Estate of Oglesby v. Berg ( 2011 )

FIRST DIVISION
March 28, 2011
No. 1-09-0639
ESTATE OF ROSEMARY OGLESBY, ) Appeal from the
Deceased, GEORGE OGLESBY and) Circuit Court of
GEORGE OGLESBY, as Father ) Cook County.
and next Friend of GEORGE )
OGLESBY II, a Minor, ) No. 02 L 8377
)
Plaintiffs-Appellees, )
)
v. )
) Honorable
WILLIAM BERG and THE CHICAGO) Vanessa Hopkins,
PARK DISTRICT, ) Judge Presiding.
)
Defendants-Appellants.)
PRESIDING JUSTICE Hall delivered the judgment of the court,
with opinion.
Justices Hoffman and Rochford concurred in the judgment and
opinion of the court.
OPINION
The defendants, William Berg and the Chicago Park District,
appeal from a judgment entered on a jury verdict awarding damages
to the plaintiffs, the estate of Rosemary Oglesby, George Oglesby
and George Oglesby II, a minor. The plaintiffs were injured in a
collision between a park district van, driven by Mr. Berg, and a
Chevy Impala, driven by Mrs. Oglesby. Her son, George Oglesby
(Mr. Oglesby) and grandson, George II, were passengers in the
Impala.
On appeal, the defendants raise the following issues:
whether the trial court's denial of their request for an exhibit
to go to the jury room requires a new trial on damages, and
No. 1-09-0639
whether the trial court should have granted a remittitur of the
damages awarded to the estate for Mrs. Oglesby's pain and
suffering and loss of a normal life. As this appeal concerns
only the damages suffered by Mrs. Oglesby, we will concentrate
our discussion on the evidence pertaining to her injuries and the
results therefrom.
BACKGROUND
The accident occurred on September 23, 1998, at the
intersection of Marquette Avenue and Lake Shore Drive.1 At the
time of the accident, Mrs. Oglesby was 60 years old and suffered
from cancer. In 2000, Mrs. Oglesby died from complications due
to cancer, and her estate was substituted as a party. Trial of
the personal injury suit took place on September 23, 2008.
Mr. Oglesby testified that the impact of the collision was
severe; the park district's van flipped over and the Impala was
destroyed. Mrs. Oglesby's face hit the windshield. The
plaintiffs were taken by ambulance to Jackson Park Hospital for
treatment. While not specifically stated in the record, it
appears the plaintiffs were released from the hospital the same
day as the accident. When Mrs. Oglesby left the hospital, her
head was bandaged.
Mr. Oglesby testified that Mrs. Oglesby was seen by Dr.
1
The original complaint was filed in 1999. It was
voluntarily dismissed and refiled in 2002.
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No. 1-09-0639
Silverman and Dr. Volkening. Following the accident, Mr. Oglesby
moved in with Mrs. Oglesby to care for her, as she was no longer
able to maintain her residence on her own. Mrs. Oglesby was in
pain from the accident and required medication. On cross-
examination, Mr. Oglesby testified that Mrs. Oglesby was taking
medication prior to the accident.
Several exhibits were admitted into evidence during Mr.
Oglesby's testimony. The plaintiffs' exhibit No. 10 was a
billing statement from Dr. Silverman, dated October 12, 1999.
According to the statement, Mrs. Oglesby was initially seen by
Dr. Silverman on September 25, 1998, two days after the accident.
She had 12 brief office visits between September 26 and October
27, 1998. During that time, she was treated with hot packs and
joint mobilization. The total charges were $1,410.
Dr. Silverman testified via his evidence deposition.2
Testifying from his medical notes, he related that he conducted
an examination of Mrs. Oglesby and then had her tested by Dr.
Volkening, a chiropractic doctor. Based on his own examination
and Dr. Volkening's test results, Dr. Silverman diagnosed Mrs.
Oglesby as suffering from muscle spasms in the her neck and back
2
The plaintiffs do not refer this court to the record cite
where Dr. Silverman's evidence deposition was admitted into
evidence. However, both parties treat Dr. Silverman's testimony
as part of the evidence considered by the jury.
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No. 1-09-0639
areas. She had also sustained acute contusions to her knees and
left hand, as well as an abrasion on that hand. While Mrs.
Oglesby suffered trauma to the left side of her head, the result
from the neurological test was within the normal range. She
sustained secondary limitation of forward and backward motion in
her neck area, which intensified with activity. She was also
suffering pain as a result of these conditions.
Dr. Silverman noted that Mrs. Oglesby had received an
injection for pain at the hospital and also received
prescriptions for Motrin and Flexeril. Dr. Silverman prescribed
rest and avoidance of strenuous activity, a course of physical
therapy and sitz baths. She was to sleep on a firm surface and
wear a Stryker collar, a soft neck collar to immobilize her neck.
Dr. Silverman testified that he continued to see Mrs.
Oglesby periodically. According to his medical notes, he last
saw her on October 8, 1999. At that time, Mrs. Oglesby had no
complaints relating to the accident. The doctor released her
with instructions to come back as needed. He acknowledged that
Dr. Volkening had performed a second test on Mrs. Oglesby on
October 27, 1998; the test results indicated significant
improvement in her range of motion and muscle strength.
In closing argument, the plaintiffs' attorney requested an
award of $75,000 for loss of a normal life and $85,000 for Mrs.
Oglesby's pain and suffering, arguing as follows:
"During the period of time after September 23rd, 1998 until
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No. 1-09-0639
October of 1999, Rosemary continued to be under the care of
Dr. Silverman. She was not effectively released from
further care until October of 1999, a year after the
accident."
In response, the defendants' attorney argued as follows:
"I would also ask you to look at the bills from the
Silverman Foreman Medical Associates for Rosemary Oglesby,
and you will note that her initial exam was on September
25th, 1998 and her last treatment was on 22, October of
1998. So we are talking here essentially about one month,
*** a little over a - - around a month's treatment. And
what did the treatment consist of? Sitz bath, that's a
fancy word for she stepped in the hot tub. Compare the
claim of injury to the actual office visits. Inferential
hot packs, I have got a heating pad at home. Joint
mobilization, the last of which was through October of 1998.
That's near the accident."
The jury returned a verdict in favor of Mrs. Oglesby's
estate. In addition to amounts for medical expenses and property
damage, the jury determined the damages for her pain and
suffering to be $42,000 and her damages for loss of a normal life
to be $34,000, The jury further found Mrs. Oglesby 40% negligent
and awarded her estate a total of $47,200.20.
The trial court denied the defendants' posttrial motion.
This appeal followed.
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ANALYSIS
I. New Trial
The defendants contend that they are entitled to a new trial
because the trial court erred when it denied the defendants'
request to send exhibit No. 10 to the jury room.
After the jury retired to deliberate, the trial court asked
the parties' attorneys which exhibits they wished to go to the
jury room. The defendants' attorney requested that exhibit No.
10 be sent to the jury. After the court pointed out that No. 10
was the plaintiffs' exhibit, the defendants' attorney argued to
the court as follows:
"MR. BROWN: I respectfully submit if they are all in
evidence, which ever party submits the evidence, they should
be allowed to go back to the jury.
THE COURT: Yes, if [the plaintiffs' attorney] chooses
to send them back to the jury.
* * *
THE COURT: If counsel wants to send in his exhibit, he
can. If he chooses not to, that's noted. If the jurors
request it, then it will go in."
A. Standard of Review
Our courts have held that the decision to send exhibits to
the jury room is within the discretion of the trial court, and we
will not reverse that decision absent an abuse of discretion that
prejudices a party. Gallina v. Watson, 354 Ill. App. 3d 515,
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No. 1-09-0639
522, 821 N.E.2d 326 (2004).
B. Discussion
Section 2-1107(d) of the Code of Civil Procedure (the Code)
provides that "[p]apers read or received in evidence, other than
depositions, may be taken by the jury to the jury room for use
during the jury's deliberations." 735 ILCS 5/2-1107(d) (West
2008). The trial court has the discretion to permit all admitted
evidence relevant to any material fact to go to the jury room.
Bieles v. Ables, 234 Ill. App. 3d 269, 272, 559 N.E.2d 469(1992). Nothing in section 2-1107(d) requires a court to deny a
party's request to send an exhibit to the jury room solely on the
basis that the exhibit was placed in evidence by the opposing
party. Exhibit No. 10 met the statutory criteria in that it was
not a deposition and had been admitted into evidence. In
addition, it was also relevant to the issue of Mrs. Oglesby's
pain and suffering resulting from the accident.
In the quoted exchange between the defendants' attorney and
the trial court, the court refused to order exhibit No. 10 be
taken to the jury room because the request was not made by the
party offering the exhibit or pursuant to a request by the jury.
The court's statements indicate that it felt it had no choice but
to deny the request. Therefore, the court's ruling was not an
abuse of discretion but a failure to exercise its discretion. A
trial court's refusal to exercise its discretion due to its
belief it has none is error. Allstate Insurance Co. v. Rizzi,
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No. 1-09-0639
252 Ill. App. 3d 133, 137, 625 N.E.2d 74 (1993). "Whether the
error requires reversal depends upon the circumstances presented
by each case." Allstate Insurance Co., 252 Ill. App. 3d at 137;
see also In re Mark P., 402 Ill. App. 3d 173, 178, 932 N.E.2d 481(2010) (error in failing to exercise discretion may be harmless).
The defendants maintain that the jury's determination that
$42,000 represented Mrs. Oglesby's damages for pain and suffering
was based on Dr. Silverman's testimony that Mrs. Oglesby remained
under his care for a year after the accident. The defendants
argue that it was essential that exhibit 10 be sent to the jury
room because it established that Mrs. Oglesby's treatment lasted
only a month. Thus, the denial of their request to have exhibit
No. 10 sent to the jury room was prejudicial and required a new
trial.
Having reviewed the evidence relevant to the award of
damages to Mrs. Oglesby for pain and suffering, we determine that
reversal is not required in this case. Dr. Silverman testified
from his medical notes that, following her last treatment on
October 27, 1998, he continued to see Mrs. Oglesby periodically
and that he last saw her on October 8, 1999. At that visit, she
reported having no further complaints attributable to the
accident and was released from his care. Although exhibit No. 10
did not list any office visits after October 1998, the
defendants' attorney never questioned Dr. Silverman as to the
inconsistency between his medical notes and his billing
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No. 1-09-0639
statement.
Moreover, in closing argument, the defendants' attorney
pointed out that Mr. Oglesby's treatment had lasted a month and
in reality consisted of using a heating pad and sitting in warm
water. He asked the jury to compare the injury claim to the
actual office visits, thus drawing the jury's attention to the
fact that Mrs. Oglesby's last treatment was in October 1998.
The defendants' closing argument contemplated that the jury would
actually be able to view exhibit No. 10 during deliberations, the
jury did not request to view exhibit No. 10.
The defendants rely on Gallina. In Gallina, the appellate
court held that the trial court abused its discretion when it
refused to allow an exhibit containing a doctor's written opinion
disclosures to be taken to the jury room, as the exhibit would
have assisted the jury in assessing the doctor's testimony. The
reviewing court rejected the argument that sending the exhibit to
the jury would have overemphasized that particular piece of
evidence. Since all the other exhibits had been sent to the jury
room, the court determined that not sending the exhibit to the
jury room diminished the evidence contained in the exhibit.
Gallina, 354 Ill. App. 3d at 522.
The plaintiffs state that, unlike Gallina, not all of the
other exhibits were sent to the jury room. While the record is
unclear on this point, we note that the defendants do not
challenge the accuracy of the plaintiffs' statement. Therefore,
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No. 1-09-0639
Gallina is not persuasive. Moreover, exhibit No. 10 was an
uncomplicated billing statement. The billing statement was
evidence of the dates of Mrs. Oglesby's office visits and
treatment dates. The significance of those dates was pointed out
to the jury and strenuously argued to the jury by the defendants'
attorney. The fact that the jury determined the damages for Mrs.
Oglesby's pain and suffering to be $42,000, rather than the
$85,000 requested by the plaintiffs, strongly suggests that the
jury did not ignore the defendants' evidence on this issue.
The defendants also assert that a comparison of the damages
awarded to Mrs. Oglesby with the smaller damages awards to Mr.
Oglesby and George II was sufficient to show that the defendants
were prejudiced by the failure to send exhibit No. 10 to the jury
room. We disagree. The jury heard the evidence as to the
injuries suffered by each plaintiff, the required treatment and
any residual effects resulting from the accident. In closing
argument, the plaintiffs' attorney reiterated the amount of
damages sought for each of the plaintiffs. In making the
determination as to damages suffered by all three plaintiffs, the
jury did not lack any information that viewing exhibit No. 10
would have provided.
We conclude that the trial court erred when it failed to
exercise its discretion in denying the defendants' request to
have exhibit No. 10 sent to the jury room. While this was error,
the defendants have failed to establish that they were
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No. 1-09-0639
sufficiently prejudiced by the trial court's error to require a
new trial on the damages awarded to Mrs. Oglesby's estate.
II. Remittitur
In closing argument, the plaintiffs' attorney requested that
the jury award $85,000 for Mrs. Oglesby's pain and suffering and
$75,000 for her loss of a normal life. Prior to applying the 40%
reduction due to Mrs. Oglesby's negligence, the jury found the
damages for her pain and suffering to be $42,000 and her damages
for loss of a normal life to be $34,000.
The defendants contend that the evidence did not support the
jury's determination of damages. They request that this court
order a remittitur of 50% of the damages for pain and suffering
and for loss of a normal life.
A. Standard of Review
We review the ruling on a motion for a remittitur under the
abuse of discretion standard. Diaz v. Legat Architects, Inc.,
397 Ill. App. 3d 13, 45, 920 N.E.2d 582 (2009). We will find an
abuse of discretion only if the trial court's ruling was
arbitrary, ignored recognized principles of law or if no
reasonable person would take the position adopted by the trial
court. Schmitz v. Binette, 368 Ill. App. 3d 447, 452, 857 N.E.2d
846 (2006). " 'In determining whether there has been an abuse of
discretion, we may not substitute our judgment for that of the
trial court, or even determine whether the trial court exercised
its discretion wisely.' " Clarke v. Medley Moving & Storage,
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No. 1-09-0639
Inc, 381 Ill. App. 3d 82, 95, 885 N.E.2d 396 (2008) (quoting
Simmons v. Garces, 198 Ill. 2d 541, 568, 763 N.E.2d 720 (2002)).
B. Discussion
The purpose of a remittitur is to correct an excessive jury
verdict in limited and appropriate circumstances. Clarke, 381
Ill. App. 3d at 96. The trier of fact determines the amount of
damages and, as a reviewing court, we give great deference to a
jury's award of damages. Clarke, 381 Ill. App. 3d at 96. " 'A
verdict will not be set aside by a court unless it is so
excessive that it indicates that the jury was moved by passion or
prejudice or unless it exceeds the necessarily flexible limits of
fair and reasonable compensation or is so large that it shocks
the judicial conscience.' " Diaz, 397 Ill. App. 3d at 47
(quoting Kindernay v. Hillsboro Area Hospital, 366 Ill. App. 3d
559, 572, 851 N.E.2d 866 (2006)). Where the jury's verdict falls
within the flexible range of conclusions reasonably supported by
the evidence, a remittitur should not be granted. Diaz, 397 Ill.
App. 3d at 47. In reviewing an award of compensatory damages for
a nonfatal injury, we may consider, among other things, the
permanency of the condition, the possibility of future
deterioration, the extent of the medical expenses and
restrictions imposed as a result of the injury. Richardson v.
Chapman, 175 Ill. 2d 98, 113-14, 676 N.E.2d 621 (1997).
In seeking a 50% remittitur, the defendants rely on
Richardson. As the result of a car/truck collision, plaintiff
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No. 1-09-0639
Ann McGregor sustained a laceration on her forehead; she was
treated and released from the hospital the same day. The
laceration healed with only a slight scar. She also suffered
from nightmares from the accident. The jury awarded her $100,000
for pain and suffering. As Ms. McGregor's injury was not
serious, the supreme court determined that an award of $50,000
for pain and suffering was more appropriate. Richardson, 175
Ill. 2d at 115.
As Mrs. Oglesby was deceased at the time of trial, the
evidence of her pain and suffering and loss of a normal life was
presented through the testimony of Dr. Silverman and Mr. Oglesby.
Through Dr. Silverman's testimony, the jury learned that, as a
result of the accident, Mrs. Oglesby sustained neck and back
injuries, which required treatment. She also had been prescribed
medication for her pain. Although her treatments ceased in
October 1998, she continued to see Dr. Silverman, periodically,
until October 1999. Through Mr. Oglesby's testimony, the jury
learned that, prior to the accident, Mrs. Oglesby lived and
maintained her residence on her own. After the accident, Mr.
Oglesby moved in with her to care for her as she was no longer
able to perform household tasks. According to Mr. Oglesby, she
suffered pain due to the accident and required pain medication
frequently.
Richardson does not support the defendants' request for a
remittitur of 50% of the damage awards for pain and suffering and
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No. 1-09-0639
loss of a normal life. Mrs. Oglesby's injuries sustained in the
accident and the resulting pain and suffering were far more
serious than those of Ms. McGregor in Richardson.
As this court has previously observed, a damage award is not
subject to scientific computation. Velarde v. Illinois Central
R.R. Co., 354 Ill. App. 3d 523, 540, 820 N.E.2d 37 (2004). Mr.
Oglesby's testimony, while not extensive, as well as that of Dr.
Silverman, supported an award of damages for Mrs. Oglesby's loss
of a normal life, as well as for her pain and suffering. Finally,
while the plaintiffs requested a total of $160,000 in damages for
Mrs. Oglesby's pain and suffering and loss of a normal life, the
jury set those damages at $76,000, less than half the amount the
plaintiffs had requested. That amount was then subject to a 40%
reduction for Mrs. Oglesby's negligence.
We conclude that the evidence supported the jury's award of
damages to the estate for Mrs. Oglesby's pain and suffering and
loss of a normal life. The trial court did not abuse its
discretion in refusing to grant the defendants a remittitur.
Accordingly, we reject the defendants' request for a 50%
remittitur.
CONCLUSION
The judgment of the circuit court is affirmed.
Affirmed.
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