Wiker v. Pieprzyca-Berkes

• Decision Date: 20 June 2000
• Docket Number: No. 1-99-0045.,1-99-0045.
• Citation: 732 N.E.2d 92,314 Ill. App.3d 421,247 Ill.Dec. 376
• Parties: Judith WIKER, Plaintiff-Appellant, v. Mary Beth PIEPRZYCA-BERKES, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

732 N.E.2d 92

314 Ill. App.3d 421

247 Ill.Dec. 376

Judith WIKER, Plaintiff-Appellant, v. Mary Beth PIEPRZYCA-BERKES, Defendant-Appellee.

No. 1-99-0045.

Appellate Court of Illinois, First District, Second Division.

June 20, 2000.

David E. Schwartz, Kralovec, Jambois & Schwartz, Chicago, for Plaintiff-Appellant.

Aaron T. Shepley, Swanson, Martin & Bell, Chicago, for Defendant-Appellee.

Presiding Justice COUSINS delivered the opinion of the court:

The plaintiff brought this tort action seeking compensation for injuries that she allegedly suffered as a result of an automobile collision. The plaintiff rejected an arbitration award and went to trial. At trial, the court denied the plaintiff's motion for a directed verdict on the issue of liability. The jury ruled in favor of the defendant. The plaintiff filed a motion for judgment notwithstanding the verdict, or in the alternative a new trial. The trial court denied the motion.

The plaintiff now appeals, arguing that: (1) the evidence so overwhelmingly favored her case that it was error for the trial court not to grant her judgment notwithstanding the verdict; (2) alternatively, the trial court should have ordered a new trial because the jury's verdict was against the manifest weight of the evidence; (3) evidence of injuries sustained by the plaintiff in a prior auto accident should not have been admitted without a showing by the defendant that those injuries could be the cause of her current maladies; (4) the trial court erred in barring admission of certain medical bills that the plaintiff introduced late; (5) she is entitled to a new trial because the defendant did not disclose in discovery a surveillance video; (6) the trial court erred in sustaining two objections to plaintiff's closing argument; and (7) the trial court erred in requiring the jurors to deliberate further when they sent the judge a note indicating that they were deadlocked.

BACKGROUND

On the afternoon of March 27, 1991, Judith Wiker, the plaintiff, was driving her sport utility vehicle (SUV) on Lakeshore Drive in Chicago. When she was stopped in traffic, the car of Mary Beth Pieprzyca-Berkes, the defendant, collided with the rear of the plaintiff's SUV. The accident caused no significant damage to the SUV. The grill of the defendant's car popped out and one headlight was broken. The plaintiff testified at trial that in the collision her head was thrown back and hit the headrest.

Since the accident the plaintiff has seen a number of health care providers. Immediately after the accident, she claims, she began to have head, neck and back problems. The next day she saw a chiropractor, Dr. William Schenck, complaining of low back pain, neck pain, a headache, disorientation, a choking sensation and difficulty swallowing. Although she said that these problems started the previous day, she also indicated that she had had episodes of neck and hip pain after a previous accident three years before. Dr. Schenck noted that the plaintiff's thyroid gland was somewhat swollen.

She continued with Dr. Schenck for treatment, seeing him about 20 times before he moved to Vermont. He recommended a nutritional supplement for the thyroid condition and other types of therapy for the back and neck pain. After Dr. Schenck left, his partner, Dr. Luke Maes, took over treatment of the plaintiff. The plaintiff became dissatisfied with Dr. Maes' treatment and went to another chiropractor, Dr. Frank Fiala, who started her on a course of physical therapy. Dr. Fiala referred her to an orthopedic surgeon, Dr. Michael Zindrick. Dr. Zindrick saw the plaintiff once. His testing revealed only minor cervical and lumbar sprain, as well as some degenerative changes in the back which he thought predated the auto accident.

Dr. Fiala told the plaintiff that he had given her all the treatment that he could for her pain. In early 1993, the plaintiff went to see Dr. Grant Seivertsen, an endocrinologist, about her thyroid condition. Dr. Seivertsen diagnosed her as having Hashimoto's hypothyroidism, an autoimmune disorder, but he did not think it had anything to do with the auto accident.

Dr. Maria Hofmaier, another chiropractor, saw the plaintiff once and referred her to Dr. Henry Echiverri. Dr. Echiverri was a neurologist who saw the plaintiff twice. His opinion was that the plaintiff had cervical strain-sprain, a herniated disk and post-concussion injury.

The plaintiff went to see two out-of-state doctors whom she knew had done work associating hypothyroidism with neck trauma. First she went to a doctor in Boston named Rothfield, and then to Dr. Keith Sehnert in Minnesota. At the time of trial, the plaintiff was seeing a chiropractor, Dr. Donald Backstrom, on a regular basis. In answer to questions asked on cross-examination, he stated that he had not yet been paid but would expect to be paid if the plaintiff won.

Dr. Sehnert testified at trial that in his opinion the plaintiff's thyroid condition was a result of the automobile accident. However, Dr. Berlinger, an expert witness for the defendant, testified that the type of injury sustained by the plaintiff could not cause hypothyroidism.

The plaintiff requested a directed verdict on the issue of liability, but the trial court denied the motion. The jury found for the defendant. The plaintiff moved for judgment notwithstanding the verdict or in the alternative a new trial. The trial court denied this motion, and the plaintiff now appeals.

ANALYSIS

I

The plaintiff first contends that the trial court erred in denying her motion for judgment notwithstanding the verdict or, in the alternative, a new trial. A motion for judgment notwithstanding the verdict should only be granted when all the evidence, viewed in the light most favorable to the nonmoving party, so overwhelmingly favors the movant that no contrary verdict could ever stand based on that evidence. Lake v. Bertrand, 215 Ill. App.3d 578, 580, 158 Ill.Dec. 979, 574 N.E.2d 1372, 1373 (1991). A motion for a new trial should only be granted when the verdict is against the manifest weight of the evidence. Moran v. Erickson, 297 Ill. App.3d 342, 352, 231 Ill.Dec. 484, 696 N.E.2d 780, 787 (1998). A court's ruling on a motion for a new trial will only be disturbed if it constitutes an abuse of discretion. Moran, 297 Ill.App.3d at 353, 231 Ill.Dec. 484, 696 N.E.2d at 787.

In this case, the plaintiff argues that the defendant's testimony on cross-examination established her negligence as a matter of law.

"Q. As I understand your testimony, you were not looking directly ahead at Judith's car, correct, when traffic started to move?

A. Correct.

Q. Because had you been looking forward, you would have seen her car and not hit it, correct?

A. Correct."

The plaintiff notes that a driver has a duty to maintain a proper lookout for traffic ahead. Glenn v. Mosley, 39 Ill. App.3d 172, 176, 350 N.E.2d 219, 222 (1976). And while a rear-end collision does not establish per se a defendant's negligence, it is certainly very strong evidence of negligence. Glenn, 39 Ill.App.3d at 176, 350 N.E.2d at 222.

In order to establish liability, however, the plaintiff was required to do more than demonstrate that the defendant was negligent. See Moran, 297 Ill.App.3d 342, 231 Ill.Dec. 484, 696 N.E.2d 780 (verdict for defendant sustained even though defendant admitted negligence). A plaintiff in a negligence action must show the breach of a duty of care, proximate causation and compensable damages. Ogle v. Fuiten, 112 Ill.App.3d 1048, 1052, 68 Ill. Dec. 491, 445 N.E.2d 1344, 1347 (1983). In this case, there was evidence to support the jury's verdict on the basis of lack of causation.

First, there was ample evidence that the automobile accident did not cause the plaintiff's thyroid problems. Dr. Berlinger, the defense's expert witness in endocrinology, testified that it was impossible for the type of injury that the plaintiff sustained to cause hypothyroidism. Moreover, the plaintiff's endocrinology expert admitted on cross-examination that his assertion that a blow to the neck could cause Hashimoto's thyroiditis was only a hypothesis and would take many years to prove.

Second, there was evidence that the accident did not cause the problems with the plaintiff's spine. There was no damage to the plaintiff's vehicle and only superficial damage to the defendant's vehicle. The plaintiff did not complain of injury at the time of the accident and did not go to a hospital emergency room. Admittedly, the plaintiff had several medical providers testify that, in their opinion, the accident had injured the plaintiff's spine. But Dr. Zindrick, the orthopedic surgeon who examined the plaintiff, said in his evidence deposition that his examination revealed no significant spinal problems except for normal degenerative changes associated with aging. A verdict in favor of the defendant can be sustained where the defendant successfully discredits the testimony of the plaintiff's witnesses. Moran, 297 Ill.App.3d at 353, 231 Ill.Dec. 484, 696 N.E.2d at 787.

II

The plaintiff next contends that the trial court erred in admitting evidence that the plaintiff had sustained some injuries to her back in a prior automobile accident. The plaintiff had moved in limine to exclude such evidence. Before allowing evidence of a prior accident, the plaintiff argues, the trial court should have required the defendant to provide competent evidence that the prior accident could have been the cause of the plaintiff's current complaints. We agree.

For a period this court applied the "same part of the body rule" to determine the admissibility of evidence of prior injuries in personal injury cases. Under the "same part of the body rule," evidence of a prior injury was admissible as long as the injury was to the same part of the body as the injury at issue in the litigation. See B. McDonald, "Same Part of the Body Rule" Revised: Admissibility of Prior Injuries in PI Cases, 87 Ill. B.J....