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04/20/89 Delores Beddla, v. Tracy Wilkins

April 20, 1989

DELORES BEDDLA, PLAINTIFF-APPELLANT

v.

TRACY WILKINS, DEFENDANT-APPELLEE



Before we address the merits of this appeal, we call to the attention of counsel for the plaintiff that plaintiff's brief is in violation of Supreme Court Rule 341(e)(4)(ii) (122 Ill. 2d R. 341(e)(4)(ii)) in that the brief does not contain the jurisdictional statement required by that supreme court rule in all appellants' briefs filed August 1, 1988, and thereafter. Given the fact that plaintiff's brief in this case was filed August 3, 1988, and that the requirement of a jurisdictional statement is a relatively new one and that our jurisdiction of this case is clear and not disputed, we do not elect to dismiss the appeal. However, we caution all appellate counsel that future such violations will be dealt with appropriately.

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

537 N.E.2d 1092, 181 Ill. App. 3d 833, 130 Ill. Dec. 763 1989.IL.575

Appeal from the Circuit Court of Lake County; the Hon. Richard DeMoss, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. UNVERZAGT, P.J., and NASH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

Following an automobile accident, plaintiff, Delores Beddla, filed a one-count complaint alleging negligence against the defendant, Tracy Wilkins. At trial, following the completion of the plaintiff's case, the trial court directed a verdict in favor of the plaintiff on the issue of whether the defendant had exercised reasonable care in operating her vehicle. The jury then returned a verdict in favor of the defendant on the issue of damages. Plaintiff appeals, raising the following issues: (1) whether the jury's verdict is contrary to the manifest weight of the evidence; (2) whether the trial court erred in the giving and/or the refusal to give certain jury instructions; and (3) whether the trial court erred in refusing to allow the testimony of one of plaintiff's witnesses.

The facts surrounding the accident are not in dispute. On May 12, 1986, plaintiff's vehicle was stopped at a red light. The vehicle behind plaintiff was also stopped for the red light. A vehicle driven by defendant struck the vehicle behind plaintiff's vehicle which, in turn, was pushed into plaintiff's vehicle. Immediately prior to the collision, defendant testified that she had been traveling at the posted speed limit, which was 35 miles per hour, or below it. When she noticed the car in front of her had stopped, she applied her brakes and downshifted. According to the defendant, the impact between her vehicle and the vehicle in front of her was very light. Kathryn D'Andrew, a passenger in the middle vehicle, described the impact between the vehicle she was in and plaintiff's vehicle as very light.

Plaintiff testified that she was wearing a seat belt at the time of the impact. Upon impact, she was thrown into the seat belt, and her right shoulder twisted in the seat belt, brushing against the steering wheel. After a minute or two, she felt that something had happened to her right side. She got out of her vehicle and started to walk over to a policeman on the scene; her shoulder began to throb. She told the police officer that something had happened to her shoulder. She was taken from the scene of the accident by ambulance to Condell Hospital, where she was examined by a doctor in the emergency room, and X rays were taken. The doctor advised her that he did not see any new injury on the X ray of her shoulder, but he prescribed a mild pain medication and advised her to see her own physician. According to plaintiff, as a result of the accident on May 12, 1986, her right hand is numb, and she has an aching pain in her right shoulder and arm. Due to these conditions, she is unable to work and also is severely limited in her ability to perform even basic household tasks.

Much testimony was introduced regarding previous injuries suffered by the plaintiff. Plaintiff, as well as several of her doctors, testified about a series of prior injuries to the plaintiff's neck, back, shoulder, and right arm. Plaintiff testified that she had always had problems with her neck due to a fall down stairs in which she hit the back of her neck. The problem with her neck had never kept her from working. In 1983, she injured her right arm, neck, and shoulder while lifting chairs as part of her job as a school custodian. She did seek medical treatment for these injuries and was told not to lift anymore. She had pain in her neck, shoulder, and arm which she recalled did not last, as she did not take off any time from work for it. Plaintiff admitted that in 1983, she reported to Dr. Baehr, who was treating her, that she had had chronic neck and shoulder pain for years. At that time, she was also treated by a chiropractor.

Plaintiff testified further that on May 25, 1985, she was involved in an automobile accident in which she severely injured her shoulder. Her shoulder was completely dislocated, and she underwent surgery. She spent 18 days in the hospital. She was treated by her family physician, Dr. Bellucci, and by Dr. Baehr. Although Dr. Bellucci told her she should not return to work, plaintiff believed that he was "kidding" her. As recently as February 1987, plaintiff was having glass removed from her arm that was imbedded there as a result of the May 1985 accident, and some glass still remained in her arm.

According to plaintiff, she last saw Dr. Baehr in August 1985, at which time he released her from his care, telling her she could return to work but not as a school bus driver or a custodian due to the lack of strength in her arm.

Plaintiff admitted that her shoulder was not completely pain free following the 1985 accident. She did not recall seeing Dr. Baehr in January 1986, complaining of shoulder pain. She did see Dr. Peter Chhabria, a neurologist, and agreed to have neurological tests performed on her shoulder and arm four months prior to the May 1986 accident due to her complaints of pain.

Plaintiff did not recall telling Dr. Bellucci in December 1985 that her right arm was constantly numb. She acknowledged, however, that if his records showed such a complaint, she would not disagree with his record. She did recall telling Dr. Bellucci in January 1986 that her right arm ached and was numb. Plaintiff did not recall telling Dr. Bellucci that she had a hard time driving, nor did she recall telling him on February 7, 1986, that the numbness was constant in her right arm. Finally, plaintiff did not recall telling Dr. Bellucci on May 7, 1986, five days prior to the instant accident that she was still suffering pain in her left shoulder.

Plaintiff further acknowledged that Dr. Bellucci had helped her obtain a handicapped parking sticker in January 1986. She stated, however, she only used it for parking when it was very cold. She denied having any problems with driving because of her arm.

Dr. James Baehr, a board-certified orthopedic surgeon, testified on behalf of plaintiff as follows. He is a board-certified orthopedic surgeon. Plaintiff was referred to him in June 1985 by her family doctor, Dr. Bellucci; she had been treated by Dr. Baehr previously. Plaintiff had been in an automobile accident and had dislocated the acromioclavicular joint (the attachment of the collar bone onto the shoulder blade). The injury was of the most serious grade. Dr. Baehr performed surgery on plaintiff's right shoulder and continued to see her for follow-up visits until she was released from his care in August 1985. At that time, Dr. Baehr was of the opinion that plaintiff was doing well, but he advised her not to return to work as a bus driver or a janitor but to seek a different type of work that would not require heavy use of her shoulder.

According to Dr. Baehr, his records indicated that in January 1986, plaintiff complained of pain in her shoulder, numbness around the shoulder and in her arm and hand. Dr. Baehr also noted diminished reflexes in both arms. Dr. Baehr did not see any reason for the increased pain in her shoulder, and therefore, he referred her to Dr. Peter Chhabria, a neurologist.

Dr. Baehr testified further that on May 13, 1986, plaintiff was seeing his partner, Dr. Thomas Baier, as a result of an automobile accident on May 12, 1986. New X rays did not show any change. Dr. Baier's diagnosis was that plaintiff had suffered a contused right shoulder. Dr. Baehr continued to see plaintiff. Although her pain was better, she had intermittent weakness but that had preceded even her original accident. It was Dr. Baehr's opinion that plaintiff was suffering from post-traumatic degenerative arthritis of the right acromioclavicular joint aggravated by the automobile accident of May 12, 1986. It was further Dr. Baehr's opinion that the aggravation was permanent and that plaintiff could not be gainfully employed due to the weakness and pain in her arm when she tried to use it for anything strenuous.

On cross-examination, Dr. Baehr testified that in January 1986, he suspected that plaintiff had a pinched nerve in her neck and cervical spondylosis, i.e., arthritis in the neck. Dr. Baehr acknowledged that plaintiff had complained of chronic neck and shoulder pain as far back as 1983, which likely meant she had degenerative arthritis as far back as 1983. Dr. Baehr also acknowledged that plaintiff's complaints were very similar when he saw her on January 13, 1986, as they were on May 13, 1986, the day after a second automobile accident. As of August 1986, Dr. Baehr suspected a psychological element to plaintiff's complaints. Apart ...


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