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10/06/87 Milton Brown, v. Chicago and North Western

October 6, 1987

MILTON BROWN, PLAINTIFF-APPELLEE

v.

CHICAGO AND NORTH WESTERN TRANSPORTATION COMPANY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

516 N.E.2d 320, 162 Ill. App. 3d 926, 114 Ill. Dec. 165 1987.IL.1506

Appeal from the Circuit Court of Cook County; the Hon. James A. Geroulis, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE SCARIANO delivered the opinion of the court. STAMOS and HARTMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO

Plaintiff-appellee Milton Brown brought suit against his employer, the Chicago and North Western Transportation Company (North Western), pursuant to the Federal Employers' Liability Act , 45 U.S.C. sec. 51 et seq. (1982), to recover damages for personal injuries he sustained while in the course of his employment. North Western admitted its liability; therefore, the only issue at trial was that of damages. The jury returned a verdict in favor of Brown in the amount of $175,000, itemizing his damages as follows: $107,000 for the value of past and future earnings lost, $50,000 for pain and suffering, and $18,000 for disability.

North Western appeals, and presents the following issues for review: (1) should the trial court have instructed the jury on Brown's duty to mitigate his damages; (2) did the trial court err by allowing the jury to award Brown damages for future lost earnings without reasonably certain proof that such damages would be sustained in the future; (3) did the trial Judge abuse his discretion when he precluded North Western from impeaching Brown's credibility with a 1977 burglary conviction; (4) should the trial court have required expert economic testimony as a precondition to an award of damages for future earnings lost; and (5) were the damages awarded either excessive or inconsistent? We reverse the decision of the trial court and remand the case for a new trial.

A review of the record discloses that on February 15, 1985, Brown commenced the instant suit against North Western, alleging that on January 10, 1985, he was employed as a coach car cleaner and was assigned to mop the first floor of a bi-level commuter car while another employee, David Williams, inspected the second level. According to Brown, Williams placed a claw hammer on a shelf which was nine feet above the floor where Brown was working, and as the men performed their respective tasks, the hammer somehow fell and struck Brown on the right side of his lower back. North Western denied the factual allegations asserted in Brown's complaint, and initially proffered the affirmative defense that Brown's conduct was the sole and proximate cause of his injury. Later, however, North Western stipulated that it was liable for the injury. The parties were unable to agree on a dollar figure as to damages, however, and trial ensued on that issue alone.

At trial, Brown testified that he tried to continue working after being struck by the hammer, but could not endure the pain emanating from his back. He reported the incident to his supervisor, who in turn referred him to Dr. Thomas Cook of North Western's medical department. After conducting a physical examination, Dr. Cook directed Brown to go home, rest, and return to work on Monday, four days later. Upon his return on the day indicated by the doctor, however, Brown still complained of pain; consequently, North Western sent him to the Northwestern Hospital Emergency Room, where he was treated for one hour and released with instructions to see Dr. Proctor Anderson.

Brown subsequently visited Dr. Anderson on January 18 and 25, and the doctor prescribed bed rest and muscle relaxants to relieve his pain. Dr. John Hefferon, an associate of Dr. Anderson's retained by North Western as an orthopedic consultant, also examined Brown on January 22. Dr. Hefferon is certified by the American Board of Orthopedic Surgery and is a teaching associate in that specialty at various Chicago area hospitals. He testified on behalf of North Western that when he examined the patient he did not detect any bruises, puffiness, or discoloration on Brown's lower back area. He then asked Brown to perform a variety of motion tests consisting of bending and stretching exercises, and the results indicated that Brown suffered a 50% loss of mobility. However, he claimed that Brown tested normal on reflex tests and other physical examinations which did not require Brown's cooperation for accurate results. On the basis of these observations, Dr. Hefferon diagnosed Brown as having a "lumbar contusion," or a bruise of the lower back, though he did not believe that the injury was a serious or chronic condition. Brown testified that Dr. Hefferon advised him on February 15 that he could return to work.

Instead of returning to work, Brown consulted Dr. Jamie Bendersky, who admitted him to Westlake Community Hospital on February 19, 1985. During a seven-day stay at Westlake, Brown was subjected to a battery of tests designed to determine the source of his discomfort. The results of these tests, however, consistently indicated that there was nothing objectively wrong with him. Brown thereafter underwent physical therapy on an outpatient basis through April of 1985, at which time he reported some improvement in his condition. Frustrated at his inability to find the cause of Brown's pain, Dr. Bendersky referred Brown to Dr. Edward Gordon, head of the Rehabilitation Department at Westlake Hospital.

Dr. Gordon graduated from Harvard College and Tufts Medical School, has been certified in physical medicine and rehabilitation since 1962, and has published 57 articles in professional journals and other publications. On Brown's behalf, he testified that he performed a neurological and orthopedic examination on Brown on November 18, 1985, detected an "involuntary hyperesthetic reflex action," and concluded that Brown was suffering from "hyperesthesia," or an abnormal sensitivity of the senses. He also observed a "bulging mass" on Brown's back, and opined that it was scar tissue remaining from the contusion caused by Brown's being struck by a falling object. As therapy for the injury, Dr. Gordon prescribed injections of steroids and anesthetics, and Brown subsequently received four such injections on an outpatient basis over a six-week period.

In Dr. Gordon's expert opinion, Brown's injury precluded any employment which predominantly involved lifting, standing, or walking. He stated that during his entire practice, he had never seen a "soft-tissue" injury like Brown's and that he knew of little data available by which to predict the course of the injury. Accordingly, he concluded that Brown's physical limitations could be permanent in nature, but he also admitted that Brown might recover and be able to resume his old job, though he did not say or could not tell when.

In addition to Dr. Gordon, other experts testified on Brown's behalf. For example, Dr. Vassiliki Toulious, a psychiatrist, testified that beginning in July 1985, he treated Brown for severe depression which he believed was the result of a post-traumatic stress disorder exacerbated by his prolonged medical treatment and inability to work. Dr. Toulious encouraged Brown to pursue the employment and rehabilitation opportunities offered by North Western. Judith Sher, a vocational rehabilitation counselor employed in the Chicago firm of Rehabilitation Management, Inc., also testified that Brown retained her in March and April of 1986, approximately 15 months after the injury, for the purpose of evaluating Brown's employment prospects. Noting that Brown earned approximately $27,000 annually before his injury, she believed that the salary of jobs which Brown could hold given his physical limitations ranged from $10,400 on the low side to $18,000 on the upper scale. Over North Western's objection, the jury was informed that according to an authenticated life-expectancy table Brown's life expectancy was 37.5 years as of the time of the trial, and that his working expectancy was 34 years.

North Western presented the testimony of Paul Swiecicki, a rehabilitation counselor employed by North Western who related that his job was to assist injured employees in returning to their previous jobs or to help them find new positions with North Western or with another employer. To this end, he interviewed Brown on June 25 and again on July 15, 1985. During the course of these Discussions, Swiecicki suggested that Brown enroll in a program at the Rehabilitation Institute of Chicago. Various other options were also considered, including the possibility of Brown's either returning to his previous job or submitting to personnel testing to obtain other employment. Swiecicki informed Brown that North Western would pay for any medical, vocational, or educational expenses Brown might incur in learning new skills. He also asserted that Brown responded favorably to these proposals, and that an appointment was set for Brown at the Rehabilitation Institute. However, Brown failed to keep this date, and his counsel subsequently contacted Swiecicki and demanded that he have no further Discussions with his client.

Prior to Swiecicki's giving this testimony, however, Brown testified on direct examination that the reason he did not pursue the rehabilitation offered by Swiecicki was that he did not trust North Western. When asked to explain his distrust, Brown answered as follows: "The reason is that in February while I was in the hospital and when I had acquired a lawyer, or an attorney, which is you, and you filed a suit, Chicago North Western answered that . . .." Before he was allowed to testify any further, North Western promptly objected and, outside the presence of the jury, argued that Brown's testimony would indicate that North Western in its answer to Brown's complaint had initially denied liability for his injuries. Counsel for Brown, on the other hand, contended that the reason Brown did not trust North Western was necessary to refute North Western's probable argument that Brown failed to mitigate his damages. The court sustained the objection on the grounds of hearsay, thus prohibiting Brown from testifying as to why he did not trust North Western. I

We first consider whether the trial court should have instructed the jury regarding Brown's duty to mitigate his damages. The record shows that North Western entreated the trial Judge to give to the jury the following instruction:

"An injured party is under a legal objection to mitigate his damages, that is, to minimize the economic loss resulting from his injury, by resuming gainful employment as soon as such can reasonably be done.

Failure of the injured party to make a reasonable effort to minimize damages does not prevent all recovery for economic loss, but it does preclude recovery for damages or losses which could have been avoided had a reasonable effort to lessen damages been made."

After brief argument, the trial Judge refused this proposed mitigation instruction without stating his grounds for so ruling.

During the instruction conference, Brown argued that the requested mitigation instruction should be rejected because it was "not I.P.I. [Illinois Pattern Jury Instructions], it's not the law in Illinois." Brown also reasoned that "[there's] no evidence in the case to justify giving [the instruction]." In addition to these two contentions, Brown raises three additional points in his brief to this court, namely, that it would be fundamentally unfair to require a mitigation instruction while simultaneously denying Brown the opportunity to explain why he did not cooperate with North Western's efforts to find him alternative employment; that the instruction should not have been given because there was no accompanying "burden of proof" instruction; and finally, in any event, the failure to give the instruction was harmless error.

Brown's argument that the mitigation instruction did not state the law in Illinois is palpably in error and therefore does not constitute a basis for denying the instruction. As noted earlier, Brown's cause of action was predicated upon a Federal statute, namely the FELA. The United States Supreme Court has stated that "[it] has long been settled that questions concerning the measure of damages in an F.E.L.A. action are Federal in character. [Citation.] This is true even if the action is brought in state court. [Citation omitted.]" (Norfolk & Western Ry. Co. v. Liepelt (1980), 444 U.S. 490, 493, 62 L. Ed. 2d 689, 693, 100 S. Ct. 755, 757.) Moreover, our supreme court, even before Liepelt, held that United States Supreme Court cases must be followed in construing Federal rights under the FELA. (Bowman v. Illinois Central R.R. Co. (1957), 11 Ill. 2d 186, 226, 142 N.E.2d 104.) Thus, it is clear that Federal law governs the determination of the issues herein. Indeed, during the instruction conference, North Western advised the trial Judge that Federal law controls in actions brought under the FELA, that Federal cases have held that an employee has the duty to mitigate damages by returning to gainful employment as soon as reasonably possible, and that therefore the requested instruction was proper. Taylor v. Denver & Rio Grande Western R.R. Co. (10th Cir. 1971), 438 F.2d 351, 354; Young v. American Export Isbrandtsen Lines, Inc. (S.D.N.Y. 1968), 291 F. Supp. 447, 450; Holladay v. Chicago, Burlington & Quincy R.R. Co. (S.D. Iowa 1966), 255 F. Supp. 879, 886-87; Alexander v. Meiji Kaium K.K. (E.D. La. 1961), 195 F. Supp. 831, 835, aff'd (5th Cir. 1962), 311 F.2d 385; see also Narusiewicz v. Burlington Northern R.R. Co. (Minn. App. 1986), 391 N.W.2d 895, 899.

As previously noted, Brown also objected to the instruction on the ground that "[there's] no evidence in the case to justify giving it." It is abundantly clear in FELA cases that "[a] party is entitled to an instruction based on his theory of the case if there is record evidence to support it." (Trejo v. Denver & Rio Grande Western R.R. Co. (10th Cir. 1977), 568 F.2d 181, 184.) Accordingly, we must determine whether record evidence supported North Western's allegation that Brown failed to mitigate his damages.

To support his contention that there was no evidence presented to support this theory, Brown asserts that North Western failed to illustrate how his damages could have been ameliorated if he had cooperated with North Western's programs, nor did it produce any evidence of available employment that Brown had the physical ability to perform. Brown further avers that the fact that he sought out his own ...


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