Donnellan v. First Student, Inc.

• Decision Date: 19 June 2008
• Docket Number: No. 1-06-2418.,1-06-2418.
• Citation: 891 N.E.2d 463
• Parties: Vincent DONNELLAN, Plaintiff-Appellee, v. FIRST STUDENT, INC., Defendant-Appellant. (Earl F. McClendon, Defendant.).
• Court: United States Appellate Court of Illinois

891 N.E.2d 463

Vincent DONNELLAN, Plaintiff-Appellee, v. FIRST STUDENT, INC., Defendant-Appellant.

(Earl F. McClendon, Defendant.).

No. 1-06-2418.

Appellate Court of Illinois, First District, Fourth Division.

June 19, 2008.

Rehearing Denied July 24, 2008.

Edward M. Kay, Paula M. Catstensen, Clausen, Miller P.C., Chicago, IL, for Plaintiff-Appellant, First Student, Inc.

William J. Harte, Ltd., and The Healy Law Firm, (Martin J. Healy, Jr., Kevin T. Vuegeler, William J. Harte, Joan M. Mannix, of counsel), Chicago, IL, for Plaintiff-Appellee, Vincent Donnellan.

Justice MURPHY delivered the opinion of the court:

On February 11, 2002, plaintiff Vincent Donnellan's cargo van was rear-ended by a school bus driven by an employee of defendant First Student, Inc. Plaintiff, 31 years old on the date of the accident, had no adverse health issues at the time. Plaintiff alleged in his complaint that, as a result of the accident, he suffered numerous permanent physical and mental injuries. Defendant conceded its negligence in the accident, but disputed that the accident was the proximate cause of plaintiff's alleged injuries.

On April 7, 2006, following several days of trial, the jury returned a verdict in favor of plaintiff for $6 million. Defendant seeks reversal of the jury verdict or, alternatively, reversal of the damages award and remand for new trial on damages or substantial remittitur. Defendant argues that the trial court abused its discretion and committed prejudicial error in allowing plaintiff's day-in-the-life video as demonstrative evidence but barred defendant's surveillance video. Defendant also argues that it was prejudiced by several evidentiary errors and the trial court's instructions to the jury. For the following reasons, we affirm the verdict of the jury.

I. BACKGROUND

On September 11, 2002, plaintiff filed a complaint against defendant and Earl F. McClendon for injuries allegedly suffered due to defendant's negligence in the February 11, 2002, accident. At the time, McClendon was defendant's employee and driving the school bus that rear-ended plaintiff. Prior to trial, McClendon was voluntarily dismissed and defendant admitted negligence.

Prior to the commencement of trial on the issues of causation and damages, the trial court heard the parties' motions in limine. At issue on appeal are the trial court's decisions regarding plaintiff's day-in-the-life video, a surveillance video completed for defendant, and, following a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923), testimony on the results of a "Single Photon Emission Computer Tomography" (SPECT) scan of plaintiff's brain.

A. Plaintiff's Day-In-The-Life Video

The parties and the trial court watched the day-in-the-life video that the trial court described as a 4.5-minute video of plaintiff arriving at his therapist's office and going through physical therapy. Defendant argued that the video was not demonstrative, but substantive medical evidence, and that the audio and video depicted plaintiff in pain during his therapy session. Defendant claimed that it was at a disadvantage from the late disclosure as it could not depose the therapist or videographer before trial. The trial court found that, with the proper foundation from someone with personal knowledge that the video truly and accurately depicts what it shows, the video would be allowed as demonstrative evidence without audio. The trial court further granted defendant the right to depose the physical therapist in the video.

B. Defendant's Surveillance Video

Plaintiff sought to bar the use of a surveillance video defendant had taken of plaintiff less than two months before trial. Two days before the case was assigned for trial, defendant produced a copy of the video to plaintiff. Plaintiff asserted that the video was produced at such a late date that he was prejudiced by his inability to explore the content of the video with any witnesses. Furthermore, plaintiff argued that the videotape was edited from the total film taken and sped up in such a way that it was not an accurate portrayal of plaintiff's physical abilities.

Defendant argued that the surveillance video was relevant to the jury's determination of the effect of the injury on plaintiff's daily lifestyle. Defendant also argued that the late disclosure was not an issue, especially in light of the day-in-the-life video that was produced the day before trial. The trial court granted the motion to bar the surveillance video at that time to allow an opportunity for the court to review the video. The parties agreed not to mention the video during opening argument.

At the end of plaintiff's case, the trial court revisited the issue and held a foundational hearing. Defendant presented the testimony of Michael Kobliska, the private investigator who conducted the surveillance of plaintiff on February 9, 2006. Kobliska testified that he took the video with a Super 8 camera and the original tape was then converted to compact disc format by a third party. Kobliska did not know if the video was compressed or edited. However, he admitted that some actions noted in his report were not shown in the video.

In response, plaintiff offered the testimony of Steven Grant, a media expert. Grant testified to the effect of converting a Super 8 tape to MPEG computer file on compact disc. Grant indicated that this process compresses a file from 10,000 megabytes to 400 megabytes. He opined that this results in "tremendous changes" in the file.

In rendering its decision, the trial court first noted that there were issues with defendant's failure to disclose Kobliska as a witness during discovery and to seasonably supplement discovery. The trial court stated that it would not consider the copied videos because it had the original and the copies had been altered by the compression process. The trial court barred the original video solely on a balancing of the probative value of the video and the possibility of prejudice to plaintiff.

The trial court noted that defendant was offering the video as demonstrative evidence, but, pursuant to People ex rel. Sherman v. Cryns, 203 Ill.2d 264, 284-85, 271 Ill.Dec. 881, 786 N.E.2d 139 (2003), it could not allow the video if the threat of prejudice substantially outweighed the probative value of the video. The trial court found that the video had no probative value because it did not prove or disprove any facts at issue. However, the threat of prejudice was determined to be substantial because throughout the video, the view is obstructed. The trial court found that it is impossible to determine what activity is going on and if plaintiff is doing any work. It opined that this could prejudicially give the jury the impression that plaintiff was able to complete extensive work without pain.

C. The Frye Hearing

Defendant also objected to the use of the SPECT scan and testimony regarding the analysis of the scan. Defendant requested a Frye hearing on the SPECT scan technology. Plaintiff presented the testimony of Dr. Dan G. Pavel, who testified that he was board certified in nuclear medicine. Pavel testified that he was currently affiliated with the University of Illinois at Chicago Hospital as a professor and had served an 11-month sabbatical with the National Institute of Health from 1995 to 1996.

Pavel explained that a SPECT scan measures the amount of activity over an organ, in this case the brain, by detecting tracer compounds injected into the patient. Pavel testified that he had been involved with SPECT scans for about 14 years, including lecturing and publishing articles on their use in brain trauma, and that they have been in wide use in hospitals throughout the country for more than 20 years. Pavel testified that several articles on SPECT scans and brain trauma had been written over that time but that the technology was continually evolving.

Because of his years of experience, Pavel was able to identify abnormalities in plaintiff's SPECT scans and make a differential diagnosis as to potential causes. Pavel testified that, with the patient's history and the SPECT scan results, he concluded that the injuries were consistent, within a certain level of probability, with a traumatic brain injury. Pavel admitted that he did not compare plaintiff's scan with that of a "normal" baseline scan, but stated that no such scan exists and he could only base his conclusion on his years of experience of reviewing SPECT scans.

Pavel also admitted that he could not opine that a traumatic brain injury caused the abnormalities, but only that they were consistent with such an injury. Pavel responded that false positives could, theoretically, be caused by a patient's medication but, practically, this was very unlikely. Accordingly, the trial court found that Pavel could not testify that the SPECT scan allowed him to opine on a causal connection, but would be limited to stating, based on studies, literature and his own experience, that the scan was consistent with a patient with a traumatic brain injury.

D. Plaintiff's Testimony

Plaintiff testified that he was born in Ireland in 1971 and moved to the Chicago area in 1996 where he found work as a carpenter. In 2000, plaintiff started an excavating company with a friend. In addition, he started a business that framed out residential buildings. At the time of the accident, plaintiff was driving his cargo van, which contained various tools and a generator separated from the front seats by a metal cargo cage. Plaintiff was stopped in the left lane, preparing to make a left turn. When plaintiff bent down to pick something up, McClendon rear-ended the van with the school bus. Plaintiff was hit in the back of the head by either the generator or a power tool that broke through the cargo cage and hit plaintiff. The van was pushed through the intersection and down into a ditch and rendered inoperable.

Plaintiff testified that he was dizzy and had a headache,...