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Wetherell v. Matson

OPINION FILED AUGUST 31, 1977.

BRIAN WETHERELL, A MINOR, BY LINDA WETHERELL, HIS MOTHER AND GUARDIAN, PLAINTIFF-APPELLANT,

v.

ROBERT MATSON ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Macon County; the Hon. ALBERT G. WEBBER, III, Judge, presiding.

MR. PRESIDING JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 4, 1977.

The jury returned a $9,000 verdict against both defendants and we are here concerned only with the issue of damages, not liability.

Plaintiff Brian Wetherell, then age 5, was injured when defendant Robert Matson, then age 13, operating a riding lawn mower upon the premises of his father, Donald Matson, backed the mower over plaintiff's foot. Plaintiff had been playing in Matson's yard just prior to the accident. Robert Matson testified that after he saw plaintiff get on his bicycle and ride off down the sidewalk, he started the mower and made one pass around the yard. Having missed a patch of grass, Robert then looked over his right shoulder at the spot he had missed and backed up without looking over his left shoulder. He then heard the motor clutter, saw part of a shoe fly out and heard a scream. The engine stopped and young Matson saw plaintiff lying on the grass behind him with his foot under the mower.

At the hospital emergency room, plaintiff was treated by Dr. Joseph Ankenbrandt, a Decatur orthopedic surgeon. He treated plaintiff's wound by cleaning it, amputating the third toe and amputating the proximal portion of the fourth toe and placing plaintiff's leg in a cast. Plaintiff was hospitalized for nine days. The doctor surmised that pain persisted for two or three months with some aching for an additional three to six months.

As the result of the injury, growth centers in plaintiff's right foot were injured causing that foot to grow more slowly than the left. The doctor testified irregular growth of the metatarsals may very likely prevent the smooth tapering of a weight-bearing surface. The second toe is deformed and tends to stand up due to tendon imbalance. The doctor observed "an adductive deformity of the fifth toe" which he explained is the fifth toe drifting towards the place formerly occupied by the third and fourth toes because these are no longer there to act as a spacer. He characterized the plaintiff's injury as permanent with moderate impairment.

The plaintiff is required to wear split size shoes and will likely be required to undergo one or more of the following procedures: (1) A second toe reconstruction; (2) removal or revision of the residual metatarsal heads to create a reasonable weight-bearing surface; and (3) a tendon transfer or stabilization. Dr. Ankenbrandt judged there to be a 75% likelihood that the plaintiff would require further surgery on the second toe whereas he saw only a 20-25% possibility that either of the other two operations would be required. He explained that the need for further corrective surgery could only be assessed "within a year or two after he [plaintiff] is full grown when he is sixteen or seventeen years old." The doctor estimated that a reasonable fee for operations (1) and (2) would be around $400 at current rates, plus a $600-$800 hospital bill. Following Dr. Ankenbrandt's testimony, the court granted defendant's motion to strike the portion of the testimony pertaining to future medical expenses on the basis that such costs would be incurred, if at all, while plaintiff was still a minor, in which case they would be the obligation of the parents.

Plaintiff's mother testified that he was in a great deal of pain while in the hospital. She described her son as an active, normal 5-year-old prior to the accident. Since his recovery he has been able to engage in sports and most of the activities he enjoys. When he tires, he drags his injured foot, turns it inward and walks on the inside of his foot. On occasion, people have remarked about plaintiff's deformity, causing him considerable embarrassment.

Finally, Mrs. Wetherell testified that Brian had seen Dr. Schrodt, another orthopedic surgeon, two months prior to trial. Dr. Schrodt was not called as a witness by either side. There was no evidence that Dr. Schrodt was not available to testify or that he could not have been called by the defendant. During closing argument defense counsel brought up the subject of Dr. Schrodt saying:

"There is another X-ray over here that is interesting, and I am not going to put it on any shadow box, all I am going to do is read the legend where it says 2/27/76, Dr. Schrodt. You heard Mrs. Wetherell say that they had this young man to Dr. Schrodt less than two months ago today, almost a year after he had been seen by Dr. Ankenbrandt. And they want you to speculate that his conditions are getting bad but they don't bring the Doctor that knows them later than the Doctor they presented and you can consider that pretty strongly, ladies and gentlemen."

In rebuttal, plaintiff's attorney tried to explain his failure to call Dr. Schrodt saying:

"Now, I want to talk a little bit again about the subject of damages. Now, Mr. Owen told you in his final argument that the boy went to Dr. Schrodt. Well, Doctors are busy people, and Dr. Schrodt was going to say the same thing — ."

The following colloquy then ensued:

"MR. OWEN: Now, if the Court please, again I will make a motion, and I think it is ...


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