Claro v. DeLong ( 2016 )

NOTICE
2016 IL App (5th) 150557
Decision filed 08/31/16. The
text of this decision may be NO. 5-15-0557
changed or corrected prior to
the filing of a Peti ion for
Rehearing or the disposition of IN THE
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
LARRY CLARO, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) St. Clair County.
)
v. ) No. 14-L-236
)
SHIRLEY ANN DeLONG, ) Honorable
) Vincent J. Lopinot,
Defendant-Appellee. ) Judge, presiding.
________________________________________________________________________
JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion.
Presiding Justice Schwarm and Justice Stewart concurred in the judgment and
opinion.
OPINION
¶1 Plaintiff, Larry Claro, appeals from a judgment of the circuit court of St. Clair
County in favor of defendant, Shirley Ann DeLong, entered after a jury returned a
general verdict in favor of defendant in a negligence action brought by plaintiff after
defendant collided with plaintiff's vehicle. The issues on appeal are (1) whether the
verdict in favor of defendant was against the manifest weight of the evidence and (2)
whether plaintiff was entitled to a judgment notwithstanding verdict (judgment n.o.v.).
For the following reasons, we reverse and remand with directions to enter judgment in
favor of plaintiff and to hold a new trial on the issue of damages only.
1
¶2 FACTS
¶3 On January 11, 2013, plaintiff was driving his Honda Accord and was stopped at a
stoplight when he was rear-ended by defendant, who was driving a Dodge Durango.
Prior to trial, defendant admitted liability, and a jury trial was held on the issue of
damages only. At the time of trial, plaintiff was 57 years old. The accident in question
occurred when plaintiff was 55.
¶4 Plaintiff works as an auto body repairman. He testified he started working at his
father's body shop as a young man. Over the years, he has worked in several different
auto body shops. At the time of trial, he was employed by an auto body shop doing
heavy repair work with the chance to possibly buy the business from its current owners.
¶5 Defendant testified she was stopped behind plaintiff at a stoplight. She estimated
she was stopped for five or six seconds when the brake released "like there was air in the
line or something. It just went down." Her vehicle then rolled two or three feet into
plaintiff's vehicle. She said there was "very little impact." She testified that both she and
plaintiff exited their vehicles to check to see if everyone was okay, which they were. The
parties called the police, took care of business, and both drove away from the scene.
Defendant admitted plaintiff was certainly caught off guard and surprised at the time of
impact. She said she drove away from the scene even though her brakes malfunctioned
because the brakes had never done that before, and she "just assumed everything was
okay."
¶6 Plaintiff testified defendant struck him while she was traveling between 15 to 20
miles per hour and that immediately after the accident defendant was flustered.
2
Defendant opened her left rear door, fumbled around on the floorboard, and retrieved a
cell phone. Plaintiff did not immediately seek medical attention. Plaintiff testified in the
days and weeks following the accident, he was sore and aching in his right shoulder. He
took ibuprofen and thought the pain would get better, but the pain worsened.
¶7 Plaintiff continued to work and did not miss any time from his job as a result of
the accident. However, due to increasing pain, he got to the point where he could not
sleep well. His girlfriend recommended he go to a chiropractor, Dr. Dale Fischer.
Plaintiff sought treatment with Dr. Fischer, and that treatment initially helped. However,
when his recovery hit a plateau, Dr. Fischer referred him to Dr. Matthew Gornet, an
orthopedic surgeon.
¶8 Plaintiff saw Dr. Gornet three times in 2013. Plaintiff went back to see Dr. Gornet
on June 11, 2015, after plaintiff continued to experience neck pain. Ultimately, Dr.
Gornet recommended a steroid injection, which helped reduce plaintiff's symptoms.
However, plaintiff still experiences pain in the right side of his neck and down his
shoulder, especially when he is doing something strenuous. Plaintiff testified the pain is
tolerable if he is sitting in a chair watching television, but at the end of a 10-hour work
shift, his pain is "not good."
¶9 Plaintiff testified that he suffered a herniated disc in his lower back 13 years ago
as a result of picking up a tailgate off the floor. He missed six weeks of work due to that
injury, but was up to light duty after three months and ultimately released for full duty.
Plaintiff testified that prior to the instant accident, he did not take ibuprofen for pain, but
he now takes it two to three times per week.
3
¶ 10 Plaintiff fixed his own car. He said the amount of damage sustained in the impact
was much greater than damage that would be caused by tapping a bumper. Plaintiff
explained that it did not appear as though his car sustained much damage, but when he
took the bumper off, he found significant damage and that the impact "pushed in the rear
body panel, which is actually a structural piece that ties the whole rear of the vehicle
together for safety. And the area of the taillight would be pushed in a little bit. And there
was also damage on the trunk lid."
¶ 11 Plaintiff further testified about medical bills he incurred as a result of the accident
for services provided by Dr. Fischer, Dr. Gornet, and MRI Partners of Chesterfield, and
Dr. Kaylea Boutwell. Plaintiff's exhibit No. 1 shows medical bills totaling $17,772.79.
¶ 12 Both Dr. Fischer and Dr. Gornet testified the symptoms plaintiff experienced were
consistent with a rear-end collision and opined that within a reasonable degree of medical
certainty plaintiff's complaints and need for treatment were related to the January 11,
2013, accident. Dr. Fischer testified that he initially evaluated plaintiff on February 14,
2013, at which time plaintiff gave a history of a motor vehicle accident in January.
Plaintiff said he did not have any neck or shoulder pain prior to the accident. Dr. Fischer
noted that plaintiff could not even hold his head up straight on the day of his initial
examination and that upon physical examination plaintiff demonstrated a significantly
limited range of motion.
¶ 13 Dr. Fischer testified it is extremely common for patients to wait to seek treatment
after an injury in the hope that the condition will resolve itself. Dr. Fischer testified the
X-rays he took of plaintiff showed more than just degenerative changes, and he initially
4
diagnosed plaintiff with at least a severe strain of the cervical spine. Dr. Fischer initially
recommended conservative treatment through ultrasound and supplementation, after
which plaintiff's pain decreased from a 10 to a 5 on the pain scale. When plaintiff's pain
plateaued at that level, Dr. Fischer referred plaintiff to Dr. Gornet.
¶ 14 Dr. Gornet, a board-certified orthopedic surgeon whose practice is devoted
exclusively to spinal surgery, testified that plaintiff's choice to see a chiropractor rather
than a physician was appropriate for his symptoms and it is common for Dr. Fischer to
refer patients to him if chiropractic care does not alleviate all of a patient's symptoms.
Dr. Gornet testified plaintiff has structural injury to his cervical spine, which was causing
his neck, right shoulder, and arm pain. An MRI performed on August 12, 2013, showed
two herniated discs. Plaintiff has right-sided herniation at C5-6, causing narrowing of the
nerve channel, and a smaller herniation at C6-7. Dr. Gornet believes the herniation at
C5-6 is due to the car accident, but the herniation at C6-7 is due to degenerative changes.
Dr. Gornet treated plaintiff on June 10, August 12, and November 11, 2013. Dr. Gornet
did not place any restrictions on plaintiff.
¶ 15 Plaintiff testified he tried to live with his symptoms, but when his symptoms did
not dissipate, he returned to Dr. Gornet on June 11, 2015. Plaintiff confirmed he did not
sustain any new injuries since the 2013 auto accident. Dr. Gornet ordered a second
cervical spine MRI to ensure plaintiff's pathology had not changed. The results of the
second MRI revealed the same pathology and confirmed that the herniated discs were the
source of plaintiff's symptoms. Both MRI films were introduced into evidence.
5
¶ 16 Dr. Gornet recommended a steroid injection, which calms inflammation and
relieves symptoms. Dr. Gornet referred plaintiff to Dr. Boutwell, who performed the
injection in July 2015. When plaintiff came back to Dr. Gornet after the injection,
plaintiff said his conditions improved after the injection. Dr. Gornet advised plaintiff to
live with his symptoms as long as possible. He testified plaintiff can receive additional
injections, but if the injections do not continue to work, Dr. Gornet would recommend
disc replacement surgery, which would cost around $60,000. Dr Gornet testified that
symptoms like plaintiff's "tend to always come back."
¶ 17 Dr. Gornet testified that within a reasonable degree of medical certainty, plaintiff's
injuries and probable need for additional treatment are related to the January 11, 2013,
auto accident, noting that plaintiff had no significant problems before the accident.
Defense counsel questioned Dr. Gornet about defendant's exhibit No. 1, in which Dr.
Fischer noted that plaintiff sustained a herniated disc 13 years ago. Dr. Gornet testified
on redirect that there was no mention of where the herniated disc was located and no
mention of a prior cervical MRI and nothing to indicate that plaintiff required any
injections prior to the accident.
¶ 18 Both plaintiff's Verdict Form A and defendant's General Verdict Form C were
submitted to the jury. The general verdict was submitted over plaintiff's objection. After
deliberations, the jury returned the general verdict form finding in favor of defendant and
against plaintiff. No damages were awarded. Plaintiff moved for judgment n.o.v., which
the trial court denied. Plaintiff filed a timely notice of appeal.
6
¶ 19 ANALYSIS
¶ 20 The first issue is whether the verdict in favor of defendant and against plaintiff is
against the manifest weight of the evidence. Plaintiff contends that here where defendant
admitted liability and there was uncontroverted evidence linking his injuries to the
accident, the jury's general verdict is against the manifest weight of the evidence and he
is entitled to a new trial on the issue of damages. Defendant responds that even though
she admitted liability, there was sufficient evidence in the record for the jury to conclude
that plaintiff was not injured as a proximate result of the accident. After careful
consideration, we agree with plaintiff.
¶ 21 A reviewing court will set aside a jury's verdict if it is " 'contrary to the manifest
weight of the evidence.' " Maple v. Gustafson, 151 Ill. 2d 445, 454, 603 N.E.2d 508, 512
(1992) (quoting Mizowek v. De Franco, 64 Ill. 2d 303, 310, 356 N.E.2d 32, 36 (1976)).
A verdict is against the manifest weight of the evidence in cases in which the opposite
conclusion is clearly evident or the findings of the jury are unreasonable, arbitrary, and
not based upon the evidence. Id. Because the jury entered a general verdict, we do not
know on what basis it made its findings. Id. at 449, 603 N.E.2d at 510. For example, we
do not know whether the jury entered its verdict in favor of defendant because it found no
causal connection between plaintiff's alleged injuries and the accident or whether it found
plaintiff suffered no damages as a result of the accident. However, we find the evidence
at trial overwhelmingly established plaintiff was injured in the collision and suffered
damages, and a contrary verdict cannot stand.
7
¶ 22 The instant case is similar to Wiggins v. Bonsack, 2014 IL App (5th) 130123, 16
N.E.3d 393. In that case, the plaintiff appealed after a jury returned a general verdict in
favor of defendant in an automobile case. The record showed the accident occurred when
the defendant was attempting to make a left turn out of a gas station at a busy
intersection, which required her to cross two lanes of traffic headed in the opposite
direction. Id. ¶ 17. After a man in a red truck made a waving motion, the defendant
assumed it was safe for her to make the turn. Id. The defendant admitted she could not
see the lane next to the red truck and never saw the plaintiff's car prior to impact. Id. The
defendant thought the man in the red truck was mainly at fault but admitted she was also
at fault for trusting the man in the red truck when she could not see into the lane of
oncoming southbound traffic in which the plaintiff was traveling. Id. The defendant also
admitted the plaintiff did nothing to cause the accident. Id.
¶ 23 The plaintiff argued the evidence at trial overwhelmingly established she was
injured in the collision and a contrary verdict could never stand. Id. ¶ 22. The plaintiff
offered the testimony of her chiropractor, who testified the plaintiff's injuries were
consistent with the type of accident that occurred and her delay in treatment was not
unusual given her tender years of 15 and her belief the symptoms would disappear. The
defendant offered no evidence to the contrary. Id. ¶ 26. Nevertheless, the defendant
argued the evidence did not establish the plaintiff was injured in the collision, and she
was not required to present her own medical testimony but properly discredited the
plaintiff and her chiropractor on cross-examination. Id. The defendant asserted that
8
given the delay in symptoms and an 87-day delay in treatment, plaintiff was not entitled
to either a judgment n.o.v. or a new trial. Id.
¶ 24 We reversed the general verdict in favor of the defendant and remanded with
directions to enter judgment in favor of the plaintiff and hold a new trial on the issue of
damages, because the record was clear that the defendant's negligence was the proximate
cause of the accident and it was difficult to imagine how an inference could be drawn that
the plaintiff did not suffer any actual injury due to defendant's negligence. Id. ¶¶ 26-27.
We disagree with defendant's assertion that the instant case is inapposite of Wiggins. We
find the instant case even stronger than Wiggins because here defendant actually admitted
liability before the trial even started. The only issue was damages.
¶ 25 Plaintiff's treating chiropractor and orthopedic surgeon both testified there was a
causal connection between the accident and plaintiff's injuries. Both medical
professionals testified it was not unreasonable for plaintiff not to immediately seek
medical attention. Defendant offered no contrary medical opinion. Moreover, there was
no evidence of any intervening accident that would have caused plaintiff's injuries.
While there was a question of a prior herniation, it is clear that was a low back injury
some 13 years prior to the accident in question. The instant injury and resulting pain
were in plaintiff's neck and right shoulder.
¶ 26 Even considering degenerative changes have occurred in plaintiff and might be
causing him some pain, the record is clear that plaintiff suffered injuries due to the rear-
end collision caused by defendant. Dr. Fischer testified X-rays he took showed more
than mere degenerative changes in plaintiff. He initially diagnosed plaintiff with at least
9
a severe strain of the cervical spine. Dr. Gornet later diagnosed plaintiff with a herniated
disc at C5-6, which he said was caused by defendant's January 11, 2013, rear-end
collision with plaintiff. Plaintiff testified about medical bills he incurred as a result of the
accident with defendant. Under these circumstances, we fail to see how a reasonable
inference could be drawn from the evidence presented that plaintiff did not actually suffer
any injuries or damages due to defendant's negligence. Due to our determination on the
first issue, we need not address the second issue.
¶ 27 For the foregoing reasons, we reverse the judgment of the circuit court of St. Clair
County and remand with directions to hold a new trial on the issue of plaintiff's damages.
¶ 28 Reversed and remanded with directions.
10
2016 IL App (5th) 150557
NO. 5-15-0557
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
LARRY CLARO, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) St. Clair County.
)
v. ) No. 14-L-236
)
SHIRLEY ANN DeLONG, ) Honorable
) Vincent J. Lopinot,
Defendant-Appellee. ) Judge, presiding.
________________________________________________________________________
Opinion Filed: August 31, 2016
________________________________________________________________________
Justices: Honorable Richard P. Goldenhersh, J.
Honorable S. Gene Schwarm, P.J., and
Honorable Bruce D. Stewart, J.,
Concur
________________________________________________________________________
Attorneys Michelle M. Rich, Kristina D. Cooksey, Thomas C. Rich, Thomas C.
for Rich, P.C., 6 Executive Drive, Suite 3, Fairview Heights, IL 62208
Appellant
________________________________________________________________________
Attorneys Daniel L. Bradley, Darrell J. Flesner, DeFranco & Bradley, P.C.,
for 141 Market Place, Suite 104, Fairview Heights, IL 62208
Appellee
________________________________________________________________________