Donnellan v. First Student

FOURTH DIVISION
JUNE 19, 2008
No. 1-06-2418
VINCENT DONNELLAN, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 02 L 11569
)
FIRST STUDENT, INC., )
) Honorable Arthur L. Janura, Jr.
Defendant-Appellant ) Judge Presiding.
)
(Earl F. McClendon, )
)
Defendant.) )
JUSTICE MURPHY delivered the opinion of the court:
On February 11, 2002, plaintiff Vincent Donnellan’s cargo van was rear-ended by a
school bus driven by an employee of defendant First Student, Inc. Plaintiff, 31 years old on the
date of the accident, had no adverse health issues at the time. Plaintiff alleged in his complaint
that, as a result of the accident, he suffered numerous permanent physical and mental injuries.
Defendant conceded its negligence in the accident, but disputed that the accident was the
proximate cause of plaintiff’s alleged injuries.
On April 7, 2006, following several days of trial, the jury returned a verdict in favor of
plaintiff for $6 million. Defendant seeks reversal of the jury verdict or, alternatively, reversal of
the damages award and remand for new trial on damages or substantial remittitur. Defendant
No. 1-06-2418
argues that the trial court abused its discretion and committed prejudicial error in allowing
plaintiff’s day-in-the-life video as demonstrative evidence but barred defendant’s surveillance
video. Defendant also argues that it was prejudiced by several evidentiary errors and the trial
court’s instructions to the jury. For the following reasons, we affirm the verdict of the jury.
I. BACKGROUND
On September 11, 2002, plaintiff filed a complaint against defendant and Earl F.
McClendon for injuries allegedly suffered due to defendant’s negligence in the February 11,
2002, accident. At the time, McClendon was defendant’s employee and driving the school bus
that rear-ended plaintiff. Prior to trial, McClendon was voluntarily dismissed and defendant
admitted negligence.
Prior to the commencement of trial on the issues of causation and damages, the trial court
heard the parties’ motions in limine. At issue on appeal are the trial court’s decisions regarding
plaintiff’s day-in-the-life video, a surveillance video completed for defendant, and, following a
hearing pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), testimony on the results
of a “Single Photon Emission Computer Tomography” (SPECT) scan of plaintiff’s brain.
A. Plaintiff’s Day-In-The-Life Video
The parties and the trial court watched the day-in-the-life video that the trial court
described as a 4.5-minute video of plaintiff arriving at his therapist’s office and going through
physical therapy. Defendant argued that the video was not demonstrative, but substantive
medical evidence, and that the audio and video depicted plaintiff in pain during his therapy
session. Defendant claimed that it was at a disadvantage from the late disclosure as it could not
2
No. 1-06-2418
depose the therapist or videographer before trial. The trial court found that, with the proper
foundation from someone with personal knowledge that the video truly and accurately depicts
what it shows, the video would be allowed as demonstrative evidence without audio. The trial
court further granted defendant the right to depose the physical therapist in the video.
B. Defendant’s Surveillance Video
Plaintiff sought to bar the use of a surveillance video defendant had taken of plaintiff less
than two months before trial. Two days before the case was assigned for trial, defendant
produced a copy of the video to plaintiff. Plaintiff asserted that the video was produced at such a
late date that he was prejudiced by his inability to explore the content of the video with any
witnesses. Furthermore, plaintiff argued that the videotape was edited from the total film taken
and sped up in such a way that it was not an accurate portrayal of plaintiff’s physical abilities.
Defendant argued that the surveillance video was relevant to the jury’s determination of
the effect of the injury on plaintiff’s daily lifestyle. Defendant also argued that the late disclosure
was not an issue, especially in light of the day-in-the-life video that was produced the day before
trial. The trial court granted the motion to bar the surveillance video at that time to allow an
opportunity for the court to review the video. The parties agreed not to mention the video during
opening argument.
At the end of plaintiff’s case, the trial court revisited the issue and held a foundational
hearing. Defendant presented the testimony of Michael Kobliska, the private investigator who
conducted the surveillance of plaintiff on February 9, 2006. Kobliska testified that he took the
video with a Super 8 camera and the original tape was then converted to compact disc format by
3
No. 1-06-2418
a third party. Kobliska did not know if the video was compressed or edited. However, he
admitted that some actions noted in his report were not shown in the video.
In response, plaintiff offered the testimony of Steven Grant, a media expert. Grant
testified to the effect of converting a Super 8 tape to MPEG computer file on compact disc.
Grant indicated that this process compresses a file from 10,000 megabytes to 400 megabytes. He
opined that this results in “tremendous changes” in the file.
In rendering its decision, the trial court first noted that there were issues with defendant’s
failure to disclose Kobliska as a witness during discovery and to seasonably supplement
discovery. The trial court stated that it would not consider the copied videos because it had the
original and the copies had been altered by the compression process. The trial court barred the
original video solely on a balancing of the probative value of the video and the possibility of
prejudice to plaintiff.
The trial court noted that defendant was offering the video as demonstrative evidence,
but, pursuant to People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 284-85 (2003), it could not
allow the video if the threat of prejudice substantially outweighed the probative value of the
video. The trial court found that the video had no probative value because it did not prove or
disprove any facts at issue. However, the threat of prejudice was determined to be substantial
because throughout the video, the view is obstructed. The trial court found that it is impossible
to determine what activity is going on and if plaintiff is doing any work. It opined that this could
prejudicially give the jury the impression that plaintiff was able to complete extensive work
without pain.
4
No. 1-06-2418
C. The Frye Hearing
Defendant also objected to the use of the SPECT scan and testimony regarding the
analysis of the scan. Defendant requested a Frye hearing on the SPECT scan technology.
Plaintiff presented the testimony of Dr. Dan G. Pavel, who testified that he was board certified in
nuclear medicine. Pavel testified that he was currently affiliated with the University of Illinois at
Chicago Hospital as a professor and had served an 11-month sabbatical with the National
Institute of Health from 1995 to 1996.
Pavel explained that a SPECT scan measures the amount of activity over an organ, in this
case the brain, by detecting tracer compounds injected into the patient. Pavel testified that he had
been involved with SPECT scans for about 14 years, including lecturing and publishing articles
on their use in brain trauma, and that they have been in wide use in hospitals throughout the
country for more than 20 years. Pavel testified that several articles on SPECT scans and brain
trauma had been written over that time but that the technology was continually evolving.
Because of his years of experience, Pavel was able to identify abnormalities in plaintiff’s
SPECT scans and make a differential diagnosis as to potential causes. Pavel testified that, with
the patient’s history and the SPECT scan results, he concluded that the injuries were consistent,
within a certain level of probability, with a traumatic brain injury. Pavel admitted that he did not
compare plaintiff’s scan with that of a “normal” baseline scan, but stated that no such scan exists
and he could only base his conclusion on his years of experience of reviewing SPECT scans.
Pavel also admitted that he could not opine that a traumatic brain injury caused the
abnormalities, but only that they were consistent with such an injury. Pavel responded that false
5
No. 1-06-2418
positives could, theoretically, be caused by a patient’s medication but, practically, this was very
unlikely. Accordingly, the trial court found that Pavel could not testify that the SPECT scan
allowed him to opine on a causal connection, but would be limited to stating, based on studies,
literature and his own experience, that the scan was consistent with a patient with a traumatic
brain injury.
D. Plaintiff’s Testimony
Plaintiff testified that he was born in Ireland in 1971 and moved to the Chicago area in
1996 where he found work as a carpenter. In 2000, plaintiff started an excavating company with
a friend. In addition, he started a business that framed out residential buildings. At the time of
the accident, plaintiff was driving his cargo van, which contained various tools and a generator
separated from the front seats by a metal cargo cage. Plaintiff was stopped in the left lane,
preparing to make a left turn. When plaintiff bent down to pick something up, McClendon rear-
ended the van with the school bus. Plaintiff was hit in the back of the head by either the
generator or a power tool that broke through the cargo cage and hit plaintiff. The van was
pushed through the intersection and down into a ditch and rendered inoperable.
Plaintiff testified that he was dizzy and had a headache, but he refused treatment at the
scene of the accident. A friend drove him home, where he went to bed. Later that day, plaintiff
felt great pain and continued to have a headache so he went to the emergency room. Plaintiff was
diagnosed with a cervical strain. Two days later, plaintiff returned to the emergency room due to
pain in the lower back and neck.
Plaintiff testified to the years of consultations, treatments, and physical therapy he had
6
No. 1-06-2418
received, and continued to receive, to treat his headaches and pain and sleep and vision problems
and to work on regaining mobility. Plaintiff takes several medications but could not recall which
types. For a period of time, plaintiff received painful steroid shots in the base of his neck to treat
his headaches. While these treatments seemed to work, they were discontinued as plaintiff began
to feel pain beyond the treatment time in the area that he received the shots. Plaintiff also
continued to receive Botox treatments to try and strengthen his leg.
Plaintiff testified to his typical day and week. On Monday and Thursday, plaintiff attends
therapy. On the other days of the week, plaintiff works for his friend Gavin Nicholas, as his
health allows. Plaintiff works in a supervisory capacity at construction sites, assuring that the
laborers, tradesmen and contractors are coordinated. After the accident, plaintiff obtained his
commercial driver’s license on his fourth attempt. While he still drives his car short distances,
plaintiff can no longer drive trucks or operate heavy machinery. Plaintiff testified that he often
has to close one eye and tilt his head to see properly when driving.
Plaintiff’s wife, Rosanne Donnellan, a pediatrician, testified that she and plaintiff were
engaged on December 24, 2001, and married on May 25, 2002, and that she was pregnant with
their first child. Rosanne testified that she first noticed plaintiff’s leg starting to turn in a few
months after the accident until it eventually was turned in at all times. Rosanne stated that
plaintiff had regular headaches, back spasms, vomiting due to pain, and sleep problems. In
addition, plaintiff complained of double vision and, as a result, he no longer reads for enjoyment.
Rosanne testified that plaintiff suffers serious memory lapses. She testified that she was
worried that this was a danger to plaintiff and their household. Rosanne also testified that
7
No. 1-06-2418
plaintiff’s problems have resulted in a drastic decrease in the couple’s attendance at social
functions because plaintiff does not want to suffer pain or people looking at him.
Gavin Nicholas, a contractor, met plaintiff in 1999 and remains his close friend. Nicholas
testified that plaintiff continues to work for him as a supervisor at construction sites. Plaintiff
does not complete any labor or operate machinery, but he coordinates laborers and tradesmen to
assure that work is getting done. Nicholas stated that plaintiff works as he is physically able and
that he frequently takes breaks during the day, sometimes returning home or to Nicholas’ home
to take a nap.
E. Plaintiff’s Diagnosis and Treatment
Dr. Gary M. Yarkony, board certified in physical medicine and rehabilitation since 1982,
first saw plaintiff on July 12, 2002. Plaintiff complained of neck and back pain when he visited
Yarkony. Yarkony suspected that plaintiff was suffering from a brain injury, including a cranial
nerve injury that was causing a problem with plaintiff’s eye muscle. Yarkony stated that this
type of injury is typically associated with traumatic brain damage and he ordered an MRI of
plaintiff’s brain. Yarkony testified that the MRI did not demonstrate any issues and he utilized
the later SPECT scan, which identified a brain injury, in his diagnosis. Yarkony also noted that
he first observed plaintiff walking with an unusual gait on July 16, 2003, during his visit. Using
a “little rehab doctor trick,” he observed plaintiff walking in the parking lot as he left the
examination to assure it was not an act.
Yarkony testified that plaintiff suffered a coup contre coup injury, meaning an injury to
the brain at the site of impact, the back of plaintiff’s brain, and the opposite side, the front of his
8
No. 1-06-2418
brain. In addition, Yarkony diagnosed plaintiff with fourth nerve palsy, dystonia, myofascial
pain, allodynia, occipital neuralgia, and depression. The result of these ailments are
hypersensitivity to pain, cognitive dysfunctions, double vision, headaches, sleeping and mood
problems and decreased ability to walk. Yarkony opined that plaintiff’s symptoms will all
naturally worsen as plaintiff ages and his body deteriorates.
Yarkony admitted that he did not diagnose dystonia or allodynia without input from
plaintiff’s wife. Yarkony stated that Rosanne first suggested that both of these ailments were
possible and he admitted that he ultimately diagnosed plaintiff with them, because “she was
right.” Yarkony also admitted that he referred plaintiff to a movement disorder specialist in
Chicago, but Rosanne took plaintiff to see a specialist at the Cleveland Clinic who did not
diagnose plaintiff with dystonia.
Dr. Michelle Muellner of the Rehabilitation Institute of Chicago (RIC) testified that she
treated plaintiff from April 2003 to July 2004 at the RIC chronic pain center. Plaintiff initially
complained principally of neck and lower-back pain. Muellner initially concluded that plaintiff
suffered chronic low-back pain with severe myofascial pain with both physical and psychological
components. Muellner explained that chronic myofascial pain arises when the brain replicates
the pain signal for the myofascial pain, pain between the muscle and connective tissues and
ligaments, into a continual pain.
Muellner did not find evidence of neurologic compromise in her original diagnosis.
Muellner testified that she was concerned that plaintiff was simulating or magnifying the
symptoms and that he had exhibited several signs that triggered this fear, a concern that
9
No. 1-06-2418
plaintiff’s prior treating physician had shared with Muellner. However, she opined that he was
not consciously exaggerating his symptoms.
Muellner testified that she was concerned that pending litigation was a stressor that could
increase pain and prolong treatment. Muellner also was concerned that plaintiff’s wife had too
much of an active a role in his treatment. She feared that this could inhibit his treatment as
plaintiff would less readily take on his recovery, accept his injuries and move on in his
rehabilitation. Muellner also advised plaintiff, who continued to work full-time during the early
phase of her treatment of him, to pace himself or he would not have successful treatment.
Upon plaintiff’s discharge from Muellner’s care on July 13, 2004, her concluding
diagnosis of plaintiff’s injuries remained chronic myofascial pain and traumatic brain injury.
Muellner opined that plaintiff’s conditions resulted from the automobile accident at issue in this
case. Muellner also testified that plaintiff would continue to suffer pain and memory loss as a
result of his injuries and that he would not be able to return to his prior jobs as an excavator and
carpenter.
Plaintiff presented the evidence deposition of Dr. James Kelly, a board-certified
neurologist who, upon referral from Dr. Muellner, saw plaintiff twice in April and May 2003.
Kelly testified that he diagnosed plaintiff with fourth cranial nerve palsy, which causes plaintiff’s
right eye to drift down, affecting plaintiff’s motor skills and ability to read and drive. Kelly also
determined that plaintiff suffered from a mild form of concussion or mild traumatic brain injury
due to the symptoms he presented including headaches, migraine headaches, occipital neuralgia,
dystonia, memory loss, sleep disturbances and personality changes. Kelly opined that these
10
No. 1-06-2418
conditions were a result of the biomechanical injury suffered in the accident. Kelly did not
believe that plaintiff was exaggerating his symptoms or that he was a malingerer. Kelly
prescribed medications in addition to those prescribed by Muellner.
From November 11, 2003, to December 2005, Drs. Anita Rao and Santhanam Suresh,
anesthesiologists at Children’s Memorial Hospital, treated plaintiff for his headaches caused by
occipital neuralgia. Rao testified at trial that Suresh, a pediatric specialist, had administered
about 12 occipital nerve blocks to plaintiff. Rao related that these blocks involve several
injections of local anesthetic into the base of the skull where the occipital nerve lies and they
provide temporary relief of head and neck pain. These treatments were successful, but Suresh
referred plaintiff to her so he could see an adult pain specialist.
Rao testified that she administered five additional occipital nerve blocks to plaintiff. In
addition, Rao performed a radio frequency thermal ablation procedure in the hope of providing
longer-lasting relief to plaintiff. This procedure involves insertion of a small needle with a
current attached to it into the area of the nerve that heats up the area and slows down the firing of
the nerve causing the pain. Rao testified that these treatments helped decrease plaintiff’s pain but
that at the end of the treatment period he was still suffering from headaches.
Dr. Pavel testified about the relationship of blood flow to the function of the brain and the
SPECT scan that was administered in September 2004. Pavel testified at length about symptoms
that result from decreased function in different areas of the brain. Consistent with the court’s
ruling on defendant’s motion in limine following the Frye hearing, Pavel testified that the
SPECT scan of plaintiff’s brain presented some of these abnormalities and that they were
11
No. 1-06-2418
consistent with a traumatic brain injury. Pavel testified over objection that it was his opinion the
abnormalities identified in the SPECT scan were permanent in nature.
Plaintiff presented the evidence deposition of Dr. J. Jerry Rodos, a board certified
osteopathic physician practicing psychiatry, who first saw plaintiff on August 24, 2006. Rodos
prescribed a brain SPECT scan to help determine what was happening in plaintiff’s brain. Rodos
testified that Dr. Pavel found that plaintiff’s SPECT scan revealed a pattern of blood flow
consistent with a traumatic brain injury.
Rodos ultimately diagnosed plaintiff as having headaches, chronic pain, double vision,
memory and personality changes, and dystonia, a nerve injury that caused plaintiff’s posture to
tilt and his left foot to point inward. In addition, as a result of these conditions, Rodos found that
plaintiff suffers from depression. Rodos concluded that all of these conditions resulted from the
traumatic brain injury suffered in the car accident.
Rodos prescribed aquatherapy, neurobiofeedback, acupuncture, and various topical
creams to treat these conditions. Rodos utilized additional medication and therapy to treat
plaintiff’s depression. Rodos also recommended vocational therapy to plaintiff, but he has not
been willing to embrace that therapy. Although Rodos opined that plaintiff has not made great
progress in understanding the nature of his injuries, he affirmatively stated that he was not a
malingerer.
Dr. Robert Kohn, a neuropsychiatrist and board-certified neurologist, testified that he saw
plaintiff in January and April of 2005 as a consulting physician at Rodos’ request. Kohn testified
that he had experience in using SPECT scans and that he had authored several articles with Pavel
12
No. 1-06-2418
on the subject. Kohn explained the SPECT process and testified that he reviewed plaintiff’s
SPECT scan and, over objection, that it was consistent with a coup contre coup brain injury.
Kohn also testified that both plaintiff and his wife were present for the first examination
and he interviewed both of them regarding plaintiff’s health issues and history. Kohn testified
that plaintiff appeared physically uncomfortable with dystonic posturing. After physical
examination, review of plaintiff’s file, scans, and medical and family history during his two
office visits, Kohn concluded that plaintiff suffered from post-traumatic brain injury and
dystonia, fourth cranial nerve palsy, and possibly occipital neuralgia. Kohn opined that the likely
cause of plaintiff’s conditions was the impact to the back of the head during the accident.
The evidence deposition of Dr. Jennifer Pallone, a board-certified neurologist, who was
referred by Dr. Rodos to treat his pain and muscle spasms, was also presented. Pallone testified
that she first saw plaintiff on September 19, 2005, and diagnosed him as suffering from closed
head trauma, chronic headaches, and segmental dystonia. Pallone prescribed Botox injections to
treat his dystonia and headaches. Pallone testified that the Botox injections help reduce muscle
spasms and provide temporary relief of dystonia symptoms
F. Defendant’s Witness
As its sole witness, defendant presented the testimony of Dr. Robert Heilbronner, a
clinical neuropsychologist, who examined plaintiff on December 8, 2005. Heilbronner testified
that he reviewed the file of Dr. Jerry Sweet, a neuropsychologist at CRI who evaluated plaintiff
on May 21, 2003, and May 28, June 2, and June 4, 2004. Sweet concluded that he could not
properly estimate plaintiff’s abilities because plaintiff had given a variable or insufficient effort
13
No. 1-06-2418
during his evaluations. He also opined that plaintiff had somatization disorder - a preoccupation
with physical symptoms without a physical cause.
Heilbronner concurred with Sweet’s opinions and concluded that plaintiff suffered from
conversion disorder, a psychiatric condition, and not a brain injury or other medical condition.
Heilbronner bolstered this diagnosis with his conclusion that Rosanne was overly nurturant to the
point of co-dependency and the issue of litigation caused plaintiff’s complaints to persist.
Heilbronner did not claim that plaintiff did not suffer the various symptoms identified above, but
opined these symptoms were exacerbated and continued due to the psychosocial reinforcers.
Heilbronner admitted that plaintiff suffered the fourth cranial nerve injury and symptoms of left
leg pain, neck pain and headaches as a result of the accident. However, he testified that
comprehensive psychiatric treatment would significantly improve all aspects of plaintiff’s
condition.
G. Jury Instructions and Verdict
During the jury instruction conference, defendant sought to instruct the jury to not
consider or include any amounts for loss of earnings, profits, salaries or benefits in any award for
damages. The trial court refused defendant’s tendered instruction regarding any evidence of a
wage loss claim, stating that defendant could argue the issue in closing. The jury deliberated and
returned a verdict of $6 million for plaintiff. The jury itemized the award on the jury form as
$82,500 for the stipulated past medical expenses, $3,417,500 for disability experienced and
expected in the future, $500,000 for disfigurement, and $2 million for past and future pain and
suffering. The trial court denied defendant’s posttrial motion and this appeal followed.
14
No. 1-06-2418
II. ANALYSIS
A. Evidentiary Issues
1. Plaintiff’s Day-in-the-Life Video
Defendant first argues that the trial court erred in admitting plaintiff’s physical therapy
video as demonstrative evidence. Defendant asserts that the video was not timely disclosed, an
insufficient foundation was laid, and it improperly focused on plaintiff’s discomfort to elicit
sympathy from the jury. Defendant argues that the failure to bar the video, especially in light of
the trial court’s decision to bar defendant’s surveillance video, discussed below, resulted in
reversible error. We review a trial court’s admission of a day-in-the-life video for an abuse of
discretion, which occurs only when no reasonable person would agree with the decision of the
trial court. Velarde v. Illinois Central R.R. Co., 354 Ill. App. 3d 523, 529 (2004).
Plaintiff’s video, shot on March 17, 2006, is approximately five minutes long and
contains footage of plaintiff exiting his car, walking into the rehabilitation center, and undergoing
therapy on his leg and foot. Plaintiff produced the video to defense counsel on March 29, 2006,
the day before trial proceedings began. Defendant argues that because the video was not
disclosed until such a late date, in addition to the failure to disclose the physical therapist as a
trial witness, it was deprived of any opportunity to challenge the evidence. Defendant contends
that this evidence should have been barred pursuant to Rule 219(c). 210 Ill. 2d R. 219(c).
Defendant continues to argue that plaintiff’s video was not a day-in-the-life video as it
did not simply demonstrate plaintiff’s daily tasks and functions. Velarde, 354 Ill. App. 3d at 535.
Defendant points to several instances in the video where plaintiff grimaces and presents
15
No. 1-06-2418
expressions of pain while his foot is manipulated by the therapist. Accordingly, defendant
contends that the video was not demonstrative in any way but, rather was substantive evidence
improperly presented to bolster plaintiff’s case and claim for damages, prejudicing defendant’s
case. Spyrka v. County of Cook, 366 Ill. App. 3d 156, 169 (2006); French v. City of Springfield,
65 Ill. 2d 74, 82 (1976).
Defendant points out that this case is unlike Georgacopoulos v. University of Chicago
Hospitals & Clinics, 152 Ill. App. 3d 596 (1987). In Georgacopoulos, this court affirmed the
admission of a day-in-the-life video that included a portion where the plaintiff undergoes a
painful physical therapy session. The court noted that the therapy session was only a portion of
the 19-minute video and that the trial court described the tape as “ ‘tasteful.’ ” Georgacopoulos,
152 Ill. App. 3d at 599. The court further distinguished that case from a federal case that found a
day-in-the-life video more prejudicial than probative because it only showed a physical therapy
session of the plaintiff that had suffered severe burns. Georgacopoulos, 152 Ill. App. 3d at 599,
citing Thomas v. C.G. Tate Construction Co., 465 F. Supp. 566, 569 (D. S.C. 1979). Defendant
argues that, as in the Thomas case, plaintiff’s video was only of his physical therapy session and
the display of pain by plaintiff was therefore more prejudicial than probative.
Finally, defendant argues that no proper foundation was laid for the video as required in
Spyrka. Spyrka, 366 Ill. App. 3d at 167. The video was shown during Rosanne’s testimony. She
was not present during the filming and she did not explain what was contained in the video.
Defendant asserts that the fact that Rosanne had been to prior therapy sessions was not sufficient
to lay a proper foundation. Cryns, 203 Ill. 2d at 284-85.
16
No. 1-06-2418
Plaintiff responds that as demonstrative, not substantive, evidence, a day-in-the-life video
is not subject to the same disclosure requirements as substantive evidence and therefore there
was no discovery violation. Velarde, 354 Ill. App. 3d at 530-31. Furthermore, plaintiff asserts
that the physical therapist was listed in plaintiff’s discovery responses and the trial court granted
defendant the opportunity to depose her. The therapist appeared in response to plaintiff’s trial
subpoena, yet defendant did not question her. In addition, plaintiff notes that defendant had
every opportunity to question plaintiff himself on cross-examination but did not.
Plaintiff asserts that the trial court properly rejected defendant’s argument that the video
was more documentation of a medical examination than demonstrative day-in-the-life evidence.
Plaintiff notes that our courts have stated that day-in-the-life videos constitute demonstrative
evidence which helps jurors understand witness testimony. Cisarik v. Palos Community
Hospital, 144 Ill. 2d 339, 341 (1991); Velarde, 354 Ill. App. 3d at 530-31. Plaintiff contends that
defendant’s argument rests on the inaccurate claim that the video so focused on plaintiff’s pain
and effort that it was prejudicial as the video distinguished by Georgacoupoulos.
Plaintiff concludes that a proper foundation was laid by Rosanne, who testified that she
had attended two physical therapy sessions in the past. She testified that the video accurately
depicted how plaintiff exits his car, how he walks, and how his physical therapy is administered.
Plaintiff argues that this is all that is required by Spyrka and Cryns to properly lay a foundation
for demonstrative video evidence.
First, we agree that Velarde provides that, pursuant to Cisarik, day-in-the-life videos are
demonstrative and not substantive videos. In addition, the very purpose of these videos is to
17
No. 1-06-2418
illustrate evidence regarding a party’s life at the time of trial. Accordingly, the disclosure prior to
trial was not prejudicial. Velarde, 354 Ill. App. 3d at 531-32. As succinctly outlined in Cisarik,
a day-in-the-life video is akin to a photograph and admissible if a foundation is laid by someone
having personal knowledge of the filmed object and that the video is an accurate portrayal of
that. The video’s probative value also must not be substantially outweighed by the danger of
prejudice. Cisarik, 144 Ill. 2d at 342.
Rosanne certainly knew plaintiff and could testify to his ability to drive, get out of a car
and how he walked. She testified that she had attended plaintiff’s sessions with the physical
therapist twice and that the video was an accurate depiction of plaintiff and his therapy session.
As with a photograph, Rosanne had personal knowledge of the contents of the video and the trial
court properly accepted this as a foundation.
The trial court also found the danger of any prejudice did not outweigh its probative
value. The video in this case is unlike those in Spyrka and French. In Spyrka, the video that was
found to be prejudicial was a step-by-step animation of what happened to the plaintiff, not a
general demonstrative exhibit to understand the medical condition suffered. Furthermore, the
testifying doctor stated that he could not say the video accurately represented what happened to
the plaintiff. Spyrka, 366 Ill. App. 3d at 168-69. Likewise, in French, the video in question
purported to familiarize the jury with the scene of an accident that occurred at night. The video,
however was filmed in the day and in a fashion that mirrored the alleged chain of events in the
case. Accordingly, in both cases, the videos were prejudicial because they preconditioned the
minds of the jury to accept the plaintiffs’ theories in each case. Spyrka, 366 Ill. App. 3d at 169;
18
No. 1-06-2418
French, 65 Ill. 2d at 82.
As in Georgacoupoulos, the video in this case was “tastefully” produced. The video was
not produced to improperly precondition the jury on plaintiff’s theory. Having viewed the video,
it does not present a focus on plaintiff’s pain and discomfort to the exclusion of anything else.
While plaintiff does wince and/or grimace in different spots in the video, he also smiles and talks
with the therapist. There is no undue focus on his pain, it simply focuses on a typical therapy
session that the evidence at trial indicated would be required for the rest of plaintiff’s life.
2. Defendant’s Surveillance Video
Defendant argues that the trial court’s error in admitting plaintiff’s day-in-the-life video
was compounded by its failure to allow the surveillance video. Defendant highlights that the trial
court indicated during the hearing on defendant’s motion to bar the day-in-the-life video that if it
was going to be liberal about letting in video evidence for plaintiff it would have to be liberal for
both sides. Defendant claims that the surveillance video was relevant to rebut plaintiff’s video
and the trial court erred in barring its surveillance video. Again, under Velarde, we review the
admission of video evidence for an abuse of discretion. See also Warrender v. Millsop, 304 Ill.
App. 3d 260, 270 (1999).
Defendant argues that surveillance videos are relevant and admissible substantive
evidence concerning the extent of a plaintiff’s injuries in a personal injury suit. Shields v.
Burlington Northern & Santa Fe Ry. Co., 353 Ill. App. 3d 506, 509 (2004). Defendant contends
that the surveillance video tended to disprove plaintiff’s claims regarding the nature of his
injuries and his inability to maintain a level of employment. Defendant argues that the trial court
19
No. 1-06-2418
did not properly conduct a balancing test because it found that the probative value did not
outweigh the danger of prejudice. Defendant contends that the test requires exclusion only if the
probative value is substantially outweighed by the danger of prejudice. Spyrka, 366 Ill. App. 3d
at 167.
Defendant asserts that this court’s ruling in Carney v. Smith, 240 Ill. App. 3d 650 (1992),
is controlling. In Carney, the plaintiff was injured in a car accident and presented various
witnesses that testified to his persistent pain and disability, including dragging his foot. Carney,
240 Ill. App. 3d at 651-54. The defendant introduced two surveillance videos of the plaintiff
moving effortlessly, carrying numerous objects and performing various tasks. Carney, 240 Ill.
App. 3d at 657.
The trial court overruled the plaintiff’s objection to these videos. While the plaintiff
admitted that many parts of the videos were consistent with his presentation of evidence and
theory of the case and the videos did not show the plaintiff engaging in any vigorous activity, the
court found that they did rebut the inference that the plaintiff was in constant pain. Accordingly,
this court affirmed the admission of the videos because their probative value outweighed any
prejudicial effect. Carney, 240 Ill. App. 3d at 657-58.
In addition, defendant argues that the late disclosure of the surveillance video did not
warrant exclusion as a discovery sanction pursuant to Rule 219. 210 Ill. 2d R. 219(c). Defendant
highlights that the purpose of a discovery sanction is not to punish a party, but to ensure fair
proceedings. Smith v. P.A.C.E., 323 Ill. App. 3d 1067, 1075 (2001). Defendant argues that
plaintiff was not prejudiced by the late disclosure of the video because Kobliska was deposed and
20
No. 1-06-2418
available to testify at trial and the original tape was also available to alleviate concerns regarding
distortion. However, defendant maintains that it was prejudiced by allowing plaintiff’s day-in-
the-life video at such a late date, without a chance for it to provide rebuttal.
Plaintiff responds that the trial court properly denied showing defendant’s copied versions
of the video because the testimony of both Kobliska and Grant identified issues whether these
versions accurately portrayed what they purported to show. As for the original version, plaintiff
notes that, at trial, defense counsel argued that the surveillance videos were offered as
demonstrative evidence in conjunction with Kobliska’s testimony, while on appeal, defendant
argues that the video is admissible as substantive evidence. Plaintiff argues that defendant has
therefore waived this issue for its failure to stand on the theory presented at trial. Shannon v.
Boise Cascade Corp., 208 Ill. 2d 517, 527 (2004).
Plaintiff argues that, waiver notwithstanding, the trial court properly determined that the
surveillance video was not probative of the issue being contested. Therefore it concluded that its
probative value did not outweigh the possible prejudice. Plaintiff concludes that the cases cited
by defendant are factually inapposite and actually support his case. Plaintiff argues that in each
case, the surveillance video at issue captured the plaintiffs acting inconsistent with their claims at
trial. Furthermore, each case resulted in affirmance of the trial court’s discretionary decision.
Plaintiff contends that the trial court was correct in concluding that there was no
probative value to the video because it only demonstrated activity that plaintiff admitted.
Plaintiff admitted that he can drive and works overseeing construction sites when capable. The
surveillance video, plaintiff argues, by its very nature is prejudicial because it suggests that he
21
No. 1-06-2418
had been caught doing something he claimed he could not. Plaintiff contends that defendant
misrepresents the content of the video because views are obscured for moments that defendant
argues plaintiff walks without his cane and over uneven ground. Furthermore, the video could
improperly give the impression that plaintiff was capable of constant activity and, thus, was
correctly determined to be prejudicial. Carroll v. Preston Trucking Co., 349 Ill. App. 3d 562
(2004).
First, if the surveillance video is substantive evidence as defendant argues, it was properly
excluded. Neither Kobliska nor the video was disclosed by defendant during discovery.
Kobliska testified that he filmed the video in February 2006, informing defendant on February 9,
2006, that he had made a videotape. The fact that defendant did not receive the final copy of the
video until March 21, 2006, does not remove the requirement of disclosure or the duty to
seasonably supplement disclosure pursuant to Rule 214. 166 Ill. 2d R. 214. However, the video
was offered as demonstrative evidence and, despite defendant’s arguments, it was not barred by
the trial court as a discovery sanction. The trial court simply prefaced its holding by noting
defendant’s failures to promptly supplement disclosures and disclose Kobliska as a trial witness.
The trial court then weighed the probative value of the video against the possible
prejudice pursuant to Cryns. We agree that the trial court did not abuse its discretion in barring
the video as demonstrative evidence. The video did not counter any claims made by plaintiff.
Plaintiff maintained that he worked and drove when he was physically able. The video shows
just that. However, the danger of undue prejudice outweighed any probative value.
In Carroll, the defendant offered a surveillance video of the plaintiff, who had made a
22
No. 1-06-2418
worker’s compensation claim, walking without a cane, moving a ladder, operating a chainsaw,
and completing other labor-intensive work in his yard. Carroll, 349 Ill. App. 3d at 564-65. The
Carroll court opined that the video was probative to show the extent of the plaintiff’s
incapacitation and that the defendant could have used the plaintiff as a foundational witness.
Carroll, 349 Ill. App. 3d at 566. However, it held that the trial court did not abuse its discretion
because the unfair prejudice that resulted from the editing showing the plaintiff completing
physical tasks. This left the impression that he could maintain such activity for long periods of
time when they were completed over a short time period. Carroll, 349 Ill. App. 3d at 567.
While, under Carney and Carroll, it could be said that the trial court erred in saying that
the video was “not probative to any issue” because the video was probative to counter plaintiff’s
claims of constant pain, the harm of prejudice outweighed any probative value. Despite
defendant’s contention that Kobliska testified that the video was not edited to demonstrate only
the period plaintiff was working and that he filmed at every moment that he could, the video
leaves the impression that plaintiff was working for extended periods of time. Unlike Carney,
there is no direct rebuttal of plaintiff’s claims to boost its probative value.
The trial court highlighted that the video is obscured frequently and there were other
times where the plaintiff is just sitting in a car. The trial court opined that it was impossible to
determine if these obscured moments were downtime or active and, as in Carroll, determined
this could lead to the impression that plaintiff was actively working on the site. Under Carroll,
this conclusion was not an abuse of discretion.
3. Frye Hearing on the SPECT Scan and Related Testimony
23
No. 1-06-2418
Defendant argues that the trial court erred in concluding that the SPECT scan was
generally accepted scientific evidence under Frye. Defendant also contends that even if the trial
court’s ruling on the SPECT scan was correct, plaintiff’s witnesses improperly testified regarding
their use of the scan in treating plaintiff. The admissibility of evidence is a matter that typically
rests squarely within the discretion of the trial court. Agnew v. Shaw, 355 Ill. App. 3d 981, 988
(2005). However, in reviewing a trial court’s Frye analysis, we conduct de novo review and may
rely on materials outside the record, including legal and scientific articles and opinions from
courts of other jurisdictions. In re Commitment of Simons, 213 Ill. 2d 523, 530-32 (2004).
First, defendant argues that this court should adopt the test set forth by the United States
Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d
469, 113 S. Ct. 2786 (1993), because it constitutes a clarification of the standard for admission of
scientific evidence. Plaintiff asserts that defendant waived this issue for its failure to raise it until
the posttrial motion. However, defendant discussed Daubert in both its motion in limine seeking
to bar the SPECT scan evidence and in its posttrial brief.
While our supreme court has recently noted that Illinois courts have not addressed the
issue of whether Daubert should supplant Frye, it has continued to hint that this issue is ripe for
its consideration. See People v. McKown, 226 Ill. 2d 245, 247 (2007). However, Illinois case
law is replete with references that Illinois law is “unequivocal” in that the exclusive test for the
admission of expert testimony is the general acceptance test of Frye. Donaldson v. Central
Illinois Public Service Co., 199 Ill. 2d 63, 76 (2002). Although we are bound to precedent until
our supreme court adopts a new test, the issue bears quick review. See Mekertichian v.
24
No. 1-06-2418
Mercedes-Benz U.S.A., L.L.C., 347 Ill. App. 3d 828, 836 (2004).
Under the general acceptance test of Frye, scientific evidence is admissible if the
methodology underlying the opinion is “sufficiently established to have gained general
acceptance in the particular field in which it belongs.” Frye, 293 F. at 1014. The focus of this
test is on the underlying methodology of the opinion and not the ultimate conclusion. Agnew v.
Shaw, 355 Ill. App. 3d 981, 988 (2005). For federal cases however, Daubert held that the Frye
standard was superseded by the adoption of the Federal Rules of Evidence. Daubert, 509 U.S. at
587, 125 L. Ed. 2d at 479, 113 S. Ct. at 2793-94.
Like Frye, Daubert seeks to determine the soundness of an expert’s methodology. Unlike
the simple and open general acceptance requirement of Frye, Daubert provides “general
observations” to consider in determining whether a standard of evidentiary reliability has been
reached that would assist the trier of fact in understanding the fact at issue. Daubert, 509 U.S. at
591-93, 125 L. Ed. 2d at 481-83, 113 S. Ct. at 2795-97. Though “flexible” and not exhaustive,
Daubert listed the following considerations to be examined: whether the methodology has been
tested; whether the theory or technique has been submitted for peer review or publication; if there
is a known or knowable rate of error; if the theory or practice has been generally accepted in the
proper scientific community; and the existence of standards controlling the technique. Daubert,
509 U.S. at 593-95, 125 L. Ed. 2d at 482-84, 113 S. Ct. at 2796-98.
Accordingly, it is plain that Daubert provides additional guidance to courts in
determining the standard of evidentiary reliability of scientific evidence. As the Daubert court
noted, debate and scholarship on the merits of the Frye test are legion. Over the 85 years of
25
No. 1-06-2418
developing law since the decision in Frye, many established tests have been supplanted by the
courts and legislature. While we are in no position to make such a change, we agree it may be
due time for our supreme court’s worthy consideration, though the facts of this case are likely
insufficient for a proper challenge to the rule.
As noted above, the trial court in this case properly followed Donaldson and conducted a
Frye hearing. The trial court concluded that testimony could be heard on plaintiff’s SPECT scan,
but limited to the conclusion that it was consistent with a finding of traumatic brain injury and
not that it could prove causation. Defendant argues that the trial court erred in this conclusion
because it rested on Pavel’s testimony alone. In addition, it argues that the trial court erred in
allowing other experts to testify in violation of this ruling. For further support, defendant also
cites to scientific articles and case law from foreign jurisdictions.
The two 1996 scientific journal articles cited by defendant opined that the few controlled
experimental studies in using SPECT scans have left the use of the technology in forensic
situations speculative. See Society of Nuclear Medicine Brain Imaging Council, Ethical Clinical
Practice of Functional Brain Imaging, 37 J. of Nuclear Med. (July 1996); American Academy of
Neurology, Assessment of Brain SPECT, 46 Neurology 278-285 (1996). Defendant also relies
heavily on case law from the court of appeal of California. See People v. Yum, 111 Cal. App. 4th
635, 637-39, 3 Cal. Rptr. 3d 855, 855-57 (2003). The Yum court found that, based on the
testimony of the defendant’s expert and the prosecution’s expert witness, the defendant had not
shown that SPECT scans had achieved general scientific acceptance to diagnose brain trauma
and post-traumatic stress disorder. Yum, 111 Cal. App. 4th at 639, 3 Cal. Rptr. 3d at 857.
26
No. 1-06-2418
Defendant also argues that Pavel’s testimony during the Frye hearing was insufficient.
Defendant cites to Pavel’s admissions that there is no data on the known error rate for false
positive scans, that double-blind studies have not been conducted, that it is possible that drug use
might skew the results of a scan, and that there is no accepted methodology in using a SPECT
scan for diagnostic purposes. Defendant notes that Pavel did not conduct a blind assessment of
plaintiff’s scan as he was informed of plaintiff’s history. In addition, Pavel did not compare
plaintiff’s scan to a “normal” scan to identify abnormalities.
Finally, defendant argues that the trial court erred in allowing Rodos, Yarkony and Kohn
to testify regarding the scan. Yarkony testified that he reviewed the SPECT scan and Pavel’s
report. Yarkony testified that, as he was not a neuroradiologist, he would have to rely on the
report interpreting the scan, but opined that the scan confirmed the diagnosis of traumatic brain
injury. Likewise, Rodos testified he was not an expert in SPECT scans, but, as with Yarkony, he
was allowed to testify that Pavel’s interpretation showed the scan was diagnostic. Rodos further
opined that he told plaintiff to halt the medications he was taking before the scan because they
could skew the results. Kohn testified that plaintiff’s SPECT scan showed damage to both
hemispheres of the brain, specifically identifying a coup contre coup injury.
Defendant contends that, with respect to Kohn, plaintiff violated Rule 213(f)(2) in failing
to disclose that Kohn would testify to the SPECT scan. Official Reports Advance Sheet No. 26
(December 20, 2006), R. 213(f)(2), eff. January 1, 2007. Defendant admits that Kohn was
disclosed by plaintiff and defendant did not notice his deposition, even though it had every
opportunity to do so. Defendant maintains that the spirit of the amended rule was violated
27
No. 1-06-2418
because plaintiff did not specifically state Kohn would testify to the SPECT scan. See White v.
Garlock Sealing Technologies, LLC, 373 Ill. App. 3d 309, 323-24 (2007). Defendant concludes
that plaintiff’s tactical gamesmanship surprised and prejudiced defendant in direct violation of
the spirit of open disclosure because Kohn’s trial testimony went far beyond what it expected
from the disclosure.
We agree with plaintiff’s response that, while it is questionable that a Frye hearing was
necessary in this case because SPECT scans are not novel science, the trial court prudently
conducted a hearing. Perhaps 10 years ago there would be no question that a hearing was
required and defendant’s proffered scientific articles would have been cause to deny the
evidence. Certainly, if Daubert were the test, this case would have been considerably closer
based on a full review of the enunciated “considerations” of that test. However, as it stands,
Pavel testified during the Frye hearing that, at the date of trial, the SPECT technology had been
widely used for over 20 years and that virtually all university hospitals and many larger hospitals
conduct SPECT scans.
Pavel testified to his personal experience of almost 15 years with SPECT scans, almost
entirely with brain SPECT scans. Pavel has authored scientific articles on its use in this capacity
as well. As to the methodology, Pavel indicated SPECT scan analysis is similar to X-ray or other
imaging analysis. Students are taught what normal scans look like in medical school, and based
on this, continuing literature and gathered experience, Pavel makes determinations regarding the
scan result. Pavel admitted that he could not conclude what caused an injury, but reviewing a
scan, he could identify abnormalities consistent with certain injuries.
28
No. 1-06-2418
The trial court actively questioned Pavel during the hearing, specifically on his process
and the conclusions that he could make. As a result, the trial court ultimately limited his
testimony to whether the SPECT scan was consistent with a traumatic brain injury. Pavel’s
testimony about the extensive use of SPECT scans and detailed explanation about the process of
analyzing the scans was sufficient to support the introduction of the evidence. Pavel was not
discredited as a witness and supported his testimony to the trial court’s satisfaction. It was not an
error to find this testimony sufficient and that the 1996 articles defendant relied on at trial, and
here on appeal, were dated and did not diminish Pavel’s testimony. Furthermore, unlike in Yum,
where the testimony of two doctors did not support introduction of SPECT scans as a diagnostic
tool for brain trauma and traumatic stress disorder, here Pavel’s testimony was extensive and
sufficient. The trial court’s limitation on the testimony against statements that the scans were
diagnostic further distinguishes this case from Yum.
We also note plaintiff’s citation to Illinois courts that have allowed SPECT scan evidence
in various cases. See People v. Urdiales, 225 Ill. 2d 354 (2007); Matuszak v. Cerniak, 346 Ill.
App. 3d 766 (2004). In addition, other jurisdictions have accepted this evidence after applying
the Daubert test. See Rhilinger v. Jancsics, 8 Mass. L. Rep. 373 (1998). Similar to this court,
the Rhilinger court was presented with evidence regarding the use of SPECT brain scans for 15
years and determined that under Daubert, their use at trial would aid the trier of fact in
determining if abnormalities in brain function existed. We believe that, even if the trial court
followed Daubert, as defendant contends would have been proper, its motion in limine would
still have been properly denied. Pavel testified that he has submitted articles for publication,
29
No. 1-06-2418
SPECT scans are in wide use throughout the profession, and baseline images are presented in
medical schools teaching this technology. Furthermore, three additional doctors - Yarkony,
Rodos and Kohn - testified to their use of SPECT scans in this type of case.
With respect to the testimony of these doctors, plaintiff asserts that these doctors were not
subject to the Frye hearing. As treating doctors, plaintiff argues, each witness simply presented
medical opinion testimony regarding their diagnoses of plaintiff and were outside the reach of
Frye. Noakes v. National R.R. Passenger Corp., 363 Ill. App. 3d 851, 857-58 (2006).
Furthermore, plaintiff argues that each witness was disclosed during discovery and their treating
records were also disclosed. In particular, plaintiff points to the medical records of Kohn and
Rodos that indicated Kohn reviewed the SPECT scan and opined there was under perfusion in
the anterior and posterior areas. Plaintiff concludes that defendant was fully apprised of the fact
these doctors were witnesses and the records upon which they would testify and defendant’s
failure to depose Kohn cannot be cured by arguing disclosure was improper.
We agree that the trial court did not abuse its discretion in allowing the treating doctors to
discuss their use of the SPECT scan. As the Noakes court stated, where opinion testimony is
based on the physician’s personal knowledge and practical experience and not “studies and
tests,” it is not subject to a Frye test. Noakes, 363 Ill. App. 3d at 857-58. Each doctor’s
experience and qualifications were presented to the jury and each testified to how the SPECT
scan was used in their determination that plaintiff had suffered a traumatic brain injury. The fact
that some relied on Pavel’s report does not remove the fact that is how each doctor diagnosed and
treated plaintiff. Frye hearings establish whether the process or methodology is generally
30
No. 1-06-2418
acceptable, not an ultimate conclusion or opinion as these doctors provided. Defendant was
afforded the opportunity to review the doctors’ records in full and was free to fully depose each
of these doctors and present countering opinions to persuade the jury of its case.
B. Jury Instructions
Defendant contends that the trial court committed reversible error by refusing its
requested instruction advising the jury that lost wages, profits or income was not at issue in the
case. A particular jury instruction is proper if it is sufficiently clear, fairly and correctly states the
law, and is supported by some evidence in the record. Rios v. City of Chicago, 331 Ill. App. 3d
763, 776 (2002). In determining whether jury instructions were inadequate, we will remand for a
new trial only if the trial court clearly abused its discretion. Villa v. Crown Cork & Seal Co., 202
Ill. App. 3d 1082, 1087 (1990).
We find that the trial court did not abuse its discretion in refusing defendant’s requested
jury instruction. Defendant argues that the trial court granted its motion in limine barring the
wage loss claim and asserts that this “directed finding” required the limiting instruction.
Defendant does not cite to this motion in the record, and this court could not locate the motion.
The record indicates the trial court granted this motion without objection or further detail.
Plaintiff correctly notes that at the outset of trial he informed the judge that there was no
wage loss claim. Plaintiff reiterated during defendant’s motions in limine that there was no lost
wage claim and added it was withdrawn because with plaintiff’s new company, it was too
difficult to prove. Defendant then argued during closing that it was curious that plaintiff had not
made a lost wage claim. Plaintiff responded during rebuttal that no lost wage claim was filed
31
No. 1-06-2418
because it would be too speculative.
Both parties also argued during closing that the jury was not to consider any income or
lost future income during deliberations. The trial court tendered instructions detailing what
elements of damage it could consider. The trial court found no reason to confuse the jury with an
instruction on an issue not before it Instead, it stated that defendant could argue the point to the
jury.
Defendant’s presentation and reliance on Wille v. Navistar International Transportation
Corp., 222 Ill. App. 3d 833 (1991), are misguided. In Wille, the trial court denied the plaintiff’s
motion in limine to bar evidence or argument that he assumed the risk of injury. At the close of
evidence, the trial court entered a directed verdict on that issue, but refused to instruct the jury on
the directed verdict, noting that plaintiff’s counsel could cover that issue in closing. Defense
counsel proceeded to extensively argue in closing, over objection, that plaintiff’s actions were the
proximate cause of the injury. Wille, 222 Ill. App. 3d at 837. This court reversed for the trial
court’s failure to fully instruct the jury as to the applicable law because it did not instruct the jury
of the directed finding. This error was especially prejudicial because the defendant’s closing
argument on this issue covered 11 pages of trial transcripts. Wille, 222 Ill. App. 3d at 839-40.
In this case, there was no need for a directed verdict or directed finding as plaintiff
withdrew any lost wage claim. Although the motion is not of record, defendant apparently
moved to bar any discussion or evidence of lost earnings, past or future. No evidence on lost
wages was presented because plaintiff had withdrawn the claim. Wille is also distinguishable
because, here, defendant raised the issue in closing and plaintiff limited his rebuttal comments to
32
No. 1-06-2418
a brief paragraph responding that he did not advance a lost wage claim as it would be speculative
and overreaching. This in no way is comparable to an extensive argument on causation. The
jury was informed by both parties there was no lost wage claim and the jury instructions clearly
provided the elements of damage the jury could consider.
C. Improper Damages Award
Finally, defendant contends that the jury award of $6 million was excessive and should be
reversed with remand for further proceedings on that issue or a substantial remittitur must be
entered. The question of damages is specifically reserved for the trier of fact, and we will not
substitute our judgment lightly. We may reverse or modify a damages award as excessive only if
it is unfair and unreasonable, if it results from passion or prejudice, or it is so excessively large
that it shocks the conscience. Mikolajczyk v. Ford Motor Co., 374 Ill. App. 3d 646, 671 (2007),
appeal allowed 225 Ill. 2d 637 (2007).
Defendant argues that the jury’s award is radically disproportionate to the economic loss
such that the award bears no relationship to plaintiff’s losses. Defendant notes that the
noneconomic loss determined by the jury was over 70 times greater than the economic loss of the
stipulated medical bills. Defendant argues that this fact alone makes the verdict shocking and
excessive as a matter of law. In support of remittitur, defendant cites a case from the Mississippi
Supreme Court where a substantial remittitur was affirmed due to hugely disproportionate
noneconomic damages. Defendant also argues that this court should reverse where the award
bears no relationship to the loss suffered. Gill v. Foster, 157 Ill. 2d 304, 315 (1993).
Defendant notes that damages must be proved to be recovered. Chrysler v. Darnall, 238
33
No. 1-06-2418
Ill. App. 3d 673, 680 (1992). Furthermore, defendant argues that the jury may make a just
estimate of damages and it may not base its award purely on guesswork. Levin v. Welsh Brothers
Motor Service, Inc., 164 Ill. App. 3d 640, 655 (1987). Defendant argues that plaintiff’s counsel
“pulled figures from the air” for the verdict request to the jury of $8 million for disability,
$500,000 for disfigurement, $5 million for future pain and suffering, and $82,500 for medical
costs.
Defendant argues that plaintiff merely suffered a mild traumatic brain injury resulting in a
cranial nerve injury, headaches, back and shoulder pain, a movement disorder, and depression.
Defendant points out that plaintiff still works as a construction supervisor, still walks, talks, eats,
sees, hears, tastes, smells, carries trays of coffee, drives, shops, pumps gas, operates a cell phone,
and attends rehabilitation. Defendant further notes that plaintiff was not rendered a paraplegic or
quadriplegic, incontinent or bed-ridden. Accordingly, defendant concludes that the noneconomic
damages award lacks support in the record.
Plaintiff responds by highlighting the great discretion granted to the jury in setting the
amount of a verdict. Velarde, 354 Ill. App. 3d at 539-40. Plaintiff notes that Velarde also cites
several factors that may be used in reviewing compensatory damages, including the permanency
of the condition, the possibility of future deterioration, the extent of medical expenses, and the
restrictions imposed due to the injuries suffered. Velarde, 354 Ill. App. 3d at 540. Plaintiff also
argues that Illinois does not require any particular ratio of economic loss to non-economic loss
and that the evidence presented at trial supported the jury’s award.
First, as we affirmed the trial court’s evidentiary findings above, we need not consider
34
No. 1-06-2418
defendant’s argument that the alleged errors also demonstrate the damages award resulted from
passion, prejudice and improper considerations. In addition, we need not consider the foreign
jurisdiction case cited by plaintiff when Illinois case law sufficiently covers this subject. Next,
we agree with plaintiff that Gill supports plaintiff’s argument. Gill reiterates the principle that
the jury is vested with great discretion in fashioning an award in rejecting a claim damages were
disproportionate to the loss suffered. In addition, we note that defendant has argued that more
than mere guesswork is required to fix damages based on Levin; however, that case specifically
discusses the computation of lost earning capacity. Levin, 164 Ill. App. 3d at 655.
While a damage award for noneconomic damages such as those suffered by plaintiff is
subject to even less precision than economic damages or lost wages, it still must be a product of
the evidence and not passion such that it is shockingly excessive. As defendant indicated, a
“plethora of medical evidence,” was presented at trial. That evidence indicated plaintiff’s life
will be negatively affected for the remainder of his life, with a life expectancy of more than 40
years.
While it is true that plaintiff has retained a certain amount of ability to function since the
accident as defendant enumerates, the evidence also showed that each of those activities listed by
defendant is limited by plaintiff’s lost mobility, increased pain, and depression. Furthermore,
testimony was given indicating that, as plaintiff aged and his body deteriorated, his symptoms
would likely worsen. While $6 million is a large sum, it is by no means so large as to shock the
conscience as compensation for the lifetime of consequences that plaintiff and his family face
due to the physical and mental limitations posed by his injuries.
35
No. 1-06-2418
III. CONCLUSION
Accordingly, for the aforementioned reasons, the decision of the trial court is affirmed.
Affirmed.
NEVILLE, P.J., and CAMPBELL, J., concur.
36
No. 1-06-2418
Please Use REPORTER OF DECISIONS – ILLINOIS APPELLATE COURT
Following (Front Sheet to be Attached to Each Case)
Form:
Complete VINCENT DONNELLAN,
TITLE Plaintiff-Appellee,
of Case
v.
FIRST STUDENT, INC.,
Defendant-Appellant
(Earl F. McClendon, Defendant.)
Docket No.
COURT
Opinion
Filed Nos. 1-06-2418
Appellate Court of Illinois
First District, FOURTH Division
JUSTICES
June 19, 2008
(Give month, day and year)
JUSTICE MURPHY delivered the opinion of the court:
APPEAL from
the Circuit
Ct. of Cook Neville, P.J. and Campbell, J., concur [s]
County,
Chancery
Div. dissent[s]
Lower Court and T rial Judge(s) in form indicated in the margin:
For
APPELLANTS,
John Doe, The Honorable Arthur J. Janura , Judge Presiding.
of Chicago.
For
APPELLEES,
Smith and
Smith of
Chicago, Indicate if attorney represents APPELLANTS or APPELLEE S and include
Joseph attorneys of counsel. Indicate the word NONE if not represented.
Brown, (of
Counsel)
Attorney for Plaintiff-Appellant First Student, Inc.: Edward M. Kay, Paula M. Catstensen
Also add Clausen, Miller P.C.
attorneys
for third- 10 S. La Salle Street, Chicago, IL 60603
party 312.855.1010
appellants
or Attorneys for Plaintiff-Appellee Vincent Donnellan: William J. Harte, Ltd.
appellees. 111 W. Washington Street, Suite 1100
Chicago, IL 60602
312.726.5015
-and-
The Healy Law Firm
111 W. Washington Street, Suite 1425
37
No. 1-06-2418
Chicago, IL 60602
Of counsel: Martin J. Healy, Jr., Kevin T. Vuegeler, William J. Harte, Joan M. Mannix,
38