Elliott v. Koch

• Decision Date: 09 July 1990
• Docket Number: No. 3-89-0611,3-89-0611
• Citation: 200 Ill.App.3d 1,558 N.E.2d 493
• Parties: , 146 Ill.Dec. 530 Truman J. ELLIOTT, Plaintiff-Appellant, v. Gary A. KOCH, Leroy J. Harms and William E. Mines, Defendants-Appellees (Patricia Elliott, Plaintiff).
• Court: United States Appellate Court of Illinois

Page 493

558 N.E.2d 493

200 Ill.App.3d 1, 146 Ill.Dec. 530

Truman J. ELLIOTT, Plaintiff-Appellant, v. Gary A. KOCH, Leroy J. Harms and William E. Mines Defendants-Appellees (Patricia Elliott, Plaintiff).

No. 3-89-0611.

Appellate Court of Illinois Third District.

July 9, 1990.

Rehearing Denied Aug. 7, 1990.

M. Michael Waters, Smith, Waters, Kuehn, & Hughes, Ltd., Peoria, for Truman J. Elliott.

Wayne L. Hanold, James R. Morrison, Westervelt, Johnson, Nicoll & Keller, Peoria, for Gary A. Koch.

Quinn, Johnston, Henderson & Pretorius, Peoria, for Leroy J. Harms.

John L. Morel, Dunn, Goebel, Ulbrich, Morel & Hundman, Bloomington, for William E. Mines.

Justice McCULLOUGH delivered the opinion of the court:

Plaintiff Truman Elliott was involved in a three-car accident on December 14, 1985, and filed this action against the defendants Gary Koch (Koch), Leroy Harms (Harms), and William Mines (Mines) for personal injuries. The jury returned a verdict for Mines against plaintiff and for plaintiff against Koch and Harms and awarded plaintiff $586 in damages. The jury returned a verdict for all the defendants against Particia Elliott. Plaintiff appeals the damage award and raises issues on the inconsistency of the verdict, jury instructions, admissibility of evidence, arguments of counsel, and questioning of witnesses. Patricia Elliott is not a party to this appeal. We affirm.

The parties in this appeal were traveling on War Memorial Drive in Peoria on December 14, 1985; plaintiff was driving eastbound; and defendants were traveling in separate cars westbound. Mines was stopped at the intersection of War Memorial and Cannes Drive, waiting to make a left turn onto Cannes Drive. Harms was traveling immediately behind Mines, and Koch was behind Harms. Harms testified he did not see any brake lights or turn signal on Mines' car and, therefore, as he approached Mines' car, he swerved to the left to avoid hitting Mines. There was no contact between Harms' car and Mines' car. Koch saw Harms swerve, but he could not stop before hitting Mines' car, pushing it across the center line of War Memorial into the left side of plaintiff's van.

Plaintiff, a meter reader for the Central Illinois Light Company (CILCO), testified he was traveling east on War Memorial on December 14 when he noticed Harms' car swerve to avoid Mines' car. Plaintiff testified Mines' car hit his van on the driver's door and slid down the side of the van to his left rear tire. Plaintiff stated he was knocked around in his van after the collision but remained in the driver's seat without striking any objects in the cab of the van. Plaintiff stated he remained at the accident scene for approximately one hour and a friend drove him to a hospital about 2 1/2 to 3 hours after the accident. In the emergency room, plaintiff was treated by Dr. Caffery. Caffery prescribed a muscle relaxant together with Tylenol with codeine and released plaintiff from his care.

Plaintiff saw his physician, Dr. Martin, on December 16, 1985. Plaintiff stated he was stiff and sore for a couple of days and the pain kept getting worse. Plaintiff continued to see Martin until he was released from his care on January 9, 1986. Plaintiff saw Dr. Adams in July 1986, after he experienced increased pain in his lower back while on vacation in Florida in May 1986. Plaintiff testified Adams ordered a CAT scan, which revealed a ruptured disc. According to plaintiff, Adams scheduled plaintiff for an appointment with Dr. Lister, a neurosurgeon. Plaintiff met with Lister but did not schedule surgery. Late in 1986, plaintiff went back to see Martin, who put plaintiff in contact with Dr. Weinger. Weinger performed a lower laminectomy on plaintiff's back in January 1987.

Plaintiff testified that before the accident in December 1985, he was very active in sports, especially tennis and skiing, and frequently went on long motorcycle trips with his wife. Plaintiff was very active in church activities with his wife prior to the accident but, after the accident, he could not participate and spent a lot of time sitting in bars. Plaintiff testified he had seen doctors in the past for back injuries but, in the three years before the accident, had not seen any doctors or suffered any pain in or injury to his back. Plaintiff testified that since his surgery in January 1987, he was still employed as a meter reader for CILCO but, because his back gets stiff, he has to do stretching exercises every couple of hours. Plaintiff also testified he had not participated in any sports since the accident, is unable to work around his house, and does not sleep well at night.

On cross-examination by Koch, plaintiff testified he did not recall an injury to his back in 1977. Plaintiff stated he did recall a back injury in November 1979, which occurred after he fell in the snow and injured his tailbone and left buttock. Plaintiff wore a back brace for a time after the 1979 back injury. Plaintiff also stated he injured his back in April 1981 and in January 1982. Plaintiff stated he was hospitalized by Dr. Holden in 1982 for the back injury. Plaintiff also stated from the day of the accident, December 14, 1985, to October 22, 1986, he did not miss a day of work or come in late to work. Plaintiff admitted that when he saw Dr. Martin in April 1986 for a bruised heel, he did not complain of back pain. Plaintiff stated he reads approximately 700 meters a day as a meter reader, some meters being grouped together either inside a building or outside. Plaintiff also reported he is on a bowling team at CILCO. Plaintiff continued to bowl after the accident for a time, started again after the surgery in 1987, and continued until December 1988. At the time of the accident, plaintiff stated he was thrown sideways in the van, but there was no impact in the back of the van.

On cross-examination by Harms, plaintiff stated that while at the scene after the accident on December 14, he did not have any trouble walking around. Plaintiff stated that while he did not miss any work between December 1985 and July 1986, he did quit early one day. Plaintiff stated he did not have any restrictions on his activities since the surgery in January 1987 and had not missed any work since March 1987. Plaintiff stated when he saw Adams in July 1986, he described his work for CILCO, which involves jumping over fences and other obstacles. Plaintiff denied he told Adams in July 1986 that his back pain increased after jumping over these fences. Plaintiff stated he gave Weinger a full medical history of his back problems, but did not recall giving a full history to Adams, Martin, or Holden.

On further cross-examination by Koch, plaintiff admitted he wore the back brace on different occasions during 1980, 1981, and 1982. On redirect, plaintiff stated he gave the back brace away before the accident in December 1985.

Dr. Dennis R. Caffery, a general practice physician, testified by evidence deposition for the plaintiff. He examined plaintiff on December 14, 1985, in the emergency room of Methodist Hospital in Peoria. Plaintiff complained of lower back pain on the left side and Caffery found tenderness over the left lower lumbosacral spine. Caffery found some muscle spasms in plaintiff's lower back. A straight-leg test was positive on the left, establishing there was pain in plaintiff's lower back. Caffery found no objective findings of herniation and diagnosed lumbosacral strain. Caffery stated if he had seen any indication of herniation he would have ordered a magnetic resonance imagery (MRI) test and CAT scan, the diagnostic tests performed when herniation is suspected. Caffery told plaintiff to see his physician, Dr. Martin. Caffery stated that on December 14 he had no knowledge of plaintiff's prior back injuries. Caffery also testified it was possible that plaintiff suffered an acute herniated disc on December 14, 1985.

On cross-examination, Caffery also stated he did not know an acute diagnosis of herniated disc in plaintiff's back had not been made until July 8, 1986, when Dr. Adams examined plaintiff.

Dr. Robert Martin, a physician specializing in occupational medicine, testified for plaintiff. When he examined plaintiff on December 16, 1985, plaintiff told Martin he had been in a three-car accident and he had pain in his lower back. On December 16, Martin found that plaintiff had tightness in his left lower lumbosacral muscles, which indicates muscle spasms, but is not unusual with a herniated disc injury. A straight-leg test was positive at 90 degrees on the left, indicating irritation of the sciatic nerve. Martin found no objective findings indicating herniation of a disc.

Martin's diagnosis on December 16 was lumbosacral strain. After reviewing the CAT scan ordered by Dr. Adams in July 1986, Martin concluded plaintiff's herniated disc was caused by the December 1985 accident. Martin stated with herniated discs, the signs of herniation do not always show up immediately and, therefore, it is difficult to distinguish between muscle strain and herniation. Martin stated herniation occurs at the point of trauma or shortly thereafter. Martin stated plaintiff suffered a disruption of the annular fibers in the disc on December 14 and, as time passed, the herniation progressed. Martin stated the predominant symptom of herniation is back pain. Martin stated he referred plaintiff to Weinger in December 1986 after plaintiff's condition worsened after treatment by Dr. Adams.

On cross-examination by Koch, Martin stated plaintiff did not tell him about his preexisting back injuries at the first visit and Martin did not inquire about them until the second or third visit. Martin admitted a person can experience back pain without having a herniated disc. Martin also admitted that plaintiff's back injury in 1982 was significant because plaintiff was (1) removed from the accident scene by ambulance, (2) hospitalized for six days, and (3) upon his release,...