Vanoosting v. Sellars

ILLINOIS OFFICIAL REPORTS
Appellate Court
Vanoosting v. Sellars, 2012 IL App (5th) 110365
Appellate Court KATHRYN L. VANOOSTING, Plaintiff-Appellant, v. CARL
Caption SELLARS, Defendant-Appellee.
District & No. Fifth District
Docket No. 5-11-0365
Filed June 14, 2012
Held Plaintiff’s testimony that she did not seek further medical treatment for
(Note: This syllabus the injuries she suffered in a vehicular collision for three years prior to
constitutes no part of trial because she did not have insurance or the ability to pay for such
the opinion of the court treatment was relevant to her claim for future medical expenses and to
but has been prepared rebut the defense theory that she no longer had pain and suffering, and the
by the Reporter of trial court erred in excluding that testimony, especially when it could
Decisions for the have been restricted to its proper scope and purpose; therefore, the cause
convenience of the was remanded for a new trial.
reader.)
Decision Under Appeal from the Circuit Court of Union County, No. 08-L-1; the Hon.
Review Mark M. Boie, Judge, presiding.
Judgment Reversed; cause remanded with directions.
Counsel on Stephen W. Stone, of Howerton, Dorris & Stone, of Marion, for
Appeal appellant.
James B. Bleyer, of Bleyer & Bleyer, of Marion, for appellee.
Panel JUSTICE SPOMER delivered the judgment of the court, with opinion.
Justices Welch and Chapman concurred in the judgment and opinion.
OPINION
¶1 The plaintiff, Kathryn L. Vanoosting, appeals from the August 22, 2011, order of the
circuit court of Union County which denied her motion for a new trial after a jury verdict in
her favor on her complaint for money damages against the defendant, Carl Sellars. On
appeal, the plaintiff argues she is entitled to a new trial because: (1) the circuit court
prohibited her from testifying that she did not seek further treatment for her injuries in the
three years prior to trial because she did not have health insurance, and (2) a zero award for
loss of a normal life cannot be sustained by the evidence at trial, especially in light of
argument by defense counsel that seeking compensation for loss of a normal life and pain
and suffering is “double dipping.” For the following reasons, we reverse and remand with
directions that the plaintiff be afforded a new trial.
¶2 FACTS
¶3 The plaintiff filed a negligence complaint against the defendant on January 3, 2008,
alleging that she was injured when the defendant rear-ended her vehicle on March 6, 2006.
In the complaint the plaintiff sought damages for, inter alia, past and future pain and
suffering, disability, loss of a normal life, and loss of earning capacity. On August 23, 2010,
the defendant filed an admission of negligence, and the cause proceeded to trial on the issue
of damages only. The circuit court declared a mistrial based on statements made by a juror
in chambers,1 and a second trial commenced on January 24, 2011, wherein a jury was
impaneled and sworn and voir dire conducted. On January 25, 2011, the jury heard opening
statements and the plaintiff presented her case in chief. During her cross-examination,
defense counsel elicited from her that she had not been to the doctor for three years prior to
1
A docket entry entered that date states: “Juror Hight approaches bailiff and states he wishes
to speak w/ct and counsel. Ct and counsel interviews Juror Hight in chambers. Counsel make[s]
arguments. Ct excuses Juror Hight and declares a mistrial.” No other information is included in the
record as to the court’s reasons for declaring a mistrial.
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trial. On redirect, the plaintiff’s counsel asked her if she had health insurance, either at the
time of the wreck or presently, and she answered “no.” After the plaintiff rested her case in
chief, the circuit court declared another mistrial. The basis for the mistrial is set forth in the
following docket entry:
“Ð Atty’s ‘health insurance’ question posed to the Ð in chambers w/ counsel. Ct hears
arguments of counsel. Ä Atty requests that mistrial be ordered while Ð Atty argues that
jury should be instructed. Ct makes its findings regarding the issue and declares a
mistrial.”
¶4 Another trial was scheduled for April 25, 2011. On February 4, 2011, the plaintiff filed
a supplemental motion in limine seeking to introduce evidence that she is not covered by
health insurance in response to the defendant’s claims that she has sought little or no medical
treatment in the last three years. In the alternative, the supplemental motion in limine
requested that the defendant be barred from any claim or argument regarding the lack of
medical treatment for three years. By a notation made on the supplemental motion in limine
following a pretrial conference on April 13, 2011, it appears that the circuit court denied the
plaintiff’s request to introduce evidence that she did not have health insurance but granted
the plaintiff’s request that the defendant be barred from claiming or arguing the plaintiff has
sought little or no medical treatment in three years.
¶5 Before the third trial commenced on April 26, 2011, the circuit court held another in-
chambers conference with counsel for both parties. The plaintiff’s counsel asked for a
clarification on the circuit court’s ruling on the supplemental motion in limine. The following
colloquy occurred:
“[Plaintiff’s counsel]: I’m not clear on the ruling–or on your ruling of my motion that
I filed subsequent to the last trial asking leave of the Court to have [plaintiff] testify that
she does not have health insurance as the explanation for why she hasn’t been back to the
doctor in the last three years.
THE COURT: And I think we discussed this the other day, and just didn’t make the
record. I’m going to stay away from the health insurance issue because–and I think
[defense counsel] said–I mean, basically, the only question he’s going to ask is, when
was the last time you went to the doctor, and not elaborate on why, when, any of those
issues. Correct?
[Defense counsel]: That’s right. I mean, I want to be very circumspect.
***
THE COURT: Well, and you know, obviously, I want to tread lightly on that. We’ve
been down this road before. If it becomes–and I don’t think [defense counsel] is going
to, but if it becomes an issue, I’ll revisit it and ask, and we’ll discuss it.”
¶6 The plaintiff’s counsel then reiterated his concern that even the mention of the fact that
the plaintiff had not been to the doctor in three years may cause the jury to infer that she is
no longer hurt or in pain and that the plaintiff should be able to explain her reasons for not
seeking further treatment. The plaintiff’s counsel informed the court that he planned to make
an offer of proof on the issue at the appropriate time during trial.
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¶7 Subsequently, the defendant objected to the plaintiff’s tendered instruction No. 17, which
listed the potential elements of damage the jury could consider. See Illinois Pattern Jury
Instructions, Civil, No. 30.01 (2011). The defendant objected to future medical expenses,
future pain and suffering, and future loss of a normal life as potential elements of damage,
arguing that there was no evidence upon which the jury could base a future award. In
response, the plaintiff argued that at least one treating provider made recommendations for
future treatment. During the instruction conference, there was another discussion about how
to elicit the plaintiff’s intent to seek future treatment, the defendant’s right to point out the
three-year gap in treatment, and the plaintiff’s need to explain her reason for not seeking the
recommended treatment before. The circuit court gave plaintiff’s instruction No. 17 to the
jury over the defendant’s objection, but admonished the plaintiff’s counsel that while he
could elicit from the plaintiff that she plans to seek future medical treatment, she could not
qualify her intent based on whether she would receive a future award and could not explain
her failure to seek such treatment based on a lack of medical insurance.
¶8 During opening statements, defense counsel made the following remark regarding the
plaintiff’s lapse in treatment:
“But the last doctor whom she saw was more than three years ago, and that–I believe the
evidence is going to show that the last doctor whom she saw was Dr. Alam, and that was
on April 2, 2008. He told her to come back if she had a problem. No more. So
this–today’s April, so there’s been no medical treatment for three years.”
¶9 The plaintiff’s treating providers testified via video evidence deposition or the reading
of evidence deposition testimony to the jury. During his cross-examination of each of the
providers, defense counsel asked whether the plaintiff had been back to treat with that
provider in the three years prior to trial, despite their availability to provide further treatment
to the plaintiff. The plaintiff testified that after the accident she developed pain in her neck,
shoulder, arms, and back. She sought treatment at the Carbondale Clinic and was referred to
physical therapy at Union County Hospital. Six weeks after the accident, the plaintiff
requested a clean bill of health from her physician at the Carbondale Clinic because it was
required in order to begin work as a substitute carrier for the United States Postal Service.
Although she had obtained the clean bill of health, she had already begun treating with a
specialized dentist for jaw issues that surfaced after the accident, and he also referred her for
more physical therapy due to muscle spasms in her upper back and neck that he testified were
interfering with his treatment of her jaw problems. On cross-examination, the plaintiff’s
specialized dentist testified that he could not rule out a preexisting condition as a predicate
for the jaw problems the plaintiff was experiencing.
¶ 10 The plaintiff testified about the pain she experienced which interfered with her daily
activities. She tried to endure the pain for a period of a year but then sought further treatment
and physical therapy in 2008. At this point in the plaintiff’s testimony, the plaintiff’s counsel
posed the following question to the plaintiff in the presence of the jury:
“And from the two year anniversary of this wreck, forward–and I don’t want to know
why, because we can’t tell why–have you had obstacles that prevent you from seeking
the medical care you desire?”
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¶ 11 The plaintiff answered affirmatively, at which point defense counsel objected and the
circuit court instructed the jury to disregard the question. Outside of the presence of the jury,
the plaintiff made an offer of proof. In the offer of proof, the plaintiff testified that she did
not have health insurance at the time of the accident. She had insurance on her car that would
pay for medical treatment for two years following the accident. After the two years expired,
she did not seek further treatment because she did not have health insurance and did not have
the ability to pay for it. She earns $200 a week and gets some help from her son. She takes
care of her parents with their social security benefits. She testified that if the jury awards her
damages for future medical expenses, she plans to seek further physical and/or water therapy
to treat her neck and back pain. This concluded the plaintiff’s offer of proof.
¶ 12 On cross-examination, defense counsel elicited the plaintiff’s admission that she had not
received any medical treatment since June of 2008. The plaintiff rested and the defense did
not present a case in chief. During closing arguments, the plaintiff’s counsel requested that
the jury award the plaintiff $18,000 for past medical bills, $12,000 for future medical bills,
$30,000 for pain and suffering, past and future, and $30,000 for loss of a normal life, past
and future, for a total of $90,000. During his closing, defense counsel made the following
statement regarding the request for future medical expenses:
“Now, one thing that I am very, very sensitive about, [plaintiff’s counsel] said 30, 30, 30.
Thirty about the medical, for no medical for three years. There is a medical–the last
medical, you heard that. He wants $12,000 for future medical, $18,000 for past medical.”
¶ 13 Defense counsel then made the following statement regarding the plaintiff’s request for
damages for pain and suffering and loss of a normal life:
“I asked her–[plaintiff’s counsel] says 30 for pain and suffering and 30 for loss of normal
life. Well, what did I ask her: Whatever you can’t do, is it because of your pain. She said
yes. So, am I wrong? Am I misunderstanding it? If you get $30,000 for pain and
suffering, why should you get $30,000 for loss of a normal life? You talk about double-
dipping. I mean, that is double-dipping. No question about it. No question about it.”
¶ 14 The plaintiff’s counsel objected, arguing that the jury instruction contains elements of
damage for both pain and suffering and loss of a normal life and that defense counsel’s
suggestion that this amounts to “double-dipping” is inappropriate. The circuit court did not
make a particular ruling on the plaintiff’s objection and did not give an instruction to the
jury, but did address defense counsel in the presence of the jury, stating:
“Basically, I believe you can make your argument as what you believe would be fair and
reasonable as to loss of normal life and pain and suffering. I think to call it double-
dipping may be confusing to the jury. I think you can make your argument. *** I think
the jury needs to understand that there are three things that–***. And we’ll get to that
when I read the instructions.”
¶ 15 Defense counsel then stated:
“No question, double-dipping, that is kind of a slang term. Maybe I shouldn’t use it. You
heard the evidence. The inability to do certain things because of the pain. There is [sic]
two elements to that. It is up to you to determine if they are duplication or what they are.”
¶ 16 After closing arguments, the jury was instructed, inter alia, as follows:
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“Whether a party is insured or not insured has no bearing on any issue that you must
decide. You must refrain from any inference, speculation, or discussion about insurance.
If you find for the plaintiff, you shall not speculate about or consider any possible
sources of benefits the plaintiff may have received or might receive. After you have
returned your verdict, the court will make whatever adjustments are necessary in this
regard.” Illinois Pattern Jury Instructions, Civil, No. 3.03 (2011).
¶ 17 It appears from the record that this instruction was marked as the plaintiff’s tendered
instruction No. 10 and was given over objection. However, the record does not reflect the
nature of the objection.
¶ 18 As per the circuit court’s ruling in the instruction conference, the circuit court also
instructed the jury to consider the following elements of damage: (1) past and future medical
expenses, (2) past and future pain and suffering, and (3) past and future loss of a normal life.
The circuit court also gave the following instruction with regard to the definition of loss of
a normal life:
“When I use the expression ‘loss of a normal life’, I mean the temporary or
permanent diminished ability to enjoy life. This includes a person’s inability to pursue
the pleasurable aspects of life.” Illinois Pattern Jury Instructions, Civil, No. 30.04.02
(2011).
¶ 19 The jury returned a verdict in the amount of $30,286.46, itemized as follows: (1)
$18,286.46 for medical expenses, past and future, (2) $12,000 for pain and suffering, past
and future, and (3) $0 for loss of a normal life. We note that the award for medical expenses
matches the plaintiff’s exhibit itemizing her past medical expenses, suggesting that no award
was made for future medical expenses. On May 9, 2011, the circuit court entered a judgment
on the jury’s verdict.
¶ 20 On May 25, 2011, the plaintiff filed a posttrial motion requesting a new trial. The
plaintiff argued that she was deprived of a fair trial when the circuit court refused her
testimony that she did not seek medical treatment in the years before trial due to a lack of
medical insurance. In addition, the plaintiff argued that the jury’s award of $0 for loss of a
normal life was against the manifest weight of the evidence and a product of improper
argument by defense counsel. After full briefing and argument of counsel, the circuit court
entered an order denying the plaintiff’s posttrial motion on August 22, 2011. On August 30,
2011, the plaintiff filed a timely notice of appeal.
¶ 21 ANALYSIS
¶ 22 We begin our analysis with a statement of our standard of review. The decision of the
circuit court to deny a new trial is within its discretion and will not be reversed absent an
abuse of that discretion. Stricklin v. Chapman, 197 Ill. App. 3d 385, 387-88 (1990). With the
standard of review in mind, we turn first to the plaintiff’s argument that she is entitled to a
new trial based on the circuit court’s exclusion of her testimony that she did not seek further
treatment for her injuries in the three years prior to trial because the medical payments
coverage on her automobile insurance had expired and she did not have health insurance or
the ability to pay for further treatment. Although evidence of the existence of health
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insurance is generally inadmissible to prove liability, such evidence may be admitted to
prove relevant issues raised in a case. Tomaszewski v. Godbole, 174 Ill. App. 3d 629, 635
(1988). In other words, the general rule that the existence of health insurance is inadmissible
is based on a traditional relevance analysis.
¶ 23 According to Illinois Rule of Evidence 401, “ ‘[r]elevant evidence’ means evidence
having any tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” Ill. R. Evid. 401 (eff. Jan. 1, 2011). Here, the plaintiff’s testimony that she did not
seek further treatment due to her lack of insurance is of consequence to her claim for future
medical expenses and to the rebuttal of the defense theory that she no longer has pain and
suffering or a need for treatment due to her lack of treatment in the last three years.
Accordingly, we find that the plaintiff’s proffered testimony is relevant under Illinois rules.
¶ 24 Having determined the relevance of the testimony, we are mindful of Illinois Rule of
Evidence 403, which provides, “Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Ill. R. Evid. 403 (eff. Jan. 1, 2011). We do not find
such to be the case. Although we are mindful of the potential impact that the plaintiff’s
financial position may have on the sympathies of the jury, we find that as provided for in
Illinois Rule of Evidence 105 (Ill. R. Evid. 105 (eff. Jan. 1, 2011)), the court, upon request,
could have restricted the evidence to its proper purpose and scope and instructed the jury
accordingly, in this case by appropriately tailoring pattern instruction 3.03 to the unique facts
of this case. See Duffin v. Seibring, 154 Ill. App. 3d 821, 831 (1987) (holding that a trial
court faced with a unique factual situation or point of law not addressed by the pattern
instructions should provide the jury with modified versions of the pattern instructions which
accurately state the law). For all these reasons, we find that the plaintiff’s testimony was
admissible and that the trial court erred in excluding it.
¶ 25 Although we have found that the circuit court erred in excluding the plaintiff’s testimony,
we recognize that an error in the exclusion or admission of evidence does not require reversal
for a new trial unless one party has been prejudiced or the result of the trial has been
materially affected. Stricklin, 197 Ill. App. 3d at 388. However, in a case close enough on the
facts that a jury could easily decide either way, any substantial error which might have tipped
the scales calls for a reversal for a new trial. Id. Here, as in Stricklin, 197 Ill. App. 3d at 388,
the contested testimony relates directly to the central controversy of the case, namely, the
extent of the plaintiff’s damages and whether the plaintiff is entitled to damages for future
pain and suffering, medical expenses, and loss of normal life. This is especially true in light
of defense counsel’s strategy of repeatedly highlighting the fact that the plaintiff had no
treatment for her injuries in the three years prior to trial in his cross-examination of the
witnesses and in his closing argument. Because of the closeness of the evidence, we cannot
say that the circuit court’s error in excluding the testimony had no effect on the outcome of
the case, and we must remand this cause for a retrial in the interest of justice. See Stricklin,
197 Ill. App. 3d at 388.
¶ 26 Having found that the circuit court’s failure to admit the plaintiff’s testimony regarding
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her lack of health insurance to explain her lack of treatment over the three years prior to trial
entitles the plaintiff to a new trial, we need not determine whether the jury’s verdict of zero
for the loss of a normal life, in light of the closing argument by defense counsel that seeking
compensation for loss of a normal life and pain and suffering is “double dipping,” was
reversible error. We find it sufficient to point out that although it is not necessarily reversible
error for a jury to award damages for pain and suffering and no damages for loss of a normal
life, especially when the evidence consists of the subjective testimony of the plaintiff (see
Stift v. Lizzadro, 362 Ill. App. 3d 1019, 1029 (2005)), Illinois law does provide that these are
separate elements of damage, as per the jury instructions (see Illinois Pattern Jury
Instructions, Civil, No. 30.04.02 (2011)), and defense counsel’s statement that to request an
award on both elements amounts to “double dipping” is an improper legal argument, and an
objection to such a comment should be sustained. See Lounsbury v. Yorro, 124 Ill. App. 3d
745, 749 (1984) (an objection to argument by counsel that is inconsistent with the jury
instructions is properly sustained).
¶ 27 CONCLUSION
¶ 28 For the foregoing reasons, the judgment of the circuit court of Union County is reversed,
and the cause is remanded for a new trial.
¶ 29 Reversed; cause remanded with directions.
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