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Vandermyde v. Chicago Transit Authority





APPEAL from the Circuit Court of Cook County; the Hon. ROBERT E. CHERRY, Judge, presiding. MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Mr. JUSTICE MEJDA delivered the opinion of the court:

Plaintiff brought this action against defendants, Chicago Transit Authority (CTA) and Joseph Kelso, a CTA driver, for damages from injuries sustained in a rear-end collision in which a bus driven by Kelso struck a car which in turn hit the truck driven by plaintiff. A jury returned a verdict of $100,000 in favor of plaintiff and judgment was entered on the verdict. Following denial of their post-trial motion, defendants appealed, contending that: (1) the opinion testimony of plaintiff's expert witness was based on an improper and misleading hypothetical; (2) the trial court improperly restricted defendants' inquiry into plaintiff's prior back condition; (3) plaintiff was impeached; and (4) the jury instructions were improper in that they were lengthy and repetitious with regard to liability and damages. We reverse and remand. The pertinent facts follow.

Plaintiff first called defendant Kelso as an adverse witness under section 60 of the Civil Practice Act. (Ill. Rev. Stat. 1975, ch. 110, par. 60.) Kelso, a bus driver for the CTA for 14 years, was operating a bus northbound on Ashland Avenue on May 4, 1972, the day of the collision. Traffic was bumper to bumper, moving at what Kelso estimated to be about 10 to 12 miles per hour in a stop-and-go fashion. Kelso's bus was in the middle lane of three lanes, about 10 feet behind the car in front of him, and there was a truck ahead of the car. The bus was moving approximately 10 miles per hour when the truck and the car stopped suddenly. Although Kelso put his foot on the brake, the bus collided with the car, which was pushed into the rear of the truck. Kelso said he was going less than one mile per hour at the time of the impact. Plaintiff, who was driving the truck, had said that he was all right after the accident.

Dr. Allan Hirschtick, an orthopedic surgeon, was called as an expert witness. He had examined plaintiff twice, once on September 2, 1975, when he performed an orthopedic examination, and again on May 25, 1976. He found a loss in the range of both extension and rotation of plaintiff's head and neck and there was some impairment of sensation in the right hand. There was also a loss of extension of plaintiff's lower spine and a test of his ability to raise his legs indicated some trouble in the lumbo-sacral area of the lower back. Dr. Hirschtick took several X rays which disclosed that there had been a permanent fusion of the sixth and seventh cervical vertebrae by bone graft. The X rays did not show any problem with the bones or joints in the lower spine. Dr. Hirschtick concluded that plaintiff had two problems with his back. The first was a herniated intervertebral disc which had been treated by surgical fusion of the sixth and seventh cervical vertebrae. The other problem could be diagnosed as a lumbar disc syndrome, although the lower lumbar disc was not visible in the X rays.

A hypothetical question was posed over defendants' objection and subject to being connected up with evidence yet to be produced. Dr. Hirschtick believed there was a causal relationship between the accident of May 4, 1972, and the condition described in the hypothetical question which included the findings of his examination of plaintiff. He also stated that it was not unusual for the hypothetical man not to see a physician until August with a severe complaint, because an injury to an intervertebral disc causes gradual deterioration and increasing discomfort.

On cross-examination, Dr. Hirschtick testified that the condition of the hypothetical man's neck and spine before the date of the accident was significant and that he based his opinion on the facts that there was no prior history of neck or back problems and that the patient complained of injury to his neck and back after the accident.

Plaintiff testified that he was a truck driver on the date of the accident and was driving a 16-foot refrigerated truck. His work included loading the truck and making deliveries of cartons weighing from 30 to 75 pounds. He was a member of a union, making $5.31 an hour. He described the traffic in the same manner as did Kelso and stated that he was not aware that there was going to be an accident until he felt the impact and the jolt of his truck. He was thrown backwards into the back of the inside of the cab, which was a few inches behind the back of his seat, which had no headrest. He got out of the truck and walked to the rear of the truck where he saw the bus and the car. After leaving the scene of the accident he returned to the warehouse, parked his truck and obtained accident reports. His left leg was scraped and he had a slight kink and soreness in his neck. He took aspirin and continued to work, but the pain got progressively worse, his arm was becoming increasingly numb and he could do no lifting whatsoever. He first sought medical treatment on August 8, 1972, when he saw one Dr. Vanderbilt who ordered X rays and referred him to Dr. Eli Tobias.

Plaintiff was hospitalized and put in traction. After additional tests, he underwent surgery on his neck. He wore a neck brace when he was released from the hospital, wearing it from about three days after the surgery until February 5, 1973. He didn't work between August and February and had difficulty working when he returned, with continued numbness in his right hand. He worked until August 9, 1974, when his plant closed. He was unable to get further work as a truck driver, then worked as an industrial tank cleaner and a short order cook at marked reductions in wages. He had visited an osteopath and a chiropractor because of the pain in his neck and numbness on his right side. He added that he still had numbness and a constant ache down his side and that he was unable to do heavy lifting or participate in sports activities.

On cross-examination, plaintiff testified that he had filled out accident reports for his employer the day after the accident, although the date on the report was August 25, 1972.

Dr. Eli Tobias, a neurosurgeon and plaintiff's treating physician, testified that his initial examination of plaintiff included taking a history of his condition, in which plaintiff related his involvement in the accident in May and that since that time he had been complaining of aches and pains radiating into the shoulder blades, with severe episodes of pain in the neck. Upon conducting a neurological examination of plaintiff, Dr. Tobias found that extending plaintiff's head to the right caused sharp pains to radiate into the shoulder, arm and hand. Further examination disclosed tenderness in the cervical spine and weakness in the elbow.

Dr. Tobias followed a conservative course of treatment which included hospitalization and physical therapy, and only performed surgery after additional tests showed that plaintiff was not improving. Dr. Tobias believed that the accident did have a causal relationship to plaintiff's condition, stating that the kink in plaintiff's neck could gradually become aggravated through additional irritation of the nerve and slippage of the disc caused by plaintiff's moving his neck. While the fusion of the vertebrae was permanent, Dr. Tobias could not say if plaintiff's overall condition was permanent.

On cross-examination, Dr. Tobias testified that he did not recall ever treating plaintiff for the lumbar area of his back. Plaintiff had not complained of any pain in his lower back either when he was giving Dr. Tobias his history or while he was hospitalized. He examined plaintiff on October 26, 1972, at which time he found plaintiff to be doing very well and told him that he need not wear the brace constantly, but that he could wear it to support his neck when necessary. The next time Dr. Tobias saw plaintiff was in January 1973, although he had received a call from plaintiff or his wife on November 20, 1972, in which he was told that plaintiff had fallen down some stairs and that his neck hurt. In the January visit, Dr. Tobias noted that plaintiff's right arm was doing well, but that plaintiff complained of numbness on his left side, which he had begun to notice after he fell down the stairs. Dr. Tobias' record of the January visit contained the first reference to any complaint relative to plaintiff's back. Dr. Tobias saw plaintiff again in March 1973 at which time plaintiff complained of pain in his back and numbness to his left arm. There was no complaint of any pain in plaintiff's neck at that time and Dr. Tobias had not treated plaintiff since then.

On redirect examination Dr. Tobias stated that plaintiff's fall occurred toward the end of the recovery period and that a fall down stairs is more likely to cause injury after recent surgery. He also stated that a neck brace keeps the neck in one position and inhibits one's ability to look down at differences in levels. Dr. Tobias testified further on re-cross-examination, saying that plaintiff's neck brace would have been removed from constant wear in late October.

At the close of plaintiff's case, defendants' motion to strike Dr. Hirschtick's testimony ...

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