Scholle v. Continental Nat. American Group

• Decision Date: 22 November 1976
• Docket Number: No. 75--513,75--513
• Citation: 44 Ill.App.3d 716,358 N.E.2d 893,3 Ill.Dec. 350
• Parties: , 3 Ill.Dec. 350 Matthew J. SCHOLLE, Administrator of the Estate of Rita M. Scholle, Plaintiff-Appellee, v. CONTINENTAL NATIONAL AMERICAN GROUP, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 893

358 N.E.2d 893

44 Ill.App.3d 716, 3 Ill.Dec. 350

Matthew J. SCHOLLE, Administrator of the Estate of Rita M Scholle, Plaintiff-Appellee, v. CONTINENTAL NATIONAL AMERICAN GROUP, Defendant-Appellant.

No. 75--513.

Appellate Court of Illinois, Second District, First Division.

Nov. 22, 1976.

Supplemental Opinion on Denial of Rehearing Jan. 20, 1977.

Lord, Bissell & Brook, John J. Berwanger, David C. McLauchlan and Richard E. Mueller, Chicago, for defendant-appellant.

Sullivan, Smith & Hauser, Richard J. Smith, Waukegan, for plaintiff-appellee.

SEIDENFELD, Justice:

The plaintiff recovered a judgment for damages in the amount of $30,000 for the accidental death of Rita M. Scholle who was insured against accidental death by the defendant. Defendant's motions for judgment notwithstanding the verdict or in the alternative for a new trial were denied and defendant appeals. It contends that the evidence most favorable to the plaintiff did not prove that death was caused by an accident. In addition, defendant claims that the court committed reversible error in restricting cross-examination of plaintiff's medical expert. There is no argument as to the construction of the terms of the policy.

The record includes testimony that the decedent was a 32 year old woman who, on October 30, 1971, fell from a platform surrounding her swimming pool. She had been standing on the platform using an eight foot skimming net to remove floating leaves from the pool. She fell a distance of two and one-half feet, striking some decorative stones which surrounded the pool.

Her husband, Matthew Scholle, testified he saw her on the ground and helped her up. She told him she had been reaching with the net for some leaves and lost her balance, started to fall into the water, overcompensated and fell backward off the deck. She stated at the time that she was 'O.K.' but noted a little soreness in her head and neck area. Mr. Scholle also noted a slight redness in that area but there were no bruises or breaks in the skin. They completed storage of various items connected with the pool but canceled their plans for the evening because Mrs. Scholle complained of a headache and of not feeling well. The next morning they dressed and went to church for an early morning mass. Upon returning home Mrs. Scholle prepared breakfast for herself, her husband and some workmen who were in the process of winterizing the swimming pool. She was not able to finish breakfast herself and went to bed complaining of a headache and a stiff neck.

Mrs. Scholle got up later that afternoon and both she and her husband decided to go to a restaurant to eat. Shortly after getting dressed she complained of the worst headache she had ever had and collapsed. Her husband helped her into the bedroom and later that night she was taken to the hospital by a rescue squad. There was testimony that prior to her fall Mrs. Scholle had been physically active and in apparent good health.

Dr. Alan Minster who specialized in neurosurgery testified for plaintiff. On direct examination he stated he first examined Mrs. Scholle in the hospital on November 3, 1971. He took a medical history primarily from Rita Scholle's husband but as to which Mrs. Scholle nodded her agreement. She stated that when she fell and struck her head she was not 'knocked out' but she had a headache afterwards and the rest of the evening and the following morning she had a headache and felt strange. Some time the following day she had a sudden terrible headache, the worst headache she had ever had in her life. Her next recollection was when she was in the hospital.

Dr. Minster conducted a neurological examination and found that Rita Scholle was awake and alert and complained of headache and a mild stiff neck. He found an abnormal neurological reflex called a bilateral Babinski response which indicated that something was wrong inside her head or spinal cord but 'is kind of a generalized problem.' He saw the reports of Dr. Rowley who had examined Mrs. Scholle when she first came to the hospital. Dr. Rowley performed a spinal tap, found the fluid to be bloody and recommended that she be seen by a neurosurgeon.

Dr. Minster's initial impression was that Rita was bleeding inside the head and that further tests would be required to find the cause of the bleeding. An angiogram test was made which showed that the patient had an aneurysm. The aneurysm was described as about one-half inch in size, a kind of ball or sac that bulges off a blood vessel inside the head. Dr. Minster characterized it as a berry aneurysm. He said there were no known tests to show how long the aneurysm had existed. He had planned an operation when very suddenly she became comatose and died on November 12, 1971, twelve days following her fall.

The doctor was asked the following questions and gave the following answers on direct examination:

'Q. Doctor, do you have an opinion to a reasonable degree of medical certainty based upon your experience and education and your treatment of patients and your treatment of Rita Scholle as to whether or not the fall which you referred to and described in the medical history taken from the patient could or might have contributed in whole or in part to the rupture of the berry aneurysm?

A. Yes, I have.

Q. What is that opinion, Doctor?

A. I think it could have.

Q. Doctor, are there any existing medical techniques, tests, procedures by which the trauma experienced in that fall which you described in relating the medical history, can be ruled out as a cause of the rupture of the berry aneurysm?

A. No, sir.

Q. When aneurysms rupture, Doctor, again based upon your experience and your background, are they occasionally preceded by a leaking of the aneurysm and then the rupture, or maybe I'm not being clear, maybe--

A. You're being clear, but it's a question that cannot be answered yes or no because aneurysms are not found out usually until they rupture and what happens before they rupture no one really knows.

Q. Do you have an opinion, based upon a reasonable degree of medical certainty--and keep in mind I'm asking you about opinions, not tests--as to the symptoms that are caused or may be caused by a leaking aneurysm, slowly leaking aneurysm prior to rupture?

A. Yes.

Q. What is that opinion?

A. Well, if there is such a thing as a leaking aneurysm which is arguable in the medical community, it is thought that the symptoms would be headaches, stiff neck, a vague complaint of something being wrong and possibly a slight troubles (sic) with thinking.'

On cross-examination the doctor gave an opinion based on a reasonable degree of medical certainty that Mrs. Scholle's aneurysm 'probably was' congenital; that the aneurysm could suddenly rupture without any warning and that upon rupture it would be possible for one to pass out and momentarily lose balance as an early sign of the rupture. He also stated that an aneurysm could break on its onw without known or obvious cause and that such a 'spontaneous' rupture was a common occurrence. He could not give an opinion based upon a reasonable degree of medical certainty whether Mrs. Scholle's aneurysm came from the trauma or whether it ruptured spontaneously. Defense counsel sought to elicit an answer that therefore the doctor was 'speculating' but an objection to the question was sustained.

Also on cross-examination, defense counsel attempted to suggest that the doctor had no basis for believing that the rupture occurred after the fall. He was asked if it were possible that the rupture originally could have occurred as a leak causing a momentary imbalance resulting in the fall. Dr. Minster responded that it was possible, but that he assumed otherwise because the symptoms followed the fall and because it would be unusual for loss of balance to precede the symptoms of a headache and stiff neck. Defense counsel's motion to strike the testimony of Dr. Minster was denied.

Dr. Zech, a pathologist, who performed the autopsy on Rita Scholle testified for the defendant. His essential findings were of 'massive intracranial hemorrhage due to a ruptured berry aneurysm involving the right middle cerebral artery.' It was his opinion that the aneurysm was a congenital defect in the wall of the vessel. He could not give an opinion based on a reasonable degree of medical certainty as to what caused the rupture of the aneurysm. On cross-examination he stated that an aneurysm could be present without any symptoms or effect on a person; and that an aneurysm can rupture with a slow leak which would generally produce symptoms such as stiffness of the neck, headaches, and dizziness.

Dr. Kent, a physician and pathologist, also testified for the defendant. He said that the fall of a hypothetical person was symptomatic of the rupture of the aneurysm. However, he admitted that no one could tell with certainty what an independent fall would do to the aneurysm. He said that when an aneurysm is about to rupture, 'when it leaks', that it causes symptoms which include headaches, nausea, vomiting, dizziness and loss of control.

Defendant argues that the medical evidence is insufficient to prove the causal relationship between the fall and the rupture of the aneurysm without speculating. Essentially the defendant reasons that the jury cannot infer a conclusion that the fall caused the aneurysm to break when plaintiff's medical expert was unwilling to reach the same conclusion.

[1,2] The plaintiff was, of course, required to produce evidence, direct or circumstantial, supporting the allegation that there was a causal relationship between the fall and the ruptured aneurysm. 'Liability may not be based on imagination, speculation, or mere conjecture * * *.' (Tiffin v. The Great A. & P. Tea Co., 18 Ill.2d 48, 60, 162 N.E.2d 406, 412 (1959). See also Cannell v. State Farm Fire & Casualty Co., 25 Ill.App.3d 907, 911--13, 323 N.E.2d 418 (1975).) If the causal relationship is based on circumstantial...