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10/29/87 Delores Kokotkwiecz, v. Leprino Foods Company

October 29, 1987





515 N.E.2d 395, 162 Ill. App. 3d 493, 113 Ill. Dec. 586 1987.IL.1604

Appeal from the Circuit Court of Champaign County; the Hon. John G. Townsend, Judge, presiding.


JUSTICE LUND delivered the opinion of the court. GREEN and KNECHT, JJ., concur.


Plaintiff, Delores Kokotkwiecz, filed a personal injury action against defendant, Leprino Foods Company, alleging negligence. Plaintiff claimed that a semitruck and trailer, owned and operated by defendant, "brushed" against her causing her to lose her balance. As she was falling, her husband reached out to her, jerking her upright. The motion allegedly aggravated a pre-existing back injury, causing her serious pain, eventual surgery, and permanent physical disability. After a trial, the jury rendered a verdict in favor of defendant. The circuit court of Champaign County entered judgment on the verdict. Plaintiff appeals. We affirm.

On July 6, 1982, plaintiff and her husband went together to the CarleCare Clinic in Urbana for her husband's appointment with a dermatologist. As they left the clinic, they crossed a nearby street at an intersection and proceeded down another street on the way to their car. A short distance from the intersection, an 18-wheel semitruck and trailer, owned by defendant, passed plaintiff and proceeded several feet before stopping. The driver, an employee of defendant, stopped to eat lunch at a nearby restaurant. Plaintiff claims the trailer portion of the truck brushed against her. Her husband, walking beside her, grabbed her to prevent her from falling. The motion of pulling her upright caused her to aggravate a previous back injury. She was not immediately hospitalized, but reported to her doctor several months after sustaining the injury. She eventually required surgery for a herniated disc and is permanently, partially disabled.

Defendant denies liability. The facts are in dispute as to whether the trailer actually struck plaintiff or merely startled her. We need not dwell on this dispute, however, as the alleged errors relate to the medical testimony and the conduct of the trial. Plaintiff argues the following errors occurred at trial: (1) the trial court erred in allowing a medical expert, consulted on behalf of defendant but called at trial on behalf of plaintiff, to view additional medical records at trial, and to vary his medical opinion from that given in a discovery deposition; (2) defense counsel improperly suggested in closing argument that plaintiff's medical expert should not be believed because his testimony was through a videotape and not in person; (3) the trial court erred in allowing defendant to cross-examine plaintiff as to workers' compensation action stemming from her 1976 injury; and (4) the trial court erred in preventing plaintiff from introducing a letter from defendant to plaintiff apologizing for her misfortune. In order to discuss the first issue, we must first explain some of the pretrial discovery proceedings.

Prior to trial, defendant contacted Dr. Donald Ross, a specialist in orthopedics, and asked him to examine plaintiff. After the examination, plaintiff deposed Dr. Ross for discovery purposes. Plaintiff's attorney and Dr. Ross engaged in the following colloquy during the deposition:

"Q. Okay. Now, when you talked about this accident she described to you, this was the accident that she related near Carle Clinic?

A. Is that the accident you're asking me about?

Q. Yeah. As you feel was causal relationship.

A. That's the one I feel is causal relationship.

Q. Okay. And you indicated that the injury -- her pre-existing condition was aggravated, is that true?

A. That's true.

Q. And could you tell me exactly what pre-existing condition you felt was exaggerated as a result of this occurrence?

A. I felt she had a back sprain an [ sic ] a possible ruptured disc as early as 1976, when she had her prior accident."

In elaborating on the doctor's opinion about the injury from 1976, the following Discussion occurred:

"Q. You felt that it might be true that Delores Kokotkwiecz had a ruptured disc as a result of her 1976 occurrence?

A. I felt that she did.

Q. She did or she might?

A. Well, I felt that she did.

Q. What did you base that on?

A. Well, the history that she related to me.

Q. Okay. What exactly about that history that led you to believe that she had a ruptured disc arising out of the 1976 occurrence?

A. Well, the fact that she complained of right leg sciatic pain at that time, that she was in the hospital at that time, and that she was under another doctor's care for a six month period and, then, stated that her symptoms gradually subsided, which would make me feel, based on the history alone, that she had a significant injury at that time.

Q. Yeah. But, in particular, what about those three things that leads you to the opinion that it was a ruptured disc?

A. Well, the fact that she had a right leg sciatica related to the backache and had an injury that might have or could ...

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