Han v. Holloway ( 2011 )

SECOND DIVISION
March 1, 2011
No. 1-10-0568
HYE RA HAN, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County
)
v. ) No. 04 L 7997
)
WILLIAM HOLLOWAY, ) Honorable
) Richard J. Elrod,
Defendant-Appellee. ) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Cunningham and Justice Karnezis concurred in the judgment.
OPINION
Plaintiff Hye Ra Han sued defendant William Holloway for negligence, alleging personal
injuries arising from a 2002 motor vehicle accident in Chicago. In 2009, following a jury trial, the
circuit court of Cook County entered judgment in favor of defendant, in accordance with the
jury’s verdict. Plaintiff filed a posttrial motion for a new trial, which the court denied. For the
reasons set forth below, we affirm.
JURISDICTION
The trial court denied plaintiff’s motion for a new trial on January 29, 2010, and plaintiff
timely filed her notice of appeal on February 24, 2010. Accordingly, this court has jurisdiction
pursuant to Illinois Supreme Court Rule 303 (eff. May 30, 2008).
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BACKGROUND
At trial, 1 defendant testified that on July 22, 2002, immediately prior to the accident,
plaintiff was the driver of a vehicle stopped behind approximately five other cars for a red light
westbound on North Avenue at Halsted. Defendant’s vehicle was stopped behind plaintiff’s
vehicle at the red light. When the light turned green, the cars in front of plaintiff’s vehicle
proceeded to cross through the intersection of Halsted, and plaintiff’s vehicle also began to move
forward toward the intersection. Defendant likewise began slowly moving forward, but then saw
plaintiff’s brake lights come on, and she stopped suddenly in front of him, about a car length
before the intersection. Defendant applied his brakes and honked his horn. He saw no pedestrian
or anything else in front of her vehicle. Defendant estimated he was traveling about one or two
miles per hour when the front of his car made contact with the rear of plaintiff’s vehicle.
Defendant stated he thought his license plate scratched plaintiff’s rear bumper. Beyond the scratch
on plaintiff’s bumper, there was no other noticeable damage to either vehicle.
Both vehicles were driveable, and the parties agreed to drive to the nearest police station
to file a police report. According to defendant, both he and plaintiff spoke to the officer at the
desk. The police asked plaintiff if she was okay, and she answered "yes." After speaking to the
police, defendant and plaintiff left the station, got in their respective vehicles and left.2
The evidence presented at trial also included testimony, by evidence deposition, of two of
1
Plaintiff’s testimony at trial is not included in the record in this case.
2
The police report prepared for this accident, which is included in the record, shows a
check mark in the box labeled "No Injury/Drive Away."
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plaintiff’s treating physicians, Dr. Roberto Diaz and Dr. James Robert Diesfeld, and Dr. Russell
Glantz, one of defendant’s retained expert witnesses. Dr. Diaz opined, to a reasonable degree of
medical certainty, that plaintiff suffered a lumbar spine sprain/strain, a bulging disk, and an annular
tear in her spine as a result of the accident. Similarly, Dr. Diesfeld opined, to a reasonable degree
of medical certainty, that plaintiff suffered a diffuse disk bulge and annular tear caused by the
accident. Defendant’s expert, Dr. Glantz, agreed that plaintiff suffered "a soft tissue injury, which
is also known as a sprain or strain to the lower lumbar area," caused by the accident. However, he
added that, consistent with Dr. Diaz’s report of his examination of plaintiff on September 13,
2002, any lumbar sprain/strain plaintiff might have sustained in the July 22 accident was basically
completely resolved as of September 13. With regard to the annular tear, Dr. Glantz opined, to a
reasonable degree of medical certainty, that even if there was an annular tear, it was "unlikely that
that occurred at the time of the motor vehicle accident."3
On October 16, 2009, the jury returned a verdict in favor of defendant and against
plaintiff, and the trial court entered judgment for defendant. The court subsequently denied
plaintiff’s posttrial motion for a new trial.
Additional relevant details of Dr. Glantz’s trial testimony will be discussed in the context
of individual issues raised on appeal.
ANALYSIS
Plaintiff argues the trial court erred in denying her posttrial motion for a new trial.
3
According to Dr. Glantz’s report, which is included in defendant’s Illinois Supreme Court
Rule 213(f) (eff. Jan. 1, 2007) disclosures, plaintiff’s first medical treatment following the accident
was eight days later, when she saw a chiropractor.
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According to plaintiff, the jury’s verdict in favor of defendant and against plaintiff was "clearly
contrary to the manifest weight of the evidence."
The standard for determining whether a trial court erred in denying a motion for a new
trial is whether the jury’s verdict was against the manifest weight of the evidence. Maple v.
Gustafson, 151 Ill. 2d 445, 455 (1992). A verdict is against the manifest weight of the evidence
where the opposite conclusion is clearly evident or where the findings of the jury are
unreasonable, arbitrary, and not based upon any of the evidence. Id. at 454. A trial court’s ruling
on a motion for a new trial will not be reversed except in those instances where it is affirmatively
shown that it clearly abused its discretion. Id. at 455.
The appellant has the burden to present a sufficiently complete record to support a claim
of error on appeal. Webster v. Hartman, 195 Ill. 2d 426, 432 (2001) (citing Foutch v. O’Bryant,
99 Ill. 2d 389, 391-92 (1984)). Indeed, "[f]rom the very nature of an appeal it is evident that the
court of review must have before it the record to review in order to determine whether there was
the error claimed by the appellant." Foutch, 99 Ill. 2d at 391. Where the issue on appeal relates to
the conduct of a hearing or proceeding, this issue is not subject to review absent a report or
record of the proceeding. Webster, 195 Ill. 2d at 432. Without such a record, it is presumed that
the order entered by the trial court is in conformity with the law and has a sufficient factual basis.
Foutch, 99 Ill. 2d at 392; Webster, 195 Ill. 2d at 432. "Any doubts which may arise from the
incompleteness of the record will be resolved against the appellant." Foutch, 99 Ill. 2d at 392.
In Foutch, the defendants’ motion to vacate judgment was denied by the trial court.
Defendants failed to present a complete record of the hearing on review. The appellate court
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affirmed the decision of the trial court, and our supreme court affirmed. The supreme court
stated: "As there is no transcript of the hearing on the motion to vacate here, there is no basis for
holding that the trial court abused discretion in denying the motion." Foutch, 99 Ill. 2d at 392.
Here, as noted, plaintiff’s testimony at trial is not included in the record on appeal. The
importance of this testimony is underscored by plaintiff’s repeated references to it in her brief, but
without proper citation to the record.4 Plaintiff thus argues the jury’s verdict was against the
manifest weight of the evidence, but she fails to include in the record all of the relevant evidence
that was actually presented to the jury. Without a transcript of plaintiff’s trial testimony, there is
no adequate basis for concluding the trial court abused its discretion in denying plaintiff’s motion
for a new trial. See Foutch, 99 Ill. 2d at 392. In this situation, we presume the order entered by
the trial court was in conformity with the law and had a sufficient factual basis. Id. Any doubts
arising from the incompleteness of the record are resolved against plaintiff, the appellant in this
case. Id.Plaintiff next argues the trial court erred in denying her motion for a directed verdict. As
plaintiff correctly notes, a motion for a directed verdict is properly granted only where all of the
evidence, viewed in the light most favorable to the nonmoving party, so overwhelmingly favors
the movant that no contrary verdict could ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37
Ill. 2d 494, 510 (1967). Plaintiff emphasizes that, when faced with this issue, a reviewing court
4
Plaintiff also failed to include in the record any of what defendant describes as "the court
reported transcripts from the hearing on plaintiff’s motion for a new trial," which, according to
defendant, "would have contained [the judge’s] detailed explanations for all of his rulings in this
case."
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"must consider all of the evidence."
The difficulty here is that, without a transcript of plaintiff’s trial testimony, we are
prevented from considering "all the evidence." We do not know, for example, if plaintiff testified
as to how the accident occurred, or whether, as plaintiff contends in her brief, her version differed
from defendant’s; nor do we know in what ways the two versions might have differed.5 "Where
the issue on appeal relates to the conduct of a hearing or proceeding, this issue is not subject to
review absent a report or record of the proceeding." Webster, 195 Ill. 2d at 432. Here again,
absent a transcript of plaintiff’s trial testimony, we presume the order entered by the trial court
denying the motion for directed verdict was in conformity with the law and had a sufficient factual
basis. See Foutch, 99 Ill. 2d at 392. Any doubts arising from the incompleteness of the record are
resolved against plaintiff. Id.Plaintiff next advances a series of arguments regarding "errors in certain rulings" of the
trial court. Plaintiff first argues the trial court erred in allowing Dr. Glantz to rely, in his
testimony, on a portion of the police report in this case. The police report, which was prepared
shortly after the accident, shows a check mark in the box labeled "No Injury/Drive Away." Dr.
Glantz relied, in part, on this portion of the police report in formulating his opinions regarding
plaintiff’s alleged injuries. At trial, the following colloquy occurred between defense counsel and
Dr. Glantz:
5
Plaintiff also failed to include in the record what defendant describes as "the court
reported transcript of the proceedings wherein the arguments for and against the motion for a
directed verdict were made and the bases upon which [the judge] properly denied the motion for a
directed verdict [were presented]."
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"Q. Doctor, *** in terms of rendering your expert opinions
in this case as well as others in terms of what injuries, if any, were
sustained in a car accident, is it part of your custom and practice to
review information that would be contained in a police report from
the traumatic event, the motor vehicle accident?
A. Yes.
Q. And you reviewed the police report in this
particular case, correct?
A. Yes.
Q. And you’re using that as one piece of the puzzle, so to speak,
one part in basing your opinions of what injuries, if any, Ms. Han sustained
in this accident, correct?
A. Yes, just one part.
Q. And from reviewing the police report, did you note if any
injuries were reported by Ms. Han in this case?
A. There were none.
***
Q. And what’s the significance *** if any, of the fact that no injury
was reported at the scene of the accident to the police by Ms. Han, what’s
the significance of that in terms of rendering your opinions about what
injuries she suffered in this case?
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MR. BASILE (plaintiff’s counsel): Same objection, ask that the
testimony be stricken.[6]
BY THE WITNESS:
A. Well, the significance is – and it’s just one piece of information.
If somebody has a significant injury at the time of an accident, more likely
than not they will be complaining of something immediately and will
require emergency room treatment. However, that doesn’t absolutely mean
that because they didn’t complain of anything initially that they couldn’t
have had a muscle sprain because sometimes a muscle sprain becomes
more painful six, ten hours later. So it doesn’t absolutely rule things out,
but it suggests that a significant injury did not occur. If you *** blow out a
disk at the time of a motor vehicle accident, you will be having pain
immediately, not even a few hours later."
Initially, plaintiff appears to argue that, in allowing such testimony, the trial court
improperly admitted a portion of the police report into evidence. However, as defendant correctly
notes, the police report in this case was never admitted into evidence.
Plaintiff next contends Dr. Glantz’s testimony is untrue. Citing her own testimony at trial,
plaintiff asserts she never told the police she was not injured. Here again, because plaintiff’s trial
testimony is not included in the record, there is no proper citation to the record in support of this
alleged testimony. Without a transcript of this testimony, we do not know if plaintiff testified, as
6
The trial court overruled this objection.
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she asserts in her brief, that she never spoke to the police but that defendant did.
Plaintiff also points to Wilson v. Clark, 84 Ill. 2d 186 (1981), which adopted Federal Rule
of Evidence 703. Federal Rule 703 provides that the facts or data upon which an expert bases an
opinion need not be admissible in evidence "[i]f of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the subject." Fed. R. Evid. 703 (quoted in
Wilson, 84 Ill. 2d at 193). Citing Dugan v. Weber, 175 Ill. App. 3d 1088 (1988), and People v.
Ward, 61 Ill. 2d 559 (1975), as well as Wilson, plaintiff argues that this Rule 703 language, when
applied to physicians, refers only to reports made and utilized during the course of the physician’s
medical practice, and not reports formed for litigation purposes. Plaintiff asserts that Dr. Glantz,
a neurologist, would not utilize or rely on police reports as part of his medical practice, and it was
thus error to allow him to rely on the police report in his testimony in this case.
We do not interpret Rule 703, as adopted by Wilson, so narrowly. Instead, we agree with
the trial court that the testimony in question here was allowable under Illinois Pattern Jury
Instructions, Civil, No. 2.04 (2005) (hereinafter, IPI Civil (2005) No. 2.04), which is based, in
part, on Wilson, and which was given to the jury in this case. In instructing the jury pursuant to
IPI Civil (2005) No. 2.04, the judge stated:
"I have allowed witnesses to testify in part to records that have not been
admitted in evidence. This testimony was allowed for a limited purpose. It
was allowed so that the witness may tell you what he relied on to form his
opinions. The material being referred to is not evidence in this case and
may not be considered by you as evidence. You may consider the material
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for the purpose of deciding what weight, if any, you will give the opinions
testified to by the witnesses."
Plaintiff next argues the trial court erred in allowing Dr. Glantz to rely on photographs of
the two vehicles in opining that because there was minimal damage to the vehicles, there was
minimal force, and therefore less likelihood of significant injury. Plaintiff points to the following
colloquy between defense counsel and Dr. Glantz:
"Q. One of the other things you looked at were the photographs of
the two vehicles involved in this case; is that right?
A. Yes.
MR. BASILE (plaintiff’s counsel): Same objection as before, move
to strike any testimony regarding photographs pursuant to a motion in
limine.[7]
BY MR. KOPPELMAN (defendant’s counsel):
Q. Now, can you tell the ladies and gentlemen of the jury as to why
you found the photographs in this particular case to be significant in
rendering your opinions?
A. Well, the photographs are significant in that the photo depicting
[plaintiff’s] automobile shows minimal damage. All I can see is a small
scratch on her bumper, and the photo depicting the other car that
apparently struck the rear part of [plaintiff’s car] doesn’t show any
7
This objection and the one following it were both overruled by the trial court.
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damage. So I find that significant in that the amount of force that was
generated at the time of the accident was minimal.
Q. And the fact that there was minimal force, if any, sustained to
both of the vehicles involved, how did you use that in terms of rendering
your overall opinion as it relates to your view of the entire case?
MR. BASILE: Objection as to foundation, qualification of this
witness. Move *** to strike all testimony regarding this.
BY THE WITNESS:
A. Well, it helps me in part. I’ve obviously reviewed all of the other
medical details, but in addition to those medical details, that also tells me
that with minimal accidental injury to the motor vehicle and therefore
minimal force it’s not likely that there was any significant injury that was
suffered to an individual with minimal force of that kind."
Plaintiff argues there was no indication that Dr. Glantz had the education, training,
experience, knowledge, or qualifications to opine that, based on the minimal damage shown in
photographs8 of the vehicles, the force of impact was minimal and the likelihood of significant
injury therefore was low.
In Fronabarger v. Burns, 385 Ill. App. 3d 560 (2008), the court rejected a similar
argument in a case involving a traffic accident where the plaintiff complained of lower-back pain
8
The photographs of the vehicles were introduced into evidence by plaintiff during her
case in chief.
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after her vehicle was rear-ended by the defendant’s vehicle. The defendant’s expert witness, a
board certified neurologist with experience treating auto accident patients, relied in part on photos
of the vehicles in forming an opinion of the injuries sustained by the plaintiff in the accident. The
neurologist testified that the photos were significant because they showed no damage, and the
photos were evidence of the amount of force, if any, sustained in the car accident. The neurologist
stated: "[I]f the vehicle doesn’t sustain any evidence of an impact, then it’s not likely that the
people in the vehicle are going to have significant evidence of an impact." (Internal quotation
marks omitted.) Id. at 563. The court held the neurologist could rely in part on the photographs in
forming her opinion regarding plaintiff’s injuries. In reaching this conclusion, the court noted:
"'Illinois case law is replete with physicians who have testified, based on observation and
experience, regarding their opinion of whether a claimant was injured.’ " Id. at 566 (quoting
Jackson v. Seib, 372 Ill. App. 3d 1061, 1073 (2007)).
Here, Dr. Glantz, a board-certified neurologist with experience treating auto accident
patients, testified that he relied, in part, on the photographs showing little or no vehicle damage in
forming his opinion as to the injuries sustained by plaintiff in the accident. Dr. Glantz testified,
similar to the neurologist in Fronabarger, that "with minimal accidental injury to the motor
vehicle and therefore minimal force it’s not likely that there was any significant injury that was
suffered to an individual with minimal force of that kind."
The trial court properly allowed Dr. Glantz to opine that, based in part on the photographs
of the vehicles involved in the accident, the force of impact was minimal and the likelihood of
significant injury therefore was low.
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Plaintiff next argues the trial court erred in failing to allow Javier Quinones, allegedly
trained in automobile mechanics and automobile construction, to be called as a rebuttal witness
regarding physical damage to vehicles depicted in photographs. In her brief, plaintiff asserts,
without citation to the record, that the trial court denied the request because Quinones’ testimony
could have been presented in plaintiff’s case in chief. The only citations to the record are to (1)
two portions of the record that refer to the calling of a police officer as a potential rebuttal
witness, but that make no mention of Quinones, and (2) two different witness lists with Quinones’
name handwritten thereon. There is no other citation to the record that addresses Quinones.
Plaintiff acknowledges it is within the trial court’s discretion to admit or exclude any such
purported rebuttal testimony. See Barth v. Massa, 201 Ill. App. 3d 19, 33 (1990). In this
situation, we presume the trial court’s ruling was correct. See Foutch, 99 Ill. 2d at 392; Webster,
195 Ill. 2d at 432.
Plaintiff also argues the trial court improperly allowed Dr. Glantz to opine that trigger
point injections and epidural injections should not be given at the same time, as they were to
plaintiff by Dr. Diesfeld. In the testimony at issue, Dr. Glantz stated it is "not typical" to give such
injections at the same time. "It’s not totally impossible that somebody might do that," Dr. Glantz
continued, "but it’s not typical." Dr. Glantz further explained:
"[Y]ou’ve got to do one or the other. If somebody is complaining of
muscle spasm, let’s say, from a sprain and you want to treat that, you can
do these trigger points, but you sort of have to make one diagnosis or the
other, is this a muscle sprain problem or is this a lumbar radicular problem?
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If it’s a lumbar radicular problem, you don’t give the trigger injections, you
give the epidural. So it’s a matter of making the correct diagnosis and
treating that correct diagnosis."
According to plaintiff, this testimony improperly referred to a standard of care which was not
disclosed and which Dr. Glantz was not qualified to give.
Defendant counters that this case did not involve medical malpractice or any standard of
care issues. Defendant argues, however, that the reasonableness of the treatments allegedly
rendered and the costs associated with those treatments were at issue in this case, where plaintiff
sought compensation for these various medical procedures. Defendant asserts his Rule 213(f)(3)
disclosures did state Dr. Glantz would testify about the reasonableness of the treatments allegedly
received by plaintiff.9 According to defendant, it was within Dr. Glantz’s qualifications and
expertise to opine that it was not reasonable to provide both epidurals and trigger point injections
to plaintiff at the same time.
We agree with defendant, and conclude the trial court did not err in allowing this
testimony by Dr. Glantz.
Finally, plaintiff argues defense counsel, in closing argument, improperly asked the jury to
"have some sympathy for my client as he is being asked to pay over $41,000 in medical bills."
Plaintiff notes that she objected, and the trial court sustained the objection.
In support of the language quoted, plaintiff points to a portion of the record which does
9
Defendant’s Rule 213(f)(3) disclosures stated, in relevant part, that Dr. Glantz would
testify "with respect to Plaintiff’s alleged injuries, the reasonableness of any alleged bills for
treatments received by the Plaintiff and the appropriateness of alleged treatments in this matter."
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not include that language. Indeed, the page cited by plaintiff is actually part of the transcript of
counsel’s arguments regarding motions in limine. The record in this case does not include the
parties’ closing arguments.
In order to support a claim of error on appeal, the appellant has the burden to present a
sufficiently complete record. Webster, 195 Ill. 2d at 432. "Where the issue on appeal relates to the
conduct of a hearing or proceeding, this issue is not subject to review absent a report or record of
the proceeding." Id. Any doubts arising from the incompleteness of the record are resolved
against the appellant. Foutch, 99 Ill. 2d at 392. Here, such doubts are resolved against plaintiff.
We presume that any error that might have occurred during closing argument was cured by the
trial court. See Foutch, 99 Ill. 2d at 392; Wilbourn v. Cavalenes, 398 Ill. App. 3d 837, 855
(2010).
CONCLUSION
For the foregoing reasons, we affirm the decision of the circuit court of Cook County.
Affirmed.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
HYE RA HAN,
Plaintiff-Appellant,
v.
WILLIAM HOLLOWAY,
Defendant-Appellee.
No. 1-10-0568
Appellate Court of Illinois
First District, Second Division
March 1, 2011
JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Cunningham and Justice Karnezis concurred in the judgment.
Appeal from the Circuit Court of Cook County.
The Honorable Richard J. Elrod, Judge Presiding.
Basile Law Firm, 180 N. LaSalle Street, Suite 1450, Chicago, Illinois 60601,
(Mark G. Basile, of counsel), for APPELLANT.
LaRose & Bosco, Ltd., 200 North LaSalle Street, Suite 2810, Chicago, Illinois 60601,
(David Koppelman, Andrew Sperry and David J. Berault, of counsel), for APPELLEE.
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