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Melecosky v. Mccarthy Brothers Co.

OPINION FILED FEBRUARY 10, 1986.

STANLEY MELECOSKY, PLAINTIFF-APPELLANT,

v.

MCCARTHY BROTHERS COMPANY ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Champaign County; the Hon. Creed D. Tucker, Judge, presiding.

JUSTICE SPITZ DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from a judgment entered on a jury verdict, in favor of the plaintiff and against both defendants, in the circuit court of Champaign County. Plaintiff was awarded $40,000 for damages sustained as a result of the defendants' alleged violation of the Illinois Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, par. 60 et seq.).

In October of 1980, plaintiff, Stanley Melecosky, was working as an apprentice welder on the construction of a multistory animal clinic at the University of Illinois in Urbana. Defendant, C. Iber and Sons, Inc., was the coordinating contractor for the Animal Clinic Project (Project). Defendant, McCarthy Brothers Company, a prime contractor on the Project, was assigned, in part, to erect structural steel.

On October 9, 1980, plaintiff was assisting in a welding operation at the construction site. Plaintiff was working beneath a steel girder that had been previously suspended by a rope. According to the record, the rope severed and the girder fell, striking the plaintiff on the head and upper back. An examination and X rays taken immediately after the incident revealed that plaintiff's injuries included a "sprained back and a chip fracture of the third lumbar vertebra."

Thereafter, on October 30, 1980, plaintiff brought an action for damages against defendants in the circuit court of Champaign County. The complaint alleged that plaintiff sustained injuries as a result of defendants' failure to properly supervise the safety precautions taken at the job site by permitting the steel girder to be suspended by a rope, in violation of the Illinois Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, par. 60 et seq.).

A jury trial commenced on March 4, 1985. Two medical experts in the area of orthopedic surgery were called to testify. Dr. Bharat Mehta, plaintiff's treating physician, was called to testify at trial by the plaintiff. Dr. Robert Mussey, a nontreating physician, was called by defendant C. Iber and Sons, Inc.

Plaintiff also sought to introduce the evidence deposition of Dr. Donald Miller, a nontreating physician. The trial court found that Dr. Miller's opinions were based on both subjective and objective findings and excluded the deposition in its entirety.

At the conclusion of the trial, the jury returned a verdict for the plaintiff against both defendants and damages were awarded in the amount of $40,000. Judgment was entered on the verdict and plaintiff's post-trial motion was denied. Plaintiff now appeals.

On appeal, plaintiff does not expressly allege inadequacy of damages. Rather, plaintiff contends that the trial court committed reversible error in excluding the evidence deposition of Dr. Donald Miller.

The record reveals that approximately four months prior to trial, plaintiff went to Dr. Donald Miller at the suggestion of his attorney. Dr. Miller was aware that plaintiff had been referred to him by an attorney. Miller was also aware that litigation was pending and that he would be called to testify on plaintiff's behalf.

Dr. Miller performed an examination of plaintiff but was not asked to render treatment. Plaintiff provided Miller with a history, which included his version of the occurrence, the injuries sustained and the treatment he received. Thereafter, Miller performed the Valsalva and Allen tests and took X rays of plaintiff. It was estimated that the examination, including the tests performed and the X rays taken, lasted approximately 1 hour and 15 minutes.

Deposition testimony reflects that on direct examination Miller was first asked to relate and summarize the history as given to him by the plaintiff. Next, Miller was asked to disclose, "based both on subjective and objective findings," the results of his physical examination as to the severity and permanency of plaintiff's injury. Miller was also asked whether, from both an objective and subjective standpoint, plaintiff's injuries were caused by the girder falling on him.

Defendants objected during the deposition, arguing that since Miller was a nontreating physician and his opinions were based, in whole or in part, on subjective findings then the testimony was inadmissible hearsay.

Plaintiff sought to introduce Miller's deposition at trial. The trial court refused the use of this deposition "on the ground that, throughout the deposition, there are references made to the formation of the opinion by ...


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