Gillespie v. Chrysler Motors Corp.

• Decision Date: 22 March 1990
• Docket Number: No. 68042,68042
• Citation: 553 N.E.2d 291,135 Ill.2d 363,142 Ill.Dec. 777
• Parties: , 142 Ill.Dec. 777 Phillip J. GILLESPIE, Appellee, v. CHRYSLER MOTORS CORPORATION, Appellant.
• Court: Illinois Supreme Court

Page 291

553 N.E.2d 291

135 Ill.2d 363, 142 Ill.Dec. 777

Phillip J. GILLESPIE, Appellee, v. CHRYSLER MOTORS CORPORATION, Appellant.

No. 68042.

Supreme Court of Illinois.

March 22, 1990.

John C. Berghoff, Jr., John E. Muench and James C. Schroeder, Mayer, Brown & Platt, Chicago; Joseph B. McGlynn, Jr., McGlynn & McGlynn, Belleville; and C. Dale Hubbard, of Southfield, Michigan, for appellant.

Cook, Shevlin, Keefe & Ysursa, Belleville (Bruce N. Cook, of counsel), for appellee.

Justice STAMOS delivered the opinion of the court:

Plaintiff, Phillip J. Gillespie, was allegedly injured when the hood of a United Parcel Service (UPS) van he was servicing dropped on his back. Plaintiff brought suit against defendant, Chrysler Motors Corporation, alleging that a defective hood hinge manufactured by defendant and sold to UPS, which broke and caused the hood to fall on plaintiff, was the cause of his back injuries. After the presentation of all the evidence at trial, the circuit court of St. Clair County directed a verdict in plaintiff's favor on the issue of whether the hinge was unreasonably dangerous. The jury, however, returned a general verdict in defendant's favor after finding that the unreasonably dangerous hood hinge was not a proximate cause of plaintiff's injuries. The circuit court then granted plaintiff's post-trial motion for a new trial, holding that prejudicial error had occurred when defendant improperly impeached plaintiff with a prior statement and used the prior statement during its opening statement and closing argument. The appellate court affirmed the circuit court's order for a new trial. (178 Ill.App.3d 5, 7, 127 Ill.Dec. 46, 532 N.E.2d 875.) We granted defendant's petition for leave to appeal (107 Ill.2d R. 315).

PLAINTIFF'S MEDICAL HISTORY

Plaintiff was an auto mechanic who worked in a UPS facility. In February 1981, plaintiff suffered a lower back strain when he lifted a heavy rear spring on a UPS van. This injury was so severe that plaintiff spent five days in the hospital and missed two weeks of work. On March 7, 1981, plaintiff visited his treating physician, Dr. John Jemsek, for a follow-up examination. At this time Dr. Jemsek's nurse, Karen O'Dell, made a notation in plaintiff's medical record that "when he gets up in the truck he has to get up on his knees and pull himself up."

On March 9, 1981, plaintiff claimed that he had raised the hood of a UPS van to perform maintenance work. He noticed that the springs on one of the hinges were missing. While he was endeavoring to replace them, the rivet in the hinge broke, causing the hood to fall against plaintiff's back and pin him under the hood. Plaintiff was taken to the hospital, but was discharged later that evening. After examination and treatment by Dr. Jemsek, plaintiff missed a week of work. Plaintiff also saw a second physician, Dr. Gaylin Lack, on May 15, 1981, in connection with injuries plaintiff suffered after lifting another rear spring, similar to what occurred in February. Plaintiff claims the March 9 accident is the cause of his severe back injuries.

THE TESTIMONY AT TRIAL

During the trial, after plaintiff had rested his case, defendant took plaintiff's evidence deposition in the judge's chambers. The following exchange occurred:

"Q. Do you remember telling anybody on March 7th that when you get up in the truck that you have to get up on your knees and pull yourself up?

A. Not that I recall."

Plaintiff's evidence deposition was read to the jury without objection.

Dr. Jemsek's deposition was taken in a similar fashion. His testimony revealed that, prior to plaintiff's back problems in 1981, he had intermittently treated plaintiff for back pain from April 1975 through June 1977. During the course of questioning "Q. Doctor, let me show you what I have * * *. Could you tell me what this is a copy of?

[142 Ill.Dec. 780] Dr. Jemsek, plaintiff objected to any testimony concerning the nurse's note; the trial court sustained the objections on hearsay grounds. Therefore, any direct references to the nurse's note were not read to the jury. The relevant portion of the deposition, with the material excluded by the trial court in italics, is as follows:

A. This is a copy of my history and physical * * * when [plaintiff] was admitted on the 17th of February, 1981. * * *

Q. What history did you obtain on that occasion?

A. Well, he came into the office on the 16th and he was complaining about severe pain in his lower back and upper thighs and with difficulty in getting up and down. He said this all started on the 13th of February, but then when it became worse then I put him in the hospital. He said he could hardly get up and down. He had to crawl instead of walk, and I felt he had an inflammation of the nerves of his back and legs, and so he was put in the hospital. * * *

Q. * * * [O]n February 16, 1981, * * * [w]hat were the result[s] of your examination [of plaintiff]?

A. Okay, then he had a great deal of tenderness, especially in the upper and medial thighs. Reflexes, however, were normal, as well as the knee jerks and muscle tone and strength. It was just when he tried to get out of bed he had difficulty in getting up without sliding one foot out, then getting the other foot out. He couldn't get out of bed abruptly and he had a great deal of difficulty raising both legs without a great deal of pain in the upper thighs. * * *

Q. Was he released to return to work under any treatment, either medication or exercises?

A. He was just on the Flexeril * * *. I did see him on the 7th of March. At that time he was checked in the office and he said he was fine as long as he was sitting or lying down, but when he tries to get up and move around, he had a little trouble. And he had to flex his knees, he said, when he got into the truck. So he was limping around. * * *

* * * * * *

Q. * * * [U]nder the entry [in your records] of March 7, [1981], the entry says 'when he gets up in the truck he has to get up on his knees and pull himself up'?

A. I mentioned that already.

MR. COOK [plaintiff's attorney]: Objection. Leading form of the question.

Q. Is that a verbatim quote from Mr. Gillespie or are you paraphrasing his condition?

A. Well, evidently, this is a note that my nurse got and then I put down my impression there by putting down 'limping around.'

* * * * * *

Q. Doctor, with regard to the comment, 'He was practically crawling because of pain,' taking that observation in conjunction with the nurse's note that he had to pull himself up into the truck, did you make any connection between the two in terms of how he was responding to treatment or care during this time from the 17th up to the 7th of March?

MR. COOK: Objection [withdrawn when deposition was read to jury], form of the question.

A. We just treated him. He got well." (Emphasis added.)

As just noted, during the deposition, plaintiff objected to the form of this final question before Dr. Jemsek answered. However, plaintiff withdrew the objection to allow the jury to hear this testimony, admittedly because plaintiff's counsel viewed the doctor's answer as favorable, in that the doctor said that plaintiff "got well."

The jury also heard the evidence deposition of Dr. Lack, which also contained a statement regarding the nurse's note:

"Q. Did he indicate to you that on March 7, 1981, approximately two days before he allegedly sustained an injury in this case, that he had reported to Dr. Jemsek's office and gave the nurse the A. No, I don't have a recollection or a documentation of that history."

                [142 Ill.Dec. 781] history that as long as he was sitting or lying he was okay, but when he tries to get up and move around he has a lot of trouble;  when he gets up in the truck he has to get up on his knees and pull himself up, and Dr. Jemsek related he was limping?   Did he relate that to you
                

Plaintiff did not object to this question during the deposition, and did not raise the issue when he used Dr. Lack's deposition in his case in chief.

Defendant also made reference to the note during closing argument, eliciting an objection from plaintiff. The trial court sustained the objection and instructed the jury that statements of counsel are not evidence.

Plaintiff testified that after the hood fell on him, he called for help, and two co-workers assisted him. Defendant called to the stand six of the seven other UPS workers who had been on duty at the facility where plaintiff worked at the time the accident allegedly occurred. All six denied that plaintiff called for help or that they had helped lift the hood off of plaintiff. Plaintiff did present evidence to indicate that the seventh employee, Kevin Crouch, had been one of the two persons who had removed the hood from plaintiff's back. However, Crouch had moved out of State, and was unavailable to testify because he was beyond plaintiff's subpoena power. Defendant's attorney used the unavailability of Crouch to defendant's advantage when he stated the following during closing: "I didn't hear an investigator take the stand and say, under oath, we looked all over for Kevin Crouch and couldn't find him." Plaintiff objected to this statement, but the trial judge overruled the objection.

After the jury returned a verdict in favor of defendant, plaintiff moved for a new trial. The trial court granted this motion, concluding that defendant's asking whether plaintiff had made the statement contained in the nurse's note was improper because defendant failed to prove the inconsistent statement contained in the nurse's note by calling the nurse to testify, and that this, combined with defendant's references to the nurse's note in opening statement and closing argument, constituted error so prejudicial that it warranted a new trial.

THE APPELLATE COURT OPINION

The appellate court, in affirming the trial court's order granting a new trial, first noted that a reviewing court will not overturn a decision on a motion for...