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Falkenthal v. Pub. Bldg Com. of Chicago

OPINION FILED DECEMBER 2, 1982.

LYNN J. FALKENTHAL, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,

v.

PUBLIC BUILDING COMMISSION OF CHICAGO ET AL., DEFENDANTS-APPELLEES AND CROSS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. James L. Griffin, Judge, presiding.

JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 27, 1983.

This appeal arises out of a complaint for personal injuries allegedly suffered by plaintiff, Lynn J. Falkenthal, when she was struck on the forehead by a telephone booth door which opened into her path as she walked down the concourse connecting the Richard J. Daley Center to the Brunswick Building in Chicago. Named as defendants were: Public Building Commission of Chicago, owner of the Daley Center; Frank M. Whiston & Co., manager of the building; Eleanor White, who opened the door which struck plaintiff; Illinois Bell Telephone Company, owner of the telephone booth; and three architectural firms involved in the design of the booth, Skidmore, Owings & Merrill; Loebl, Schlossman, Bennett & Dart; and C.F. Murphy Associates. Illinois Bell was dismissed from the case prior to trial, the trial judge entered a directed verdict for Eleanor White at the close of plaintiff's case, and the jury found for Frank M. Whiston & Co. The jury returned a verdict in the amount of $1,079.50 in favor of plaintiff and against the remaining defendants and judgment was entered on that verdict. The trial court also awarded $6,845.61 to plaintiff for costs.

Plaintiff has appealed from the amount of the judgment and seeks a new trial on the issue of damages, contending: (1) the trial court erred in permitting defendants to adduce evidence relating to head injuries sustained by plaintiff prior to and after the injury at issue; (2) the trial court erred in failing to give three instructions relating to the possibility that the earlier injury sustained by plaintiff was an additional or contributing cause of the narcolepsy which plaintiff asserted was caused by the blow from the door; and (3) the trial court erred in giving a misleading interrogatory to the jury. Defendants have cross-appealed from the order awarding costs, asserting that under Illinois law many of the items on which the award was based were not recoverable as costs.

We affirm the judgment entered on the jury's verdict but reverse the trial court's order awarding costs and remand the cause for a new hearing on that issue.

The pertinent facts adduced at trial were as follows. On January 22, 1975, plaintiff was walking down the concourse between the Daley Center and the Brunswick Building when a telephone booth door suddenly opened into her path, striking her on her forehead above the right eye. Eleanor White, the occupant of the telephone booth, assisted her in walking to the first-aid room in the Daley Center where the bleeding was stopped and a butterfly bandage was applied to the cut. Plaintiff then lay down until her employer arrived to drive her home. Plaintiff suffered headaches through the night. The next day, after experiencing blurred vision and a continuing headache, she went to a hospital emergency room where she was treated by Dr. William Woodward. X rays taken at his request produced no sign of a fracture.

After this occurrence plaintiff began to experience two physical symptoms which persisted until the time of trial. She would suffer from uncontrollable urges to fall asleep and on other occasions she would lose the strength in her muscles and collapse. In May 1976 plaintiff consulted Dr. Richard Nilges about these symptoms. Dr. Nilges was board-certified in neurological surgery and was a member of the American Association of Neurological Surgeons, the Congress of Neurological Surgeons, and the Chicago Neurological Society among other professional medical organizations.

It was Dr. Nilges' opinion, based upon a reasonable degree of medical certainty, that plaintiff suffered from narcolepsy (attacks of sleepiness) and the associated condition of cataplexy (uncontrollable loss of muscle control) caused by the blow to her head from the telephone booth door. He based his opinion on plaintiff's statement that the attacks first started after she received the blow and her description of having suffered amnesia shortly after the injury. This latter fact indicated to the doctor that plaintiff suffered a concussion which could have disturbed the reticular formation of the brain (that part of the brain controlling wakefulness and sleep) and produced the conditions of narcolepsy and cataplexy.

Dr. Nilges had treated 14 other patients for narcolepsy and he testified that none of those cases was caused by cerebral trauma. He also stated that none of the 6,000 cases of head trauma he had treated in his career had resulted in narcolepsy. The only scientific literature cited by Dr. Nilges in support of his opinion that narcolepsy could be caused by a blow to the head was a textbook on neurology stating that in rare instances narcoleptic states may accompany cerebral trauma. However, that treatise also stated that the cause of true narcolepsy was unknown.

Dr. Harold Klawans testified for defendants. He was senior attending neurologist, associate chairman of the department of neurological sciences, and professor of neurological sciences at Rush-Presbyterian-St. Luke's Hospital in Chicago. He testified that he had written or edited over 30 books and had written over 200 articles, all in the field of neurology. A number of these writings concerned narcolepsy.

Dr. Klawans described narcolepsy as an idiopathic disease consisting of four separate disease components: narcoleptic attacks, which are attacks of irresistable sleep; cataplexy, which is a sudden loss of muscle tone resulting in loss of the use of that muscle; sleep paralysis, in which the patient is awake but cannot move his arms or legs; and hypnogogic hallucinations, the experience of very vivid, well-recalled hallucinations. According to Dr. Klawans, a patient could have one or two or a mixture of these components.

It was Dr. Klawans' opinion, based on three separate types of medical evidence, that trauma cannot cause narcolepsy. First, because narcolepsy is a highly sophisticated and organized expression of physiological activities of the brain, it could not be caused by trauma, which he described as a "crude insult to the nervous system" which could destroy but not cause the complex reorganization of activity involved in narcolepsy. Secondly, in the approximately 1,000 cases of head trauma he had treated he had never observed narcolepsy to result. Thirdly, scientific studies of large groups of patients with head trauma, including one study of 1,000 consecutive patients, had resulted in the conclusion that none of those patients had narcolepsy related to trauma. Finally, Dr. Klawans noted that in the various treatises on head trauma no mention was made of narcolepsy because it had not been demonstrated to be caused by such trauma.

Dr. Klawans had examined plaintiff and concluded that she could well have narcolepsy but he would like further diagnostic tests to be sure. He also testified that patients usually become aware of the symptoms of narcolepsy between the ages of 15 and 30. ...


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