No. 3--02--0632

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

The plaintiff, Barbara Janky, filed a negligence cause ofaction against the defendant, Doris Perry. Janky claimed thather shoulder was injured as the result of an automobile accidentcaused by Perry. A jury ruled in favor of Perry. Janky's motionfor a judgment notwithstanding the verdict was denied. Onappeal, Janky argues that the trial court erred by (1) allowingPerry's attorney to elicit testimony from Janky that she hadcomplained of shoulder pain to her family doctor three or fouryears before the automobile accident occurred; and (2) denyingher motion for a judgment notwithstanding the verdict. Weaffirm.

BACKGROUND

The automobile accident at issue occurred on April 17, 1999. On that date, Janky was a passenger in a car driven by herhusband. The Jankys' granddaughter was in the front passengerseat and Janky was in the back seat on the driver's side. Whilestopped at a traffic light, Janky leaned forward to talk to hergranddaughter.

Perry was driving her car, which was stopped directly behindthe Jankys' car. Perry testified that while stopped for thelight, she reached down to the floor of her car to retrieve anobject. When Perry bent over to retrieve the object, her footslipped off the brake. Perry's car moved forward and struck theJankys' car from behind. As a result of the collision, Janky'sleft shoulder struck the driver's seat in front of her.

Janky testified that when her shoulder struck the seat, sheimmediately felt pain from her shoulder down to her elbow. Afterthe accident, Janky did not seek immediate medical attention. Instead, Janky and her husband took their granddaughter to visitthe granddaughter's father. The Jankys then drove to their home.

The accident occurred on a Saturday. Janky stated that hershoulder continued to hurt on Sunday. On Monday, her husbandmade an appointment for her with an orthopedist, Dr. Timothy J.Morgan.

During direct examination, the following exchange took placebetween Janky's lawyer and Janky:

"Q: *** Prior to this accident, did you have anyproblems with your left shoulder?

A: Well, I had pain[,] but it wasn't down in myshoulder. It was more up in here (Indicating) in myneck area.

* * *

Q: Now, how often[,] and we're still talking aboutbefore the accident, before April 17th of 1999, howoften would you have this pain that you talked about inyour left shoulder?

A: Not frequent at all, not frequent at all."

On cross-examination, Perry's attorney asked Janky, "Youcomplained of pain in your shoulder to your family physician asearly as March of 1995, didn't you?" Janky's attorneyimmediately asked to approach the bench, and a sidebar was heldoff the record. Following the sidebar, the judge stated for therecord that Janky's objection was overruled. The nature ofJanky's objection, however, is not preserved in the record.

The following exchange then took place between Perry'slawyer and Janky:

"Q: I had asked if isn't it correct that you madecomplaints of left shoulder pain to your familyphysician, Dr. Blair, as early as March of 1995?

A: I don't remember what, when it was, you know,what year it was or anything.

Q: Were you -- do you remember making complaintsto Dr. Blair?

A: Um-hum.

Q: About your left shoulder?

A: Yes.

Q: Do you remember telling him that you were in,that your left shoulder was very painful? Do youremember telling him that?

A: Yes.

Q: That was back in March or April of 1995?

A: I'm not sure when, when it was, the dates.

Q: But it was several years ago?

A: Yeah.

Q: Did you know that you had a rotator cuff tearat the time that you went to see Dr. Morgan?

A: No, I didn't.

Q: Was Dr. Morgan the first doctor that had toldyou that the rotator cuff was torn?

A: Yes.

Q: You understand that Dr. Morgan says that therotator cuff tear predates the date of the accidentwith Miss Perry? You understand that?

A: Yes, I do. He didn't tell me that, but I knowthat now."

Later in the proceeding, Janky offered Morgan's testimony byway of an evidence deposition, which was read to the jury. Morgan stated that he first saw Janky on April 28, 1999. On thatdate, Janky told Morgan:

"that she had had pain in the region of her leftshoulder for several years, but that pain had recentlyworsened at the time of an automobile accident.

* * *

As far as her shoulder was concerned, she statedthat she had seen some other physicians[,] but had notobtained any relief of her pain."

Morgan said that he initially ordered an x-ray of Janky'sshoulder. The x-ray showed "degenerative changes in the form ofmild spurring and narrowing of the acromioclavicular joint." Morgan testified that the acromioclavicular joint is "the smalljoint where the collarbone articulates with the shoulder bone ontop of the shoulder." He said that a portion of the rotator cuffis located under that joint. Morgan gave Janky a cortisoneinjection in an attempt to relieve the inflammation and pain inher shoulder.

When Morgan saw Janky again on May 10, 1999, Janky told thedoctor that the cortisone injection had not significantly reducedher pain. Morgan said that Janky "stated that she had also hadsome pain in the region of her neck which she also felt may haveworsened since the motor vehicle accident."

Morgan then ordered a magnetic resonance image (MRI) ofJanky's shoulder. The MRI "revealed evidence of a large tear ofthe rotator cuff, *** retraction" of a tendon, "wasting" of amuscle, and other "degenerative changes" in her shoulder. Thedoctor stated that the degenerative changes were likely to havebeen present prior to the car accident.

Morgan recommended surgery to repair Janky's shouldercondition and physical therapy to strengthen the muscles aroundthe injury. He stated that, within a reasonable degree ofmedical certainty, the car accident had aggravated Janky'spreviously existing shoulder condition.

After the evidence was presented, the trial judge directed averdict in favor of Janky on the issue of negligence. Heinstructed the jurors that they still were to decide if Perry'snegligence proximately caused Janky's injury, and if so, todetermine Janky's damages. The jury returned a verdict in favorof Perry.

Janky moved for a judgment notwithstanding the verdict. Inher motion, Janky argued that (1) the verdict was against themanifest weight of the evidence; and (2) the court erred byallowing testimony regarding Janky's prior medical treatment. The motion was denied and Janky appealed.

ANALYSIS

I. Janky's Testimony Concerning Previously
Having Sought Medical Treatment

Janky contends that the trial court erred by permittingPerry's lawyer to elicit testimony from Janky concerningpreviously having sought medical treatment for her shoulder. Forthis proposition, Janky cites Voykin v. Estate of DeBoer, 192Ill. 2d 49, 733 N.E.2d 1275 (2000).

We review evidentiary rulings for an abuse of the trialcourt's discretion. An appellate court may find an abuse ofdiscretion only where no reasonable person would take the viewadopted by the trial court. Valentino v. Hilquist, 337 Ill. App.3d 461, 785 N.E.2d 891 (2003).

In Voykin, the plaintiff suffered injuries to his neck andback in a car accident caused by the defendant. At trial, thedefendant sought to introduce evidence that approximately fiveyears before the accident, the plaintiff suffered an injury tohis lower back. The trial court admitted the evidence, but theappellate court reversed. The Illinois Supreme Court upheld theappellate court's reversal. The Voykin court ruled, in part,that when a defendant seeks to introduce evidence of theplaintiff's prior injury to the same part of the body, thedefendant must first introduce expert testimony concerning therelevance of the evidence with respect to the proximate causeelement of negligence. Voykin, 192 Ill. 2d 49, 733 N.E.2d 1275.

In this case, Janky argues that the trial court erred, underthe rule of Voykin, by allowing Perry's attorney to questionJanky concerning previously seeking medical attention for hershoulder pain without having first introduced expert testimonyconcerning causation. We disagree.

The rule of Voykin applies when a defendant seeks tointroduce evidence of a prior injury to the same part of thebody. However, in this case, the plaintiff, rather than thedefendant, first introduced evidence of a prior injury to thesame part of Janky's body. The first time Janky's lawyer askedJanky about her previous shoulder pain, Janky said that it wasmore of a pain in the area of her neck. The second time Janky'sattorney asked about her previous shoulder pain, Janky said thatshe had previously experienced the pain, but infrequently.

The subject of Janky's previous shoulder pain having beenraised on direct examination, Perry's attorney then pursued thematter on cross examination. Later in the proceeding, Jankyintroduced Morgan's testimony that Janky previously had soughtmedical attention for her shoulder and neck pain. Morgan alsostated his medical opinion that her shoulder condition predatedthe car accident.

Because Janky's attorney opened the door on the subject ofher preexisting injury and later introduced testimony from hertreating physician concerning this injury, we find the holding ofVoykin to be inapplicable to the present case. Thus, the trialcourt did not abuse its discretion by allowing Perry's attorneyto question Janky concerning previously seeking medical attentionfor her shoulder.

II. Judgment Notwithstanding the Verdict

Janky argues that the trial court erred by denying hermotion for a judgment notwithstanding the verdict.

A judgment notwithstanding the verdict is to be entered onlywhen the evidence, taken in the light most favorable to thenonmovant, so overwhelmingly favors the movant that no contraryverdict could stand. When reviewing a trial court's ruling onsuch a motion, an appellate court cannot substitute its judgmenton questions of fact tried by the jury. We apply a de novostandard of review concerning rulings on motions for judgmentsnotwithstanding the verdict. Morus v. Kapusta, 339 Ill. App. 3d483, 791 N.E.2d 147 (2003).

In the instant case, taking the evidence in the light mostfavorable to Perry, we cannot say that the evidence sooverwhelmingly favored Janky that the verdict in favor of Perrycannot stand. The evidence showed that Janky's shoulder injurypredated the automobile accident by several years. Janky's owndoctor testified, by evidence deposition, that the x-ray and MRIshowed several signs of preexisting degenerative changes inJanky's shoulder. Janky admitted that she had sought medicaltreatment for her shoulder several years before the accident.

Because of this evidence, a reasonable jury could have foundthat Perry's negligence was not the proximate cause of Janky'sshoulder injury. Therefore, we hold as a matter of law that thetrial court did not err by denying Janky's motion for a judgmentnotwithstanding the verdict.

CONCLUSION

For the foregoing reasons, we affirm the judgment of thePeoria County circuit court denying Janky's motion for a judgmentnotwithstanding the verdict.

Affirmed.

HOLDRIDGE, J., with LYTTON, J., concurring and SCHMIDT, J.,specially concurring.

With respect to the Voykin issue, the majority correctlypoints out that it was the plaintiff who put on evidence of theprior shoulder pain and the preexisting torn rotator cuff. Additionally, I note that not only did the plaintiff put on thisevidence, but the plaintiff sought damages for aggravation of apreexisting condition. Voykin is clearly not applicable.

Regarding plaintiff's demand for judgment notwithstandingthe verdict, plaintiff argues that it is undisputed that herpreexisting shoulder injury was aggravated by this accident. Plaintiff's expert, Dr. Timothy Morgan, M.D., made it clear thatin his opinion, the torn rotator cuff was a chronic injury thatpreexisted the automobile accident. Plaintiff claims that herpain increased after the accident. Dr. Morgan testified that hisopinion that this accident aggravated the pain in the plaintiff'sleft shoulder was based on her subjective complaints. He madethis clear on redirect examination by plaintiff's attorney:

"Q. Doctor, it remains your opinion that this accident aggravated Ms. Janky's rotator cuff injury?

A. My opinion that it aggravated her pain is based on her telling me that."

It was therefore up to the jury to decide whether theplaintiff was a credible medical historian. The 12 jurors couldhave chosen to believe her or not. They obviously chose thelatter.

Judgment notwithstanding the verdict is improper wherereasonable minds might differ as to inferences or conclusions tobe drawn from the facts presented. Pasquale v. Speed ProductsEngineering, 166 Ill. 2d 337, 654 N.E.2d 1365 (1995). Judgmentnotwithstanding the verdict cannot be entered if there is anyevidence together with reasonable inferences to be drawntherefrom, demonstrating a substantial factual dispute, or wherethe assessment of credibility of the witnesses or thedetermination regarding conflicting evidence is decisive to theoutcome. Maple v. Gustafson, 151 Ill. 2d 445, 603 N.E.2d 508(1992). In looking at the evidence adduced at trial, in thelight most favorable to the defendant, the jury could haveconcluded that the plaintiff was not credible.

(1) At trial, plaintiff first denied having prior shoulderpain and testified that the preexisting pain had only been in herneck. She later admitted that she had experienced shoulder painprior to the automobile accident. (2) There was a disputebetween plaintiff and the defendant regarding the nature andseverity of the impact. (3) Plaintiff testified that she wasleaning forward in the rear seat when her vehicle was struck frombehind. She claims that the impact threw her left shoulder intothe rear of the driver's seat in front of her. A reasonable jurymight have questioned this based on life experiences. The jurymight have found that it was more probable that, rather thanbeing thrown forward from the rear impact, plaintiff would havebeen drawn back into her seat. (4) The plaintiff testified thatjust prior to the accident, she had no idea that she had apreexisting torn rotator cuff or other permanent or chronicshoulder injury. The jury also could have doubted this in lightof the fact that the first medical professional she saw after theaccident was not a general practitioner or an emergency roomphysician, but an orthopedic surgeon.

Because the only evidence of either injury or theaggravation of a preexisting injury, according to plaintiff's ownexpert, was the plaintiff's subjective complaint of increasedpain, we cannot say, as plaintiff urges, that the jury wasrequired to accept her testimony at face value.