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Hearst v. City of Chicago

JANUARY 31, 1973.




APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM V. DALY, Judge, presiding.


This is an appeal by defendant, City of Chicago, from a judgment on a jury verdict for plaintiff, Barbara Hearst, for damages sustained in a fall upon a defective city sidewalk. Defendant raises the following issues on appeal:

1. Whether the City of Chicago was denied an opportunity to show that plaintiff used false testimony to prove her claim; and

2. Whether the facts discovered after trial entitled the City to a new trial.

The facts are as follows:

On November 14, 1963, at 6:00 P.M., plaintiff testified that she left a grocery store at the intersection of Howard and Rogers streets in Chicago and, in attempting to cross the street, caught the heel of her shoe in a hole in the sidewalk and fell to the pavement. A Chicago Fire Department ambulance took plaintiff to a nearby hospital where it was discovered that her left femur below the hip was broken. An operation was performed by Dr. Edward Grossman, an orthopedic surgeon and a plate and nail were attached to her hip. Plaintiff continued to be troubled by her hip and also developed stiffness in her left shoulder. In September 1964, plaintiff was rehospitalized and an operation was performed on her hip and shoulder. Plaintiff did not return to her job with an interior decorating firm until 1968.

At trial the City attempted to prove that the sidewalk in question was not defective, but that plaintiff fell of her own accord during a dizzy spell. Plaintiff testified that she did not have any difficulty in walking before the accident and that she had never been treated for complaints of dizziness. Plaintiff's husband also testified that plaintiff had never suffered from dizzy spells. Dr. Grossman, who treated plaintiff after her fall, also testified that he found no evidence that plaintiff suffered from dizzy spells. On cross-examination, Dr. Grossman did admit that he wrote a letter, dated May 19, 1964, which stated that plaintiff sustained an injury when she fell on the sidewalk during a dizzy spell. Dr. Grossman admitted that the language was in his handwriting, but claimed that he did not know why it was written.

At the conclusion of the trial, a jury returned a verdict for plaintiff in the amount of $24,000. After the court entered judgment on the verdict, the City filed a post-trial motion, claiming that the verdict was based on perjured testimony and asking for a new trial. The City also filed an affidavit stating they had discovered that plaintiff had filed a claim against the German government for injuries suffered in a concentration camp, and that her file contained findings of physicians demonstrating that plaintiff suffered from dizzy spells long before the accident in question. To show that plaintiff, her husband, and Dr. Grossman, had given false testimony the City asked the court to allow it to take the depositions of two physicians, Dr. Marks and Dr. Esterman, who had treated plaintiff prior to and at the time of the accident in question and to order plaintiff to request the German government to turn over to the City all pertinent records in its possession pertaining to plaintiff's claim against the German government.

The court granted the City's request to take post-trial depositions and ordered plaintiff to authorize release of her records on July 24, 1970.

On December 9, 1970, the City deposed Dr. Marks and Dr. Esterman. Dr. Esterman testified that he attended plaintiff on the day of the accident in the emergency room of the Edgewater Hospital and discovered a fractured hip from a fall caused by plaintiff's tripping on a hole in a City sidewalk. He related that plaintiff did not say she had a dizzy spell. Dr. Esterman explained that an entry in his records which stated "fell because of vertigo and emotional state from concentration camp", was due to his misinterpretation of plaintiff's use of the term "vegetative dystonia" (a terminology given to all concentration camp individuals which embraces gastro-intestinal and cardiovascular conditions, but not dizziness, according to Dr. Esterman) which he mistook, due to plaintiff's heavy accent, for the term "vertigo, which is dizziness." Dr. Esterman stated that he and plaintiff confused the terms "dystonia" and "dizziness":

"I used dizziness and she used dystonia. In fact, we do it still today. She will say dystonia and I will say dizziness."

Dr. Marks testified that he had known plaintiff since 1956 and treated her for complaints arising from her stay in a concentration camp, including "* * * post traumatic spondylitis; nervous indigestion and a depressive state." Dr. Marks stated that plaintiff did mention dizziness in 1956 or 1957, but not subsequently and that dizziness never caused plaintiff to fall down. Dr. Marks stated that he never saw any objective symptoms of dizziness in plaintiff and that he never treated plaintiff for dizzy spells. He also stated that he furnished the German government with a report of his treatment of plaintiff in January of 1962.

After taking post-trial depositions, the City asked the court to impose sanctions upon plaintiff for her failure to authorize the release of her medical records. On January 25, 1971, the trial court denied defendant's motion to hold plaintiff in contempt for refusing to release the German records because the court found "* * * they would not materially affect the motion for a new trial." On January 29, 1971, the court also denied defendant's post-trial motion. The City then brought this appeal from the judgment on the verdict from the order denying the City's request that sanctions be imposed on plaintiff, and from the order denying the City's post-trial motion.

Defendant's initial contention on appeal is that the trial court improperly denied it an opportunity to demonstrate that plaintiff used false testimony to prove her claim, by failing to impose sanctions against plaintiff for her failure to authorize the release of her medical records from the German government subsequent to trial. Defendant maintains that those medical records would have shown whether plaintiff and her husband gave false testimony when they testified at trial that plaintiff had never suffered from, or been treated for, ...

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