Soto v. Gaytan

• Citation: 245 Ill.Dec. 769,313 Ill. App.3d 137,728 N.E.2d 1126
• Decision Date: 25 April 2000
• Docket Number: No. 2-99-0327.,2-99-0327.
• Parties: Maricela SOTO, Plaintiff-Appellee, v. Juan GAYTAN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

728 N.E.2d 1126

313 Ill. App.3d 137

245 Ill.Dec. 769

Maricela SOTO, Plaintiff-Appellee, v. Juan GAYTAN, Defendant-Appellant.

No. 2-99-0327.

Appellate Court of Illinois, Second District.

April 25, 2000.

Robert E. Hillison, Rick Kenyon, Meade, Engelberg & Associates, Chicago, for Juan Gaytan.

Thomas M. Lake, Jeep & Lake, Waukegan, for Maricela Soto.

Justice GEIGER delivered the opinion of the court:

Following a jury trial, the plaintiff, Maricela Soto, was awarded the sum of $10,008.75 for personal injuries she sustained in an automobile accident with the defendant, Juan Gaytan. On appeal, the defendant argues that the trial court erred in permitting testimony from Dr. Joseph Cicmanec, the plaintiff's treating chiropractor, concerning the permanency of her injuries because Dr. Cicmanec's last examination of the plaintiff was not sufficiently recent to the time of trial. The plaintiff responds that the defendant has waived this issue because he allegedly failed to object to the testimony during the evidence deposition of Dr. Cicmanec. The plaintiff also argues that the testimony concerning permanency was proper.

Prior to trial, the plaintiff had taken the evidence deposition of Dr. Cicmanec. Dr. Cicmanec testified that he had been a chiropractic physician for 21 years. The plaintiff presented to him on October 17, 1995, with pain and stiffness in her spine, mid-back, and low back. Following his first examination of the plaintiff, Dr. Cicmanec diagnosed her as having a "sprain/strain syndrome of the neck, cervical region and a sprain/strain syndrome of the low back or lumbar region." He then began a treatment of "physical therapy modalities," including electrical stimulation, ultrasound, trigger point therapy, and manipulation to the plaintiff's neck and back.

Dr. Cicmanec testified that he had treated the plaintiff on 13 occasions for the neck and back strains between October 26, 1995, and the last day he saw her, which was April 26, 1996. On that day, the plaintiff had low-back pain and stiffness as well as neck and shoulder pain, but "was doing somewhat better." Dr. Cicmanec testified that the plaintiff was not responding to the treatments "to the degree that I would have liked and prognosis was at best guarded."

When the plaintiff asked Dr. Cicmanec whether the plaintiff's injuries in her neck and low back were permanent, the defendant objected. Dr. Cicmanec responded that "if the [plaintiff] continues to have problems in the same areas, similar complaints after this long period of time I think it would be reasonable to assume that it was a permanent condition."

On October 19, 1998, the defendant filed a motion in limine requesting that the plaintiff refrain from presenting evidence concerning her medical prognosis absent testimony from a medical practitioner about a recent examination. The trial court granted the motion in limine. The trial court, however, overruled the defendant's objection to testimony from Dr. Cicmanec concerning the permanency of the plaintiff's injuries.

On October 20, 1998, the jury trial began, and Dr. Cicmanec's deposition, including the testimony concerning permanency, was read to the jury. The trial court entered judgment on a jury verdict in favor of the plaintiff in the amount of $10,008.75 plus costs. The jury itemized the damages as follows:

Pain and suffering from the date of the accident to present: $5,000 Future pain and suffering: $3,200 Medical care and services: $1,568 Lost wages: $ 240

The defendant later filed a posttrial motion, alleging that Dr. Cicmanec's testimony concerning permanency was improper because Dr. Cicmanec's last examination of the plaintiff occurred approximately 30 months prior to trial. The trial court denied the defendant's posttrial motion, ruling that "the evidence was sufficient to submit the issue of permanency to the jury."

On appeal, the defendant argues that the trial court erred in allowing the testimony of Dr. Cicmanec concerning the permanency of the plaintiff's injuries. The plaintiff responds that, as an initial matter, the defendant has waived this argument because he failed to object to the testimony during Dr. Cicmanec's evidence deposition and at the time the deposition was read to the jury.

The appellate court may only review the admissibility of testimony for error if the opposing party objected to the testimony at trial. Miller v. Rokita, 131 Ill.App.3d 774, 779, 86 Ill.Dec. 850, 476 N.E.2d 26 (1985). From a review of the record, it is clear to us that the defendant did in fact object to the testimony concerning permanency during Dr. Cicmanec's evidence deposition. It is equally clear to us that the plaintiff has caused this court to spend unnecessary time addressing this issue on account of this misrepresentation of the facts in the plaintiff's appellate brief. Moreover, the plaintiff cites no authority that suggests that once an objection in an evidence deposition is ruled upon by the trial court the objecting party must object again when the testimony is read to the jury in order to preserve the objection for appellate review. We are convinced that no such authority exists, as such an absurd rule would frustrate the very reason why evidence deposition objections are ruled upon by the trial court in advance of trial. Having dispensed with the plaintiff's argument that the defendant has waived the objection to the testimony concerning permanency, we now turn to the merits of whether the testimony by Dr. Cicmanec was properly admitted. The defendant argues that the trial court abused its discretion in admitting the testimony because Dr. Cicmanec's last exam of the plaintiff was not sufficiently recent to the time of trial. The plaintiff responds that Dr. Cicmanec's testimony was properly admitted and that the recency of Dr. Cicmanec's last exam was an issue that went to the weight of the testimony.

We begin our review of the relevant case authority by noting the existence of differing approaches among the appellate court districts when analyzing whether an examination by the testifying medical treater must be recent to the time of trial in order for testimony concerning the permanency of the injury to be admissible. Several decisions have held that a recent exam is a precursor to the admissibility of the opinion. See Knight v. Lord, 271 Ill.App.3d 581, 587, 207 Ill.Dec. 917, 648 N.E.2d 617 (1995); Henricks v. Nyberg, Inc., 41 Ill. App.3d 25, 28, 353 N.E.2d 273 (1976). Other opinions have looked to a multitude of factors, in addition to the time interval between the last exam and the time of trial, in answering this question of the admissibility of the testimony. See Housh v. Bowers, 271 Ill.App.3d 1004, 208 Ill.Dec. 449, 649 N.E.2d 505 (1995); Marchese v. Vincelette, 261 Ill.App.3d 520, 526, 199 Ill. Dec. 81, 633 N.E.2d 877 (1994); Courtney v. Allied Filter Engineering, Inc., 181 Ill. App.3d 222, 129 Ill.Dec. 902, 536 N.E.2d 952 (1989).

It is well settled that an opinion held by an expert at the time of trial is the only opinion evidence that may be considered by the trier of fact. Henricks v. Nyberg, 41 Ill.App.3d 25, 28, 353 N.E.2d 273 (1976). In Henricks, the court considered whether testimony by a physician that the plaintiff's prognosis was guarded was admissible when the last time the physician had examined the plaintiff was three years before trial. The court held that, because expert opinion testimony must be founded upon facts and not conjecture, an opinion at trial based upon an examination conducted three years prior would be unreliable and therefore improper. Henricks, 41 Ill.App.3d at 28, 353 N.E.2d 273. The court was persuaded that the physician's testimony concerning the prognosis he made three years prior could not represent an opinion that he held at the time of trial. Henricks, 41 Ill. App.3d at 28, 353 N.E.2d 273.

In Thurmond v. Monroe, 235 Ill.App.3d 281, 291, 176 Ill.Dec. 350, 601 N.E.2d 1048 (1992), the court considered whether a gap of "several years" between the time of the examination and the time of trial was too great to permit testimony from a treating physician concerning the permanency of the plaintiff's injuries. The court noted that no Illinois court had barred testimony concerning permanency due to the length of time from the examination. In an attempt to distinguish the holding in Henricks, the Thurmond court reasoned that, in Henricks, the testimony had concerned the prognosis of the plaintiff rather than the permanency of the injuries. Because the testimony in Thurmond concerned permanency rather than prognosis, it was irrelevant to the Thurmond court that there had been a gap of several years between the time of the physician's examination and the time of trial. Thurmond, 235 Ill.App.3d at 291, 176 Ill.Dec. 350, 601 N.E.2d 1048. Therefore, the Thurmond court permitted the testimony concerning permanency.

The distinction set forth by the Thurmond court between testimony concerning prognosis and testimony concerning permanency was eradicated by the court in Marchese v. Vincelette, 261 Ill.App.3d 520, 526, 199 Ill.Dec. 81, 633 N.E.2d 877 (1994). The Marchese court rejected as unsound any supposed distinction between "permanency" and "prognosis," ruling that any attempted distinction was "one of semantics rather than substance." Marchese, 261 Ill.App.3d at 525, 199 Ill.Dec. 81, 633 N.E.2d 877; see also Knight, 271 Ill. App.3d at 586,207 Ill.Dec. 917,648 N.E.2d 617.

In Marchese, the court considered whether the trial court had abused its discretion in permitting testimony concerning the permanency of the plaintiff's injuries where there had been a 15-month gap between his last examination and the time of trial. The court noted that 15 months "can hardly be considered `recent' "but further noted that the physician had treated the plaintiff "over a period of years." Marchese, 261 Ill.App.3d at 526, 199 Ill.Dec. 81, 633 N.E.2d 877. Following the admission of such testimony, the...