Maple v. Gustafson

• Decision Date: 04 June 1991
• Docket Number: No. 5-90-0151,5-90-0151
• Citation: 158 Ill.Dec. 425,214 Ill.App.3d 1065,574 N.E.2d 219
• Court: United States Appellate Court of Illinois
• Parties: , 158 Ill.Dec. 425 Carlos MAPLE and Mary Maple, Plaintiffs-Appellants, v. Mervin E. GUSTAFSON, Defendant-Appellee.

Page 219

574 N.E.2d 219

214 Ill.App.3d 1065, 158 Ill.Dec. 425

Carlos MAPLE and Mary Maple, Plaintiffs-Appellants, v. Mervin E. GUSTAFSON, Defendant-Appellee.

No. 5-90-0151.

Appellate Court of Illinois Fifth District.

June 4, 1991.

Rehearing Denied July 5, 1991.

Michael R. Bilbrey, Bono, Goldenberg, Hopkins, Bilbrey & Hendricks, P.C., Granite City, for plaintiffs-appellants.

Martin K. Morrissey, Curtis L. Blood, Reed, Armstrong, Gorman, Coffey, Thomson, Gilbert & Mudge, P.C., Edwardsville, for defendant-appellee.

Justice WELCH delivered the opinion of the court:

Plaintiffs Carlos Maple and Mary Maple appeal from a judgment against them and in favor of defendant, Mervin E. Gustafson, following a jury trial in the circuit court of Madison County. Plaintiffs had brought suit against defendant for personal injuries incurred when a car driven by plaintiff Carlos and in which plaintiff Mary was a passenger collided with a car driven by defendant. The trial court directed a verdict in favor of plaintiffs on the issue of negligence, leaving the issues of Carlos' contributory negligence, proximate cause, and damages for the jury. The jury returned a verdict in favor of defendant and against plaintiffs.

Plaintiffs appeal, raising three issues for our review: (1) whether the jury's verdict was contrary to the manifest weight of the evidence; (2) whether plaintiffs were prejudiced by the testimony of defendant's expert witness that the hospital at which defendant received a CT scan was predisposed to making diagnoses involving disk trauma; and (3) whether plaintiffs were prejudiced by the admission at trial of surprise evidence of previously undisclosed repairs to defendant's vehicle. Because we find that the jury's verdict in favor of defendant was against the manifest weight of the evidence and reverse on that basis, we need not discuss the other issues raised on appeal. They are unlikely to recur on retrial. (See Smith v. Metropolitan Sanitary District of Greater Chicago (1978), 61 Ill.App.3d 103, 107, 18 Ill.Dec. 452, 455, 377 N.E.2d 1088, 1091, aff'd (1979), 77 Ill.2d 313, 33 Ill.Dec. 135, 396 N.E.2d 524.) This cause is remanded on the issue of the amount of damages only.

Plaintiffs claim injuries as a result of a vehicle collision which occurred on October 8, 1986. Just prior to the collision, plaintiffs' vehicle was traveling 35 miles per hour. Defendant's vehicle pulled out in front of plaintiffs' vehicle and stopped. Carlos tried to stop his vehicle by braking, but collided with defendant's vehicle. Carlos and Mary were not thrown about the interior of the vehicle. Their vehicle received slight damage to the front bumper and grill. Defendant's vehicle received damage to the driver's door, which was repaired with used parts at an approximate cost of $900. Neither defendant nor his grandson who was with him was injured. Defendant's vehicle did not move as a result of the collision. At the time of the accident, plaintiffs did not think they were injured. After talking to a police officer at the scene, they proceeded to a McDonald's restaurant for coffee. Approximately one week later, plaintiffs began to experience pain in their necks and backs. One week thereafter, they sought treatment from a chiropractor.

Chiropractor Charles King testified that he first saw plaintiffs on October 21, 1986. Carlos was complaining of neck pain and low back pain which had grown steadily worse following the accident. At the time, Carlos weighed 300 pounds and was suffering from palpable cervical and lumbar muscle spasm. Carlos had decreased cervical and lumbar ranges of motion. Carlos was able to raise his legs only 45 degrees in the straight-leg maneuver, indicating some nerve root or disk pathology. X-rays revealed no fractures or dislocations of the spine. King began treatment of Carlos the next day. When Carlos failed to improve, King scheduled him for a CT scan at Wood River Township Hospital. The CT scan report from Wood River Township Hospital revealed a minimal bulging cervical disk, a bulging lumbar disk with minimal herniation, and two other herniated lumbar disks. King sent Carlos for a consultation with an orthopedic surgeon, Dr. Maurice Miller. King continued to treat Carlos, who improved over time. King released Carlos on July 10, 1987. King opined that Carlos' injuries were related to the car accident.

With respect to Mary, King testified that her X-rays revealed degenerative arthritis of the spine. She had suffered neck and low back injuries in a car accident in 1978. She had decreased range of cervical motion, palpable cervical spasm, and multiple trigger points. She had no palpable spasm in her low back, but had limited range of lumbar motion. Mary was treated conservatively to reduce inflammation and muscle spasm. Mary had slight improvement. She was released on June 3, 1987. King opined that the instant car accident aggravated Mary's preexisting degenerative arthritic condition.

The evidence deposition of Dr. Maurice H. Miller was read to the jury. Miller specializes in orthopedic surgery. He first saw Carlos on April 6, 1987, on referral from King. Carlos had a reduced range of motion in his cervical and lumbar spine. When subjected to a sensation test, Carlos described altered sensate over a cervical distribution and a lumbar distribution which corresponded with the particular disks shown to be bulging or herniated by the CT scans. Miller identified the CT scans taken of Carlos on February 13, 1987, at the Wood River Township Hospital. He testified that the scans were of good diagnostic quality. Miller testified that the scans indicated two bulging disks in the lumbar area, one bordering on herniation. The scans also revealed a bulging disk in the cervical area. Miller prescribed a pain killer for Carlos and recommended conservative treatment. Carlos' condition improved over time. Dr. Miller released Carlos on July 28, 1987.

Plaintiff Mary Maple testified that she was 63 years of age at the time of trial. She first began to experience pain in her neck and back approximately one week after the accident. She went to see King in response to an advertising flier she received in the mail. She improved under King's treatment. However, she still suffers from her injuries.

Plaintiff Carlos Maple also testified. He was 22 years old at the time of trial. He first began experiencing pain in his neck and back approximately one week after the accident. He testified to his continuing problems as a result of the accident. Plaintiff rested.

Defendant's first witness was his expert, Dr. Raymond Frederick. Just prior to his testimony, plaintiffs made an oral motion in limine to bar Frederick from testifying that the radiology department at Wood River Township Hospital and the results of its CT scans are unreliable. This motion was denied.

Dr. Frederick testified that he is a general surgeon. He examined Carlos Maple at defendant's request on August 31, 1987. As a result of the history he received from Carlos and his examination, Frederick opined that Carlos was not injured in the accident or was only slightly injured. Frederick was certain that some of Carlos' complaints were not a result of the accident. Carlos' obesity placed extra strain on his bones, joints, and muscles. Carlos' entire examination was normal. Frederick found no objective evidence of any injury and did not believe Carlos was physically impaired. The accident definitely was not related to Carlos' back symptoms, and any neck symptoms were mild and insignificant.

Frederick was asked, "Did you place any significance, I'll ask it this way, on the fact that Carlos Maple told you about a Wood River Township report with some kind of disks or something?" He responded "Only that they seemed very fond of making this diagnosis over there." Plaintiff's objection was sustained, the response was stricken, and the jury was admonished to disregard the remark. Frederick then stated, "How can I put it? They do make this diagnosis frequently at this particular hospital." Plaintiff's objection was again sustained and the jury was instructed to disregard the remark.

With respect to Mary Maple, Frederick testified that any injury she sustained in the automobile accident was minor. Frederick found Mary's complaints to be functional rather than organic and believed her symptoms were exaggerated. He found no evidence of any disk injury. Mary suffered from advanced degenerative arthritis of her entire spine as a result of the aging process which caused pain and stiffness. The arthritis was not connected to the accident in any way. Frederick found no objective evidence of any soft tissue injury or muscular strain. Mary's arthritis accounted for her complaints.

On cross-examination, Frederick testified that he is not qualified to read CT scans. X-rays do not show the disk area of the spine; CT scans do. Frederick did not review Carlos' CT scans. On redirect examination, Frederick testified that CT scans are not infallible and the results may vary depending on who reads them.

Defendant testified that the day after the accident he had a minor repair made to the latch on the driver's door so that it would open and close. Eventually, the entire door had to be replaced, but this repair was not done until later. On cross-examination, plaintiffs asked defendant why he had failed to reveal the repair to the latch in his deposition. Defendant replied that he had not been asked about it and it was a minor adjustment which cost only $30.00. In closing argument, plaintiffs' counsel argued that defendant had tried to hide from the plaintiffs and the jury the repair to the door latch in order to minimize the damage to the car and the severity of the collision and therefore the extent of plaintiffs' injuries. He argued that the photographs of defendant's car after the accident did not accurately depict the extent of damage, as plaintiffs had testified, because they had...