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08/14/87 Patrice Wilson, v. Chicago Transit Authority

August 14, 1987

PATRICE WILSON, PLAINTIFF-APPELLEE

v.

CHICAGO TRANSIT AUTHORITY ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

513 N.E.2d 443, 159 Ill. App. 3d 1043, 112 Ill. Dec. 29 1987.IL.1178

Appeal from the Circuit Court of Cook County; the Hon. James S. Quinlan, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. SULLIVAN, P.J., and PINCHAM, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

This is an appeal by defendant, the Chicago Transit Authority (the CTA) from a jury award in the amount of $18,900 in favor of plaintiff, Patrice Wilson (Wilson), in a negligence action. For the reasons set forth below, we affirm.

On January 16, 1982, Wilson was injured when she alighted from a CTA bus at 99th and Hamilton Avenue in Chicago. On August 22, 1982, she filed suit against the CTA and its bus driver, Larry Williams (Williams). During trial, plaintiff called Dr. Michael Treister, one of her two treating physicians, to testify. Treister, a specialist in orthopedic surgery, treated Wilson as a consultant from January 26, 1982, to April 24, 1982. Treister had been requested by Dr. Ernest Languito, Wilson's family practitioner, to render an opinion and make recommendations as to her treatment. After April 1982, Treister did not see Wilson as a patient again until the time of trial in November 1985. When asked to testify as to the permanency of Wilson's injury, the trial court initially sustained the CTA's objection to Treister's testimony based upon the fact that Treister had not conducted a recent physical examination of Wilson. It is a rule that an opinion held by an expert at the time of trial is the only evidence that may be considered by the trier of fact. A present opinion based upon an examination a number of years prior to trial cannot represent an opinion at the time of trial. (Henricks v. Nyberg, Inc. (1976), 41 Ill. App. 3d 25, 353 N.E.2d 273.) After an offer of proof by plaintiff, however, Treister testified that he examined Wilson during the noon recess of trial, one hour before being called to testify, and stated that a nerve root irritation suffered by Wilson was permanent.

The jury subsequently found that the total damages suffered by Wilson amounted to $21,000. It also found, however, that 10% of Wilson's damages was proximately caused by her own negligence and, accordingly, awarded her $18,900. The court entered its judgment on November 15, 1985, and, on the same day, dismissed Williams as a defendant by agreement of the parties. On January 24, 1986, the court denied the CTA's motion for new trial and remittitur.

On appeal, the CTA contends that: (1) the trial court abused its discretion in allowing Wilson's medical expert, Dr. Michael Treister (Treister) to testify as to the permanency of Wilson's injury in violation of Supreme Court Rule 220; (2) the trial court erred in refusing to permit it to cross-examine Treister with respect to his bias, interest, and motive for testifying on behalf of Wilson; and (3) it was denied a fair trial as a result of comments made by Wilson's counsel that Williams was no longer driving a CTA bus.

Supreme Court Rule 220 (103 Ill. 2d R. 220), which governs the disclosure of expert witnesses, provides, in pertinent part:

"An expert is a person who, because of education, training or experience, possesses knowledge of a specialized nature beyond that of the average person on a factual matter material to a claim or defense in pending litigation and who may be expected to render an opinion within his expertise at trial. . . .

Where the testimony of experts is reasonably contemplated, the parties will act in good faith to seasonably:

(i) ascertain the identity of such witnesses, and

(ii) obtain from them the opinions upon which they may be ...


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