Ziekert v. Cox

• Decision Date: 03 May 1989
• Docket Number: No. 88-2313,88-2313
• Citation: 538 N.E.2d 751,182 Ill.App.3d 926,131 Ill.Dec. 376
• Parties: , 131 Ill.Dec. 376 Kenneth W. ZIEKERT, Plaintiff-Appellee, v. David COX, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 751

538 N.E.2d 751

182 Ill.App.3d 926, 131 Ill.Dec. 376

Kenneth W. ZIEKERT, Plaintiff-Appellee, v. David COX, Defendant-Appellant.

No. 88-2313.

Appellate Court of Illinois First District, Third Division.

May 3, 1989.

[182 Ill.App.3d 927] [131 Ill.Dec. 377] McKenna, Storer, Rowe, White & Farrug, Chicago (James P. DeNardo and Christine

[131 Ill.Dec. 378] L. Olson, of counsel), for defendant-appellant

Lane & Munday, Chicago (Kathleen Reynolds and John J. Munday, of counsel), for plaintiff-appellee.

Presiding Justice FREEMAN delivered the opinion of the court:

Plaintiff, Kenneth Ziekert, sued defendant, David Cox, for personal injuries sustained when defendant's automobile rear-ended plaintiff's automobile on the Kennedy expressway. At the close of all the evidence the trial court granted plaintiff directed verdicts finding that he had not been contributorily negligent and that defendant had been negligent, as a matter of law. Thereafter, the jury awarded plaintiff $96,500 in damages. Defendant appeals.

At trial, plaintiff testified that he left his office in downtown Chicago at approximately 5:30 p.m. on December 2, 1977, a weekday, and drove to the Kennedy expressway, which he normally travelled on his way home. When plaintiff exited the westbound express lanes, traffic came to a stop at the intersection of the Kennedy and Edens expressways. Plaintiff "came to a stop because of traffic stopping up ahead." Plaintiff described his stop as "gradual" and "complete." After stopping his vehicle, plaintiff reached to turn the volume on his radio down. While so doing, plaintiff's vehicle was struck from behind. Plaintiff was "violently thrown backwards" in his seat, felt as if he "was going backward over the * * * front seat" and "was immediately disoriented" for about a minute or two. After the collision, defendant told plaintiff that he had been "looking over his shoulder to learn if traffic was clear so he could pass" plaintiff's stopped vehicle.

Plaintiff's expert witness, Dr. John Shea, a neurosurgeon, testified through an evidence deposition. Dr. Shea reviewed the records of plaintiff's treatment for health problems he experienced after the accident. Those records consisted of plaintiff's treatment at the emergency room of Sherman Hospital in Elgin, Illinois and records of Drs. Lea, Mansfield and Campbell, the latter of the Mayo Clinic in Rochester, Minnesota. He also reviewed the records of plaintiff's examination by Dr. William Grimm, a neuropsychologist to whom Dr. Shea referred plaintiff, and the records of plaintiff's ophthalmological examination. Dr. Shea stated that these are the types of records normally relied upon by experts in the field. Dr. Shea also examined plaintiff in October 1987. Dr. Shea testified extensively regarding, inter alia, the causes and symptoms of traumatic brain injury in general and pseudotumor cerebri in particular as well as the methods of diagnosis of the latter. After reviewing the plaintiff's medical records, Dr. Shea stated his opinion, based on a reasonable degree of medical and neurological certainty, that plaintiff had a pseudotumor cerebri which was caused by a traumatic occlusion or blockage of the right sinus. Finally, Dr. Shea testified that after examining plaintiff and reviewing the report of Dr. Grimm, it was his opinion that plaintiff's pseudotumor cerebri was proximately caused by the accident with defendant.

Over defendant's objection based on plaintiff's failure to disclose his identity until the day before the trial started, the trial court allowed Dr. Grimm to testify for plaintiff. Dr. Grimm conducted a mental status examination of plaintiff to determine his orientation and performed a series of tests on plaintiff to determine whether he had any cognitive difficulties. As a result of his examination and tests, Dr. Grimm determined that plaintiff exhibited mild difficulties in concentration and spatial perception. He also concluded that plaintiff was experiencing an enhanced sense of stress and anxiety since his accident. At the end of his examination, Dr. Grimm recommended to plaintiff "learning a new set of skills" to help him deal with daily stresses more effectively.

Defendant testified that the accident with plaintiff occurred on the Kennedy expressway beyond both the merger of the express and local lanes and the separation of the Kennedy and Edens expressways. It occurred at about 8 p.m., when it was dark and the traffic was heavy but was the For defendant, Dr. James Mansfield, a neurosurgeon who treated plaintiff in 1981 and the first to diagnose plaintiff's condition as a pseudotumor cerebri, testified that the collision did not cause plaintiff's condition. Defendant's expert, Dr. Marshall Matz, also a neurosurgeon, agreed with Dr. Campbell's conclusion that the cause of plaintiff's sinus occlusion, which, in turn, caused the pseudotumor, was unknown. However, Dr. Matz did state that the collision with defendant did not cause plaintiff to develop the sinus occlusion.

"usual rush hour traffic." At that time, defendant "went to change lanes." In so doing, he turned on his turn signal, looked into his rearview mirror and turned his head over his right shoulder to check his blind spot. By the time he looked forward again, defendant saw two brakelights on, realized that traffic was stopped ahead of him, and collided into the rear of plaintiff's car.

OPINION

On appeal, defendant first contends the trial court erred in denying him a judgment n.o.v. because plaintiff failed to prove that defendant proximately caused his injuries. Defendant asserts that Dr. Shea's testimony that plaintiff's pseudotumor cerebri was caused by the collision was outweighed by that of Drs. Mansfield and Matz.

A judgment n.o.v. is proper only where all the evidence, when viewed in its aspect most favorably to the nonmovant, so overwhelming favors the movant that no contrary verdict based on the evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504.

Contrary to defendant's assertion, Dr. Shea's testimony was sufficient to sustain the verdict for plaintiff. An expert opinion, held to a reasonable degree of medical certainty, provides an adequate basis for a jury finding that causation was proved by a preponderance of the evidence. Witherell v. Weimer (1987), 118 Ill.2d 321, 337, 113 Ill.Dec. 259, 515 N.E.2d 68; Shaw v. Klompien (1988), 168 Ill.App.3d 705, 714, 119 Ill.Dec. 408, 522 N.E.2d 1267.

In this regard, the weight to be given Dr. Shea's testimony was not lessened by his statement that the most common cause of sinus occlusion was a mastoid infection. The fact that plaintiff did not have a mastoid infection supported, rather than negated, the conclusion that the collision with defendant was the cause of plaintiff's condition. Dr. Shea also testified that 90 to 95% of all pseudotumors cerebri were nontraumatic spontaneous events, that most cases of pseudotumor had nothing to do with sinus occlusion and that plaintiff had gone the longest he had seen between a traumatic event and onset of pseudotumor cerebri. These concessions by Dr. Shea did not require the jury to discount his testimony that, to a reasonable degree of medical certainty, plaintiff's condition was caused by the collision with defendant. The relative weight and sufficiency of expert testimony is peculiarly within the province of the jury. Fuery v. Rego Co. (1979), 71 Ill.App.3d 739, 745, 28 Ill.Dec. 115, 390 N.E.2d 97.

In this same vein, the conflict between Dr. Shea and Drs. Mansfield and Matz as to the ultimate cause of plaintiff's condition did not require the jury to give more weight to the testimony of the latter. A disagreement among medical authorities as to cause-and-effect does not preclude a verdict for the plaintiff. (Witherell.) In other words, the jury was free to believe Dr. Shea's testimony over that of defendant's witnesses. (See Trower v. Jones (1986), 149 Ill.App.3d 705, 721, 103 Ill.Dec. 63, 500 N.E.2d 1134, rev'd on other grounds (1988), 121 Ill.2d 211, 117 Ill.Dec. 136, 520 N.E.2d 297). After reviewing the record, we cannot say that the evidence in this case satisfies the Pedrick standard.

Defendant next contends the trial court erred in denying him a new trial based on several alleged errors.

Defendant first asserts that the trial court erred in failing to exclude Dr. Grimm as an expert witness under Supreme Court Rule 220. (107 Ill.2d R. 220.) Plaintiff defends the trial court's decision on the grounds, inter alia, that his trial counsel did not know that he had been examined by Dr. Grimm until the week before the trial started and that she immediately turned over his report to defense counsel.

Rule 220 requires the pretrial disclosure of expert witnesses, i.e., persons who, because of education, training or experience, possess knowledge of a specialized nature beyond that of the average person on a material factual matter and who are retained to render an opinion at trial. (107 Ill.2d R. 220.) Contrary to defendant's assertion, there is nothing in the record to indicate that plaintiff retained Dr. Grimm to testify as an expert witness at trial. Moreover, he did not, as an expert typically does, render any opinions regarding any matters in issue. For that reason, defendant's reliance on Phelps v. O'Malley (1987), 159 Ill.App.3d 214, 110 Ill.Dec. 797, 511 N.E.2d 974, holding that the testimony of an undisputed expert witness should have been barred due to the plaintiff's violation of Rule 220, is misplaced.

Moreover, we need not determine that Dr. Grimm was excluded from the disclosure requirements of Rule 220 by virtue of being a treating physician in order to find that there was no violation of that rule. Rule 220 applies only to expert witnesses. The pretrial disclosure of all other witnesses, whether treating physicians or not, is governed by Supreme Court Rule 219. (107 Ill.2d R. 219.) That rule...