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Mesick v. Johnson

OPINION FILED FEBRUARY 14, 1986.

MARY MESICK, PLAINTIFF-APPELLANT,

v.

CLARENCE JOHNSON, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. John J. Crown, Judge, presiding.

PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Plaintiff brought this action to recover for personal injuries she sustained in a collision between defendant's automobile and one in which she was a passenger. Following a trial, the jury found defendant liable and entered a verdict for plaintiff in the amount of $5,000. On appeal, plaintiff contends that she is entitled to a new trial on the issue of damages because (1) the verdict was based on sympathy for the defendant; (2) the trial court erred in (a) giving an incorrect damage instruction to the jury and (b) excluding certain testimony and evidence relating to her injuries.

Since liability is not at issue in this appeal, a recapitulation of the entire trial transcript is unnecessary; therefore, except for the following introductory statement of the circumstances giving rise to this litigation, we will incorporate the facts relevant to the issues presented in our review thereof.

The record reveals that the collision occurred on May 20, 1980, when defendant, Clarence Johnson, made a left turn into the path of the automobile in which plaintiff was a passenger at the intersection of 127th Street and Kedzie Avenue in Blue Island. Upon impact, plaintiff, who had been dozing in the front passenger's seat, was thrown forward, striking her face and right knee against the dashboard. She immediately began screaming to her sister, the driver of the car, that she could not see. She was transported by ambulance to the emergency room of a nearby hospital, examined, treated and then released. At trial, plaintiff sought to introduce evidence that as a result of the accident, she suffered injuries both to her eyes — resulting in chronic diplopia (double vision) — and to her nose — for which she eventually underwent corrective surgery; but over her objection, the trial court excluded or struck all evidence relating to the nasal injuries. The jury found defendant liable and awarded plaintiff $5,000. Her post-trial motion for a new trial on the issue of damages was denied, and this appeal followed.

• 1 Plaintiff first contends that the trial court abused its discretion in denying her pretrial motion in limine regarding the location from which defendant — an elderly man confined to a wheelchair — would testify. She argues that the positioning of him in his wheelchair directly in front of the jury elicited the jurors' sympathy for him and influenced them to assess an inadequate amount of damages.

We find no basis in the record for this argument. Initially, we note that although plaintiff asserts that her attorney made a pre-trial "oral motion in limine," the record discloses that the only mention he made of this matter was to inquire where defendant would be positioned. After a brief discussion with counsel of the various options, the trial court determined that the most feasible was to allow defendant to testify from his wheelchair in front of the bench. While plaintiff's counsel did, at that time, express his concern that the jury might be distracted by the wheelchair, he proposed no alternate suggestions, and when the court explained that it was not possible to place the wheelchair in the witness box, he responded "okay," and proceeded on to another topic. In view thereof, we believe this issue has been waived.

In any event, it is also our opinion that given the totality of circumstances, the trial court's decision was not unreasonable. As noted during argument on plaintiff's post-trial motion on this point, there is nothing in the transcript of proceedings to suggest that it was defense counsel's intention to highlight or emphasize defendant's handicap so as to appeal to the sympathy of the jury. Indeed, defendant's only appearance at trial was on the day he was called as an adverse witness by plaintiff during her case in chief. Since the jurors had already been advised of defendant's age and condition and, in fact, had already seen him seated in his wheelchair next to counsel's table prior to testifying, we see no prejudice to plaintiff from the court's decision that, for purposes of audibility and visibility, defendant be positioned in a centralized courtroom location and that the least disruptive way to accomplish this was to place his wheelchair in front of the bench.

• 2 We next consider plaintiff's contention that the trial court abused its discretion in excluding certain evidence and testimony relating to her injuries.

Among that evidence was the testimony of Doctor Peter Morse, a board-certified opthalmologist and professor at the University of Chicago (Billings) Hospital. Doctor Morse testified that customarily, in the initial visit, a patient is seen first by a resident physician who takes a medical history and performs a physical examination, and then by the attending physician, who reviews the resident's findings, examines the patient to confirm the preliminary diagnosis and outlines a treatment plan. Doctor Morse further testified that he had no independent recollection of having treated plaintiff 3 1/2 years earlier and that her formal hospital records had been lost but that, according to his own office records, including an abbreviated medical history and a set of X rays taken of plaintiff — both of which he brought with him to court, and which defendant does not deny were hers — she was examined at Billings on February 23, 1981, and that he was the attending physician of record that day. He concluded therefrom that he had in fact examined her, and further stated that her history reflected that she sustained trauma to the left side of her face in an automobile accident in May 1980, and that an examination performed shortly thereafter revealed that she suffered from restricted elevation of her left eye and double vision.

When plaintiff's attorney asked Doctor Morse whether his records of February 1981 contained any physical findings with respect to plaintiff, defense counsel interposed an objection and, after a lengthy in-chambers discussion, the trial court sustained it, ruling that Doctor Morse would not be allowed to testify from his records of plaintiff absent a demonstration that he had some recollection of having examined her. After further discussion, the trial court took plaintiff's counsel aside for a private, off-the-record conversation, following which the court stated that "counsel * * * feels he probably would be better off in not continuing with this doctor * * *," and then suggested that he (counsel) inform the jury that because plaintiff's hospital records had been lost, Doctor Morse was being withdrawn as a withdrawn as a witness. Counsel complied and the doctor's testimony was concluded.

Defendant argues that plaintiff has waived this issue because "there is no evidence in the record that the trial court instructed plaintiff's counsel to withdraw Doctor Morse" and that, to the contrary, the trial court's statement establishes that he voluntarily withdrew this witness. We find no merit in this argument. It is evident from the transcript that plaintiff's attorney steadfastly maintained his position as to the admissibility of the doctor's testimony and submitted to the court's "suggestion" that Doctor Morse be withdrawn only after the trial court had (1) sustained the defense objection to the doctor testifying from his own records, and (2) took him aside for an off-the-record conversation. Since it had already been determined that Doctor Morse had no independent recollection of plaintiff — which the trial court stated was a prerequisite to admission of his testimony — refusal by counsel to withdraw him would have been futile.

Equally unpersuasive is defendant's argument that this issue is waived because plaintiff also failed to make an offer of proof as to what Doctor Morse's testimony would have shown. Again, the record reveals that plaintiff's attorney informed the court that he would testify that the medical history and X rays in his possession were taken at his direction by hospital personnel whom he, as attending physician, supervised, and that the X rays showed evidence of a fracture of the orbit in plaintiff's left eye. As noted, however, the court ruled that absent personal recollection of plaintiff, Doctor Morse could not testify as a treating physician that he directed the X rays be taken or to what they disclosed.

Expounding upon that ruling, defendant further argues that since Doctor Morse was not able to testify as a treating physician and had not been tendered as an expert, there was no theory upon which to justify admission of his testimony. We disagree. In our view, the records Doctor Morse brought to court — which defendant does not dispute were plaintiff's — establishing that she was seen at Billings Hospital on February 23, 1981, together with his testimony that as the attending physician on that date he would have had to see plaintiff after the preliminary examination by the resident physician working under his supervision, provided a sufficient foundation to allow him to testify from his office records and, of course, be cross-examined thereabout. See Wright v. Yellow Cab Co. (1983), 116 Ill. App.3d 242, 451 N.E.2d 1313.

Moreover, we do not believe that the fact that Doctor Morse had not formally been tendered as an expert witness would, in itself, necessarily preclude him from testifying as such, provided his qualifications to do so were established, *fn1 since it appears from the transcript that defendant had deposed him prior to trial, thereby eliminating the potential for ...


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