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Carlasare v. Wilhelmi





Appeal from the Circuit Court of Cook County; the Hon. Paul F. Elward, Judge, presiding.


Plaintiff, Linda Carlasare, brought suit for injuries sustained when a vehicle driven by defendant, Gary Wilhelmi, collided with a vehicle operated by a second defendant, Bhaskar Patel. A jury found both defendants liable. Plaintiff was awarded $65,000 in damages. Plaintiff appeals from the judgment entered on the jury verdict and from an order denying her post-trial motion seeking a new trial on damages. Plaintiff contends on appeal that: (1) defense counsel's comments during closing argument that plaintiff was really seeking one-fifth of the damages asked for and that plaintiffs' lawyers always seek five times more than they are entitled to were prejudicial; (2) defendant Patel's counsel's comments in closing argument that plaintiff had not presented evidence of disability because there was nothing she could do before the accident that she could not do after the accident were prejudicial; and (3) the jury's award of $65,000 was against the manifest weight of the evidence because it does not reflect an award for plaintiff's disability. We affirm.

Plaintiff was injured in an automobile accident in which she was a passenger in a vehicle driven by Wilhelmi. The automobile in which she was riding collided with other vehicles, which were unoccupied, in two northbound lanes of I-55. One of these unoccupied automobiles was owned by Patel.

At trial, the following evidence was presented concerning plaintiff's injuries. Plaintiff was taken to a hospital emergency room after the accident. When she awoke there, her face was bandaged, she could not hear out of one ear and her right eye was swollen shut. During this initial hospital stay, a Dr. Tsai performed an operation on her face. Plaintiff had double vision, severe headaches, her face was sore and swollen, and her left arm and leg were sore when she was discharged.

Dr. Charles Janda, a specialist in plastic reconstructive surgery, first examined the plaintiff a few weeks after the accident. She complained of double vision and numbness on the right side of her nose and upper lip. Dr. Janda found that she had some numbness on the right side of her nose and that she was unable to elevate her right eye to look up at the ceiling. Dr. Janda's diagnosis was that plaintiff had a severe fracture of the right orbit, or eye socket, and a strong likelihood of a skull fracture. Immediately after, he performed an operation to repair the nose fracture and to elevate the floor of the right eye socket to its correct position. The operation corrected plaintiff's double vision straight ahead but not up and down.

Because plaintiff began having difficulty picking up objects, Dr. Janda referred her to a neurologist, Dr. Helge Frank. Dr. Janda stated that Dr. Frank found that she had a cerebral concussion with possible contusions of the brain stem, that the eye flickered back and forth when she looked up and that she experienced mixed double vision in all fields of gaze except straight forward. In Dr. Janda's opinion, plaintiff's condition is permanent and she still has double vision in all vision fields except straight ahead. She also had difficulty at one time breathing through her nose. Surgery was performed to repair the obstructions to her breathing.

Dr. Janda referred the plaintiff to Dr. Eugene Folk, an opthamologist and a specialist in muscle surgery. He diagnosed plaintiff as having suffered a blowout fracture of the eye socket with a resulting weakness of the muscles that elevate and depress the eye. Because she could not move her right eye downward, he prescribed prism glasses which enabled her to read in the down position. Dr. Folk ruled out further surgery because the eye had adapted and because more surgery might create additional problems. In his opinion, plaintiff's vision is 100% impaired in her binocular, or single, vision and her condition is permanent.

Dr. Theodore Zekman, an opthamologist, examined plaintiff at the request of Wilhelmi's counsel. He found paralysis in the right eye which is uncorrectable through surgery. He also found that plaintiff has double vision in all vision fields but that it is very slight when she looks straight ahead. Her double vision is most evident when she looks downward and when she is tired. During cross-examination, Dr. Zekman testified that contrary to a written report he prepared prior to trial, plaintiff's condition is not permanent. He explained that he had not meant his report to imply that plaintiff's condition is permanent, because if she holds her head at an angle different from normal she could compensate for the double vision.

Plaintiff testified that after the first operation performed by Dr. Janda, there was some improvement in her double vision when she looked straight ahead, keeping her eyes level. She still saw double when she looked up, down or sideways. Plaintiff had headaches, difficulty sleeping and nightmares about the accident. After the operation on her nose, she was able to breathe through her nose without difficulty. At trial she stated that she had not completely regained her senses of smell or taste. However, her deposition testimony stated that she no longer had any problem with her sense of smell. After being fitted with prism glasses, she was able to read.

Plaintiff was able to make up her college examinations and complete the school year. At the beginning of the next school year, she accepted a job as a lifeguard for two hours a week. She held this job for 1 1/2 years. She graduated with her class, earning a degree in public health. At the time of trial, she was employed in her field. Plaintiff has a driver's license and is able to operate an automobile. She is not as capable as she was prior to the accident in athletics, such as softball and tennis. Plaintiff testified that she had lost $885 in wages and had incurred $10,500 in medical expenses due to the accident.

In closing argument, plaintiff's counsel argued that although she had recovered reasonably well from the various fractures and lacerations, she still suffered from double vision which would be with her for the remainder of her life. Plaintiff's attorney suggested that "something in the neighborhood of $275,000 to $300,000" would reasonably compensate her.

Defendant Wilhelmi's counsel in closing argument argued: "We have a big boxcar figure. That is the figure of $250,000. And what really is looked for is about a fifth of that. That is the figure, but start high. The 250 is not compensation that she is entitled to." Referring to another plaintiff (whose case was consolidated for trial), he argued: "Now what is the sum for that? $150,000. Again an attempt. * * * Again, you see the ploy. Make it high. Divide that by five."

Defendant Patel's counsel made a similar argument:

"Now, you know, plaintiffs' lawyers love to hear defense lawyers talk about damages. They love to hear that because they figure it always makes us look callous or cruel or hardhearted, and I suppose it is for that reason that plaintiffs' lawyers always feel justified in asking for ...

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