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Muscarello v. Peterson

FEBRUARY 8, 1960.




Appeal from the Circuit Court of Lake county; the Hon. BERNARD M. DECKER, Judge, presiding. Affirmed.


This is an action for personal injuries sustained on June 5, 1955, by Catherine M. Muscarello, a six-year old child, when her father's automobile in which she was riding was struck at an intersection in Lake County, Illinois, by the automobile operated by the defendant, Elaine Peterson. The case was tried before a jury which returned a verdict for the plaintiff and against the defendant in the sum of $2,000. Judgment was entered on the verdict, plaintiff filed her post-trial motion for a new trial, which was denied, and this appeal by plaintiff followed.

In her amended post-trial motion seeking a new trial and upon this appeal the plaintiff urges that reversible error was committed in the trial of this cause in at least three separate respects: (1) The damages awarded are inadequate and the verdict in that regard is, therefore, contrary to the manifest weight of the evidence; (2) the trial court committed prejudicial and reversible error in restricting plaintiff's cross-examination of Dr. H.R. Oberhill, defendant's medical witness, necessitating plaintiff calling the doctor as her own witness; (3) the furnishing by defendant to plaintiff's parents prior to trial of a copy of Dr. Oberhill's medical report, with a vital paragraph omitted therefrom, constituted a fraud upon the minor plaintiff and thereby prevented her from properly presenting her case and from receiving a fair trial.

Throughout this case it has been conceded by counsel for defendant-appellee, both before the trial judge and before this court, that there is no question on the issue of defendant's liability to plaintiff. The question seriously contested is concerned with the causal connection between the injury alleged to have been received by plaintiff on June 5, 1955, and her alleged condition of ill-being at the time of trial. It was the contention of plaintiff that she was a victim of Jacksonian epilepsy which was directly and proximately caused by the trauma sustained in the intersection collision in question. Defendant sought to prove that there was in fact no causal connection between the plaintiff's injury received in the collision and the seizures allegedly suffered commencing two months later and also that the nature and extent of plaintiff's condition of ill-being, including the matter of permanency, was highly questionable. The case obviously hinged largely on the testimony of the medical witnesses.

The evidence was that following the collision the minor plaintiff complained of pains in her head and stomach, suffered a marked bruise on her forehead, and for a few days exhibited evidence of extreme nervousness. The extent of plaintiff's unconsciousness, if any, immediately after the cars collided is a matter of dispute, although plaintiff acknowledges that it was only "momentary" unconsciousness. The first seizure or convulsion which evidenced an epileptic condition appeared in mid-August following the occurrence. There was testimony that other seizures followed in rapid succession. The plaintiff was hospitalized in September, 1955, under the care of a Dr. Adelman, the family physician, who after observations and tests diagnosed the condition as "convulsions of post traumatic origin." At Dr. Adelman's suggestion, the plaintiff was referred to Dr. Frederick A. Gibbs, a professor of neurology and neuro-physiology, who practiced exclusively in the field of epilepsy and electroencephalography, for an electroencephalogram on September 12, 1955, which electroencephalogram was normal in all areas. On February 14, 1956, at the request of the insurance carrier for defendant, Dr. H.R. Oberhill, a physician and neurosurgeon, examined the plaintiff and thereafter Dr. Oberhill referred plaintiff to Dr. Gibbs for a second series of electroencephalograms. This second series made on February 24, 1956, showed spike seizure activity in the right mid-temporal area indicating abnormality in that region. On April 1, 1957, Dr. Gibbs re-examined plaintiff and made additional electroencephalograms at the request of Dr. Adelman, and these continued to show the same spike seizure discharges plus an additional abnormality elsewhere. Another series of electroencephalograms was taken in November, 1957, by Dr. Gibbs which revealed essentially the same findings previously noted. Following his examination of plaintiff on February 14, 1956, at the request of defendant's insurer, Dr. Oberhill mailed a report of his examination to the insurance carrier, which read:

"February 18, 1956

"Universal Indemnity Insurance Co. "Gentlemen:

"On February 14, 1956, I saw and examined seven-year-old Catherine Muscarello, a second grade student, whom you so kindly referred to us. We are informed that Catherine is the product of her mother's 5th pregnancy, there being two miscarriages, then two siblings now 23 and 13 years of age respectively, and finally Catherine herself. The gestation was probably not the full nine months and the mother feels that she probably delivered two weeks or more before term. Catherine weighed five pounds and six ounces at birth, pursued a normal neonstal course, and was taken home at the age of 12 days when her weight had reached a satisfactory level. According to the mother Catherine walked at approximately one year of age, talked `quite young', and generally has been a healthy girl.

"On or about June 5, 1955, Catherine sat in the left rear seat of the family automobile when the car was involved in an accident with another vehicle causing her to be thrown to the floor and probably rendered unconscious for a matter of a few minutes. The parents themselves were dazed and when they recovered sufficiently looked to the back seat and found Catherine lying unresponsive on the floor. She soon recovered, screamed, and seemed to be quite hysterical. Catherine then complained of a discomfort in her `side' and is said to have had a swelling on the left forehead. She was taken to the Sherman Hospital in Elgin, Illinois, and after some three hours observation was discharged to her home. As the parents were hospitalized Catherine stayed with her grandmother for a short period. She had nightmares, generally was quite nervous, complained of various aches and pains, but after a reasonable period, according to the mother she did `pretty well.'

"She continued to do well until early in August, 1955 when while she was on a trip with her parents to North Dakota, and again sitting in the back seat of the car she gave a cry and the parents noted that she had suffered some sort of a `spell'. She has had three spells in all. The first one was as related above, the second one some ten days after the first. With each episode she apparently had just fallen asleep, would suddenly sit up, cry, stare, and then began to have jerking movements of the left side of the face, neck and shoulder but nowhere else. The first two episodes lasted a matter of minutes. The last one was longer, lasting possibly as long as 45 minutes. After the third episode she was taken to the St. Theresa Hospital in Waukegan, Illinois, where she remained for six days. She was then sent by her family physician, Dr. Adelman, to Dr. F.A. Gibbs for an electroencephalogram, and later was seen by Dr. Harold Voorhees. I am of the impression that she saw Dr. Voorhees the latter part of September 1955.

"From the time of the first episode, presumably on Dr. Adelman's recommendation she had been taking dilantin and phenobarbital but the medication recently had been reduced by Dr. Voorhees so that she now takes dilantin and phenobarbital as follows: She is given a half pill of dilantin four times a day and a half tablet of phenobarbital at bed time. I, of course, do not know what the doses might be. There have been no further spells but Mrs. Muscarello stated that Catherine is not doing as well in school as she had before.

"On occasion she might complain of headaches on coming home from school. Mrs. Muscarello impressed me as being a rather sincere woman and stated that Catherine had previously never had any seizures not even with high fevers as might be expected in childhood.

"On examination I saw an oriented, cooperative, rather quiet and rather chubby little girl of good intelligence. She spoke with no difficulty and in general was a most pleasant little girl. I was surprised at the extent of examination that we were able to carry out in one so young and am satisfied that our neurological examination was indeed most complete. The cranial nerve examination was absolutely within normal limits and so was the remainder of the neurological examination. The general physical examination, were it not for her chubbiness, was within normal limits also.

"X-rays were made of the skull at our request by Dr. Semmet and Dr. Baker and found to be within normal limits. These x-ray films are being forwarded to ...

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