Peach v. McGovern

• Decision Date: 25 January 2019
• Docket Number: Docket No. 123156
• Citation: 129 N.E.3d 1249,432 Ill.Dec. 706,2019 IL 123156
• Parties: William Kevin PEACH, Appellee, v. Lynsey E. MCGOVERN, Appellant.
• Court: Illinois Supreme Court

2019 IL 123156

129 N.E.3d 1249

432 Ill.Dec. 706

William Kevin PEACH, Appellee,

v.Lynsey E. MCGOVERN, Appellant.

Docket No. 123156

Supreme Court of Illinois.

Opinion filed January 25, 2019

Edward L. Adelman, Robert M. Susman, and Lori R. Koch, of Goffstein, Raskas, Pomerantz, Kraus & Sherman LLC, of St. Louis, Missouri, for appellant.

George R. Ripplinger, of Ripplinger & Zimmer, LLC, of Belleville, for appellee.

Martin K. Morrissey and Michael J. Bedesky, of Reed, Armstrong, Mudge & Morrissey, P.C., of Edwardsville, and Steve Grossi, of Bruce Farrel Dorn & Associates, of Chicago, for amicus curiae Illinois Association of Defense Trial Counsel.

JUSTICE NEVILLE delivered the judgment of the court, with opinion.

¶ 1 Plaintiff William Kevin Peach, a motorist whose vehicle was rear-ended, sued the other driver, defendant Lynsey E. McGovern, in the circuit court of Marion County for personal injuries he sustained in the accident. The jury entered a verdict in favor of defendant, and the circuit court entered judgment on that verdict. The appellate court reversed and remanded for a new trial on damages, holding that the circuit court erred in allowing admission of postaccident photographs of the vehicles absent expert testimony and that the jury verdict was not supported by the evidence. 2017 IL App (5th) 160264, 419 Ill.Dec. 241, 92 N.E.3d 950. This court allowed defendant's motion for leave to appeal. Ill. S. Ct. R. 315 (eff. Nov. 1, 2017). For the following reasons, we reverse the judgment of the appellate court.

¶ 2 I. BACKGROUND

¶ 3 Plaintiff brought a claim for injuries alleging that defendant was negligent when she rear-ended his vehicle, thereby causing injury to plaintiff's neck. The following evidence was adduced at the jury trial.

¶ 4 On July 17, 2010, at approximately 10 p.m., plaintiff was on his way home from visiting his girlfriend, Nicole Carter. As he was driving his 1985 Nissan pickup truck, he had to stop at a stop sign at North Shelby Street and East Main Street in Salem, Illinois. While waiting at the stop sign for traffic to clear, the rear of plaintiff's truck was struck by defendant's vehicle. Plaintiff testified that, when the collision occurred, his head hit the back window of his truck, and his neck began hurting immediately.

¶ 5 The vehicle that rear-ended plaintiff's truck was a 2001 Mitsubishi Eclipse driven by defendant, who was also on her way home. Defendant, testifying as an adverse witness, stated that she saw plaintiff stopped at a stop sign. She then fully stopped behind plaintiff's truck. Defendant testified that she "spaced out" and let her "foot off the brake just a little bit, [and] tapped into his truck." She never pressed the gas pedal once she had stopped.

¶ 6 After the accident, both plaintiff and defendant got out of their vehicles to inspect the damage, and eventually both walked away from the collision. Plaintiff testified that his back bumper was dented and "it looked like defendant's front end was cracked a little bit." Defendant testified that the license plate on her car was bent. Although the front bumper of defendant's car had a crack, it was never determined if the accident caused this crack. Both plaintiff and defendant testified that the photographs taken of their respective vehicles subsequent to the accident were accurate representations of the condition of their vehicles immediately after the accident. The photos reflected minor damage to both vehicles. All of the photos were admitted into evidence, over plaintiff's objections.

¶ 7 Plaintiff testified that defendant was unwilling to call the police or exchange information. Instead, defendant left the scene. However, plaintiff was able to get her license plate number. Plaintiff drove back to Carter's residence because his neck was hurting, he had a headache, and he felt as if he was in a daze.

¶ 8 Carter testified that plaintiff came back to her home about 15 minutes after he had left. He appeared to be disoriented and was complaining of "a severe headache and a lot of pain." She testified that plaintiff stated he had been "plowed" into and that defendant was on her cell phone. Carter drove plaintiff to the emergency room of the Salem Township Hospital, in Salem, Illinois. She testified that 5 ½ years after the accident, plaintiff still complained of neck pain and once or twice every other day he would take Tylenol

and lie down to alleviate the pain.

¶ 9 Plaintiff testified that, while he was in the emergency room, the staff put him in a neck collar and put him on a backboard.

The staff did blood work and various tests. The staff also contacted the police so that an accident report could be made.

¶ 10 Plaintiff testified that since the accident occurred he has experienced chronic neck pain. A few days after the accident, plaintiff sought treatment from his family physician, Dr. Luecha Rutngamlug. Plaintiff was given steroids and a neck brace, but nothing helped. Plaintiff underwent a magnetic resonance image (MRI) of his cervical spine on September 16, 2010. He was referred to Dr. Michael Templer, a pain management specialist at the Orthopaedic Center of Southern Illinois in Mount Vernon. Plaintiff further testified that even now, six years later, he still has neck pain and every three to four days he has to rest because of the pain. He also testified that at the time of trial his medical bills exceeded $23,000. Regarding plaintiff's vehicle, he testified that as a result of the accident, three or four days after the accident, the brackets on his truck bed failed and the truck was thereafter no longer drivable.

¶ 11 Dr. Templer's testimony was presented in an evidence deposition. He was board certified in anesthesiology and pain management. Dr. Templer testified that he began seeing plaintiff on October 5, 2010, three months after the accident. Plaintiff had filled out a preexamination form in which he stated that his chief complaint was neck pain as the result of being rear-ended in a car accident with the estimated speed of impact at 25 to 30 miles per hour. At that first meeting, Dr. Templer did a physical examination of plaintiff and found "some tenderness in his upper trapezius muscle, splenius capitis, paraspinal region." Dr. Templer explained that plaintiff had tenderness throughout his entire neck.

¶ 12 Dr. Templer also reviewed the MRI provided by plaintiff, which revealed that plaintiff was suffering from some degenerative changes that had accumulated over the years but also from more recent acute injuries. Specifically, the MRI showed a straightening of the normal cervical lordosis

, which is consistent with neck muscle spasm and pain, moderate right stenosis foraminal narrowing that could give a person some pain into the right upper trapezius muscle, and compression of the nerves in the spinal cord. Plaintiff also had cervical sprain or strain, which is consistent with a whiplash injury. Dr. Templer prescribed a tapering dose of steroids, an anti-inflammatory medication and recommended a medial branch block injection, which would numb the nerves. The branch block was administered on November 11, 2010. Neither of these treatments helped plaintiff's neck pain. The last time Dr. Templer saw plaintiff was on December 2, 2010, when plaintiff was offered a second medial branch block or an epidural injection. He declined both.

¶ 13 Dr. Templer's final diagnosis was "[w]hiplash syndrome, chronic neck pain, cervical facet arthropathy

, cervical disc herniation, possible cervicogenic pain, cervical annular tear, and possible cervical radiculopathy, cervical foraminal stenosis, and cervical degenerative disc disease." He opined that the accident caused whiplash and may have caused an annular tear and loss of integrity of disc space. He explained that with whiplash, the neck moves beyond its typical range of motion and the overextension and flexion of the neck is the mechanism that causes the chronic pain. He stated that even a low-speed collision can cause hyperflexion/hyperextension injuries.

¶ 14 On cross-examination, after defense counsel asked if photos showing minor damage would have any effect on his diagnosis, Dr. Templer responded that he could not answer the question because it was not his expertise, as he was not a mechanical engineer. He stated that he was not "an expert in determining the damage done by a vehicle." He explained that he was relying on what plaintiff told him and the objective findings in the MRI. In answer to the question whether the findings in his diagnosis could have been caused by the accident he responded, "Yes." Over plaintiff's objections, in response to the question whether they might not have been caused by this accident, he responded, "Yes. That's true. It might not have been caused by the accident." Dr. Templer was also asked if some other event could have caused the findings, and he answered that "a lot of things could have happened" but he did not know of anything.

¶ 15 Garland Simmons, a sergeant with the Salem Police Department, testified that he was dispatched to the hospital where he spoke with plaintiff. Sergeant Simmons made an accident report and checked the vehicle registration of the license plate number he was given by plaintiff. He subsequently contacted defendant, and she admitted she had been involved in a vehicular accident. Defendant was ticketed for failure to reduce speed to avoid an accident and pled guilty to the offense. Sergeant Simmons further testified that plaintiff informed him there was minimal damage to both vehicles.

¶ 16 Defendant did not put on any witnesses. At the close of the evidence, the circuit court directed a verdict for plaintiff on the issue of negligence but reserved the questions of causation and damages for the jury. The jury subsequently returned a verdict in favor of defendant, awarding plaintiff zero damages. The circuit court denied plaintiff's motion for a new trial on the issue of damages and defendant's liability for those damages.

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