Jackson v. Seib

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Jackson v. Seib

State: Illinois

Court: 5th District Appellate

Docket No: 5-05-0545 Rel

Case Date: 04/10/2007

Preview:Rule 23 order filed March 6, 2007; Motion to publish granted April 10, 2007.

NO. 5-05-0545 IN THE APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________ SCOTT JACKSON, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Madison County. ) v. ) No. 03-L-2011 ) DAVID W. SEIB, ) Honorable ) Phillip J. Kardis, Defendant-Appellee. ) Judge, presiding. ________________________________________________________________________ JUSTICE SPOMER delivered the opinion of the court: The plaintiff, Scott Jackson, appeals from the order of the circuit court of Madison County that entered a judgment for the defendant, David W. Seib, pursuant to a jury verdict. The plaintiff raises numerous issues on appeal, which we restate as follows: (1) whether the circuit court erred in denying the plaintiff's requests for a directed verdict, a judgment notwithstanding the verdict ( n.o.v.), or a new trial on the issue of the defendant's negligence, (2) whether the circuit court erred in allowing the admission of photographs of the plaintiff's vehicle following the accident, (3) whether the circuit court erred in allowing the defendant's experts to testify that, in their opinion, the plaintiff was not injured as a result of the defendant rear-ending him, (4) whether the circuit court erred in excluding the plaintiff's demonstrative evidence as a sanction for a discovery violation, (5) whether the circuit court erred in denying the plaintiff's proposed jury instruction on an increased risk of future injury, and (6) whether the circuit court erred in admitting the testimony of the investigating officer, who had no independent recollection of the accident. For the following reasons, we affirm the judgment entered by the circuit court.

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The facts necessary for our disposition of this appeal are as follows. On December 11, 2003, the plaintiff, Scott Jackson, filed a complaint in the circuit court of Madison County, alleging that the defendant, David Seib, was negligent when he rear-ended the plaintiff, causing the plaintiff various personal injuries and lost wages. The case was tried to a jury of 12, beginning on June 20, 2005. The plaintiff was the first to testify in his case in chief. He testified that he had been at a dead stop for 20 to 30 seconds in a traffic jam on Interstate 270 in his 1998 Mitsubishi Gallant when the defendant rear-ended him, pushing him into the vehicle in front of him. Upon impact he was launched forward due to an apparent failure of his seat belt, pulling his left arm. In addition, he testified that a part of his head struck the windshield and that he experienced a headache and dizziness immediately following the accident. However, he did not request an ambulance. Instead, he waited for his wife to pick him up and drive him to the emergency room. According to the plaintiff, while at the emergency room, he was diagnosed with a concussion and a cervical neck sprain. In the weeks following the accident, he began experiencing memory loss, sexual dysfunction, an inability to concentrate, massive headaches, blurry vision, and nausea. He also testified that he had left shoulder pain and that his left shoulder started rotating out of socket. The plaintiff testified that due to these symptoms, he was unable to work for approximately two months. The plaintiff underwent a short period of physical therapy at a facility he referred to as MECCA. The plaintiff explained that although he told his physical therapist two weeks after the accident that he had split logs, he had used a log-splitting machine with assistance from his father-in-law. He also participated in extensive treatment with Associated

Physicians. He visited Associated Physicians approximately 40 times in a two-month period, according to his testimony. Associated Physicians referred him to an ophthalmologist and

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an orthopedic surgeon. He also participated in an independent medical exam with Dr. Beyer at the defendant's request. The plaintiff explained that prior to the accident, he had been treated for depression and anxiety and had been prescribed Celexa, an antidepressant, and amitriptyline, an antianxiety medication. According to the plaintiff, these medications helped him to sleep. He also had a previous right shoulder injury while in college. According to the plaintiff's testimony, the memory loss he experienced following the accident was quite extensive. He testified to several specific instances of extreme memory loss. For example, he testified that he forgot his daughter's name, that he forgot that he had a dog, and that, on one occasion, he left his vehicle running in the parking lot of a Home Depot and walked a mile and a half to his doctor's office. The plaintiff also described a subsequent accident in 2003 in which he rear-ended a vehicle. However, the plaintiff asserted that he was not injured in this accident. He attributed one visit to Associated Physicians to this accident and testified that he returned to work immediately. On cross-examination, the defendant presented a series of photographs to the plaintiff and asked him if they fairly and accurately portrayed the condition of his vehicle as a result of the accident. The plaintiff testified that he did not think so, but he was impeached by his prior inconsistent statement in his deposition that they did. The plaintiff objected to the photographs being admitted into evidence, based on the lack of a foundation. The circuit court overruled the objection, stating that the foundation was sufficient by way of the admission in the deposition. The photographs, which depict extremely minor damage to the plaintiff's vehicle, were admitted into evidence. Annette Shirley, billing supervisor and records custodian for Associated Physicians, described the foundation of the medical bills. A ccording to Ms. Shirley, the bills, which totaled $15,978, were reasonable and customary. Robert Fast, an Associated Physicians

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chiropractor, testified that the plaintiff first visited him on October 15, 2002. At that time, the plaintiff complained of neck pain, headache, shoulder pain, dizziness, nausea, and memory loss. He was diagnosed with postconcussion syndrome and placed on an extensive multidisciplinary treatment program consisting of physical therapy, chiropractic adjustments, trigger point injections, diagnostic and therapeutic ultrasounds, and the use of state-of-the-art MEDEX equipment. He was also referred to an ophthalmologist, an orthopedic surgeon, and a neurologist. The neurological exam results were normal, reflecting normal memory, normal intellect, fluent and articulate speech, and normal visual acuity. Nevertheless, Dr. Fast stated that all the treatment was reasonable and necessary. He also testified that the postconcussion syndrome was a result of the whiplash and that a concussion can occur without impact and at low speed. The plaintiff was discharged at maximum medical improvement on January 24, 2003. Trooper Andrew Connor testified that he investigated the accident and generated a police report. He testified that there was no visible injury to either party and that he determined no ambulance was necessary. Trooper Connor's investigation revealed that only two vehicles had been involved in the accident. The defendant was ticketed for the failure to reduce speed to avoid a crash. According to Trooper Connor's testimony, the plaintiff was slowing in traffic when he was struck from the rear. On cross-examination by the plaintiff, Trooper Connor testified that he does not remember anything regarding the accident without looking at the police report. Dr. Fred Ginsberg, medical director of Associated Physicians, testified via a video evidence deposition. Dr. Ginsberg described the same facts as Dr. Fast with regard to the plaintiff's subjective complaints, the diagnosis of postconcussion syndrome, and the plaintiff's treatment at Associated Physicians. Dr. Ginsberg mirrored Dr. Fast's opinion that whiplash can occur in a low-impact accident and that all the treatment of the plaintiff was

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reasonable and necessary. All the symptoms exhibited by the plaintiff, including the instances of extreme memory loss, were consistent with postconcussion syndrome. In addition, Dr. Ginsberg testified that patients who are injured are predisposed to future injury in the same areas of the body. Dr. Ginsberg testified that he did not see the postaccident photos of the vehicles. The defendant commenced his case in chief by introducing the testimony of Dr. Craig Beyer via a video evidence deposition. Dr. Beyer is a board-certified orthopedic surgeon who had reviewed the plaintiff's medical records, X rays, and MRI films and also conducted an independent medical exam of the plaintiff. According to Dr. Beyer, the history given by the plaintiff in the emergency room was that the defendant was traveling 50 miles per hour when he rear-ended the plaintiff. Dr. Beyer testified that he relied on photographs of the vehicle with regard to the nature and severity of the impact because that information is crucial to his opinion regarding the causal relationship between the accident and the plaintiff's complaints. Dr. Beyer testified that, based on his education in biomechanics and physics, it is clear from the photographs that there was not a 50-mile-per-hour impact as the plaintiff suggested in the emergency room. Dr. Beyer conducted an independent medical exam of the plaintiff on March 8, 2005. It was his opinion that the plaintiff's subjective complaints regarding his shoulder injury were atypical and that any instability of the shoulder was due to the plaintiff's generalized ligamentous laxity, which is not impacted by a single injury event. According to Dr. Beyer, a strengthening of the muscles surrounding the shoulder would correct any instability. Dr. Beyer's review of the plaintiff's MRI revealed mild rotator-cuff tendinitis. He also pointed out that the emergency room records revealed that the plaintiff made no complaint of shoulder pain following the accident. In addition, Dr. Beyer's review of the plaintiff's medical records revealed that the plaintiff had told his physical therapist at MECCA that he

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had raked his yard and cut and stacked firewood two weeks after the accident. According to Dr. Beyer, that type of activity was inconsistent with an acute shoulder injury. Dr. Beyer criticized Dr. Shikar, who had diagnosed a labral tear of the shoulder, stating that it is highly inaccurate to diagnose a significant shoulder injury with ultrasound. Dr. Beyer testified that in his opinion, within a reasonable degree of medical certainty, the plaintiff's subjective complaints and the condition of his shoulder had no causal connection with the accident. Dr. Karen Pentella, an assistant professor of neurology at Washington University, also testified on behalf of the defendant. Dr. Pentella testified that she had conducted a review of the plaintiff's medical records at the request of the defendant. With regard to the emergency room records, Dr. Pentella testified that there were no objective findings of head trauma. All the subsequent testing of the plaintiff, including a CT scan of the brain, an X ray of the left shoulder, an MRI of the brain and neck, and an EEG, was normal. Dr. Pentella also noted that the history given by the plaintiff to his treating providers was increasingly dramatic. According to Dr. Pentella, any diagnosis of postconcussion syndrome was based on subjective complaints only, with no objective findings. Dr. Pentella noted that the plaintiff has preexisting issues, including previous treatment for anxiety and depression, which can cause headache and dizziness. Dr. Pentella concluded, within a reasonable degree of medical certainty, that the plaintiff did not have a concussion. Dr. Pentella cited the lack of impact and the lack of an alteration of consciousness as a part of the basis for her opinions.

With regard to the plaintiff's shoulder complaints, Dr. Pentella testified that a shoulder exam by a Dr. Stein after the accident revealed that the plaintiff had a full range of motion. Also, her review of the MRI of the shoulder did not reveal a labral tear. Dr. Pentella noted that further testing had been recommended but never conducted. It was Dr. Pentella's opinion that the plaintiff did not require shoulder surgery.

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The defendant testified on his own behalf, explaining that he had been on his way to work on the morning of the accident, in stop-and-go traffic on Interstate 270 westbound. He contacted the rear of the plaintiff's vehicle when he looked down briefly to reach a pack of cigarettes. According to the defendant, he was driving at a speed of one to three miles per hour when the impact occurred. The defendant testified that at the time of the impact he did not see the plaintiff fly around in his car. After the accident, there was no observable injury to the plaintiff, and the plaintiff said he was fine. The only damage to the defendant's vehicle was a slightly bent license plate. Jenny Burgner, coordinator at the Southern Illinois Sleep Disorder Center, testified that six to eight weeks prior to the accident the plaintiff had been given an appointment for an initial consultation and snoring evaluation. His appointment was on October 3, 2002, only two days after the accident. The records for that date show that the plaintiff made no complaints of pain and did not mention the accident at that appointment. He also answered an extensive questionnaire regarding his history. The plaintiff returned to the sleep disorder center on November 14, 2002. At that time, he did report the accident and complained of head and neck pain. On rebuttal, the plaintiff sought to introduce, as demonstrative evidence, a model bumper from a 1998 Mitsubishi Gallant. The defendant objected based on the plaintiff's failure to supplement discovery responses with this evidence. The circuit court sustained the defendant's objection based on the discovery violation. At the jury instruction conference, jury instructions on the elements of negligence, proximate cause, and damages were agreed to by the parties. However, the plaintiff sought to introduce Illinois Pattern Jury Instructions, Civil, No. 30.04.04 (2006), entitled "Increased Risk of Harm

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