injuries.

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

Whether any of these elements of damages has been proved by the evidence is for you to determine."

None of these instructions, given at the behest of Plaintiff, directs thejury that it is obligated to find aggravation and/or disability simply becauseit determines that plaintiff had pain and expense. Indeed, all guidance is tothe contrary--damages are only to be given for injury proven to the satisfactionof the jury to have occurred and to have been caused by the negligence ofDefendant.

Similarly, the case law discourages such a lock-step approach to damages,emphasizing instead great deference to the jury's award decision. Looking firstat damages for claimed disability, this court, in White v. Leuth, 283Ill. App. 3d 714, 670 N.E.2d 1143 (1996) found that a logical link could befound between pain and suffering and medical expenses, but rejected a connectionbetween those elements and the plaintiff's claimed disability. See also Natalinov. JMB Realty Corp., 277 Ill. App. 3d 270, 660 N.E.2d 138 (1995), andHastings v. Gulledge, 272 Ill. App. 3d 861, 651 N.E.2d 778 (1995).

While there appear to be no cases directly dealing with a failure to awarddamages for aggravation even though compensating the plaintiff for pain andsuffering and medical expenses, the Fourth District held in Craigmiles v.Egan, 248 Ill. App. 3d 911, 618 N.E.2d 1242 (1993), that a jury is free toconclude, even in the face of a claim of aggravation, that there has not beennew or additional pain and suffering caused by the accident. Moreover, there hasbeen some extremely constructive guidance from our supreme court for evaluatingthis issue.

In Snover v. McGraw, 172 Ill.2d 438, 667 N.E.2d 1310 (1996), thesupreme court not only reiterated the jury's entitlement to substantialdeference but also rejected a per se link between even pain and sufferingand medical expenses. The Second District has similarly rejected such a link.See Zuder v. Gibson, 288 Ill. App. 3d 329, 680 N.E.2d 483 (1997).What can be gleaned from these cases is that all of these elements of potentialdamage are independent, that they require proof of their existence, and that inthe process of evaluating the evidence and arriving at a verdict and assessmentof damages at trial, they are proven when the jury, as finder of fact, says thatthey have been.

In the context of this appeal, we now turn our attention more specifically tothe issue of whether the jury's decision not to award damages to Floyd foraggravation and disability was against the manifest weight of the factualevidence developed at trial.

The court initially finds it significant that the jury did awardLouella damages for disability and aggravation of a pre-existing condition. Thisfact suggests that the jurors understood the concepts of those elements ofdamage and applied some standard in determining what, if anything, should beassessed against the defendant for them.

We also find it significant that the jury asked for, and was given, thetranscript of Dr. Lee's testimony. Although the record is silent as to why itwas requested, there is no question of what information it would have revealed.It showed that Dr. Lee had actually treated Louella since November 1993 and waswell-acquainted with the nature and extent of her various ailments. He was inpossession of the history and records of his patient which would have allowedhim to make a reasonable and meaningful comparison of her condition before andafter the March 1995 accident.

Dr. Lee's testimony clearly disclosed, on the other hand, that he had no suchknowledge about Floyd. He confirmed that he had never previously examined Floydand had no prior medical information against which to evaluate any change in hiscondition after the accident. In addition, the x-rays ordered by Dr. Lee werenegative for any fracture. Floyd never presented any further complaints totrigger the testing for a "sed" rate to determine if there actuallywas any "flaring" of the ankylosis spondylitis. All that Dr. Lee wasable to say was that Floyd reported pain and a need to specially"rearrange" his body to stand up straighter, and that Floyd seemedmore "bent over" after the accident. When asked the basis for hisopinion that the prior condition had been aggravated, Dr. Lee stated:

"I felt that Floyd's disease process was pretty much set. Once you're fused, you can't be more fused. The bone can't get too much more thicker, and your mobility can't get too much more worse. You're frozen in one position.

I think that this motor vehicle accident actually worsened him by weakening his muscles and allowing him to bend over forward farther so that the bones now sag. Nothing was holding them up. And I think that his process that he's gone through since the accident time period is basically a problem from the accident and from these muscles being inflamed, strained."

The transcript showed no objective or ascertainable medical foundation forsuch a conclusion. Dr. Lee's testimony amounted to nothing more than Floyd'spurely subjective complaints articulated through his doctor. The onlysignificant supplemental information disclosed by Floyd's own testimony was thathe was unable to walk his dog as frequently after the accident as he couldbefore it. This, too, was purely subjective, and the jury was entitled to accordit little or no weight. Snover , 172 Ill.2d at 449, 667 N.E.2d at 1316.

Thus, considering all of the evidence in the light most favorable toDefendant, it is not clearly apparent either that Plaintiff suffered aggravationof his ankylosis spondylitis or disability as a result of the March 1995accident or that a verdict in accordance with such a conclusion is palpablyerroneous, arbitrary, or unsubstantiated. Joel R., 292 Ill. App.3d at 613, 686 N.E.2d at 655 (1997). Accordingly, we find that the verdictdeclining to award damages for aggravation of a pre-existing condition or fordisability was not against the manifest weight of the evidence.

The Court's Denial of Plaintiff's Motion for New Trial

A motion for a new trial is addressed to the sound discretion of the trialcourt, and the court's ruling on that motion will not be disturbed absent anabuse of discretion. Maple v. Gustafson, 151 Ill.2d at 454. 603N.E.2d at 512 (1992); Moran, 297 Ill. App. 3d at 352, 696 N.E.2dat 787 (1998). Under this abuse of discretion standard, we will reverse thedecision of the trial court only if no reasonable person could take the viewwhich he adopted.

The order entered by the trial court from which Plaintiff has appealedplainly indicates that the judge gave independent consideration to Floyd'sclaims for disability and for aggravation of a pre-existing condition. It alsostated that "the verdict is not contrary to [the] manifest weight of [the]evidence, which was essentially subjective evidence." (Emphasis inoriginal.)

Our own review confirms that there was ample support in the record for thejury's verdict. It is also apparent from the Order that the trial court gaveadequate consideration to the evidence and appropriate deference to thefact-finding function of the jury. We find no abuse of discretion.

CONCLUSION

For the foregoing reasons, the judgment of the circuit court of Rock IslandCounty denying plaintiff, Floyd Hulbert, a new trial is affirmed.

Affirmed.

BRESLIN and SLATER, J.J., concur.