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05/03/89 Kenneth W. Ziekert, v. David Cox

May 3, 1989

KENNETH W. ZIEKERT, PLAINTIFF-APPELLEE

v.

DAVID COX, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

538 N.E.2d 751, 182 Ill. App. 3d 926, 131 Ill. Dec. 376 1989.IL.658

Appeal from the Circuit Court of Cook County; the Hon. Charles J. Durham, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE FREEMAN delivered the opinion of the court. WHITE and CERDA, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Plaintiff, Kenneth Ziekert, sued defendant, David Cox, for personal injuries sustained when defendant's automobile rear-ended plaintiff's automobile on the Kennedy expressway. At the close of all the evidence, the trial court granted plaintiff directed verdicts finding that he had not been contributorily negligent and that defendant had been negligent, as a matter of law. Thereafter, the jury awarded plaintiff $96,500 in damages. Defendant appeals.

At trial, plaintiff testified that he left his office in downtown Chicago at approximately 5:30 p.m. on December 2, 1977, a weekday, and drove to the Kennedy expressway, which he normally travelled on his way home. When plaintiff exited the westbound express lanes, traffic came to a stop at the intersection of the Kennedy and Edens expressways. Plaintiff "came to a stop because of traffic stopping up ahead." Plaintiff described his stop as "gradual" and "complete." After stopping his vehicle, plaintiff reached to turn the volume on his radio down. While so doing, plaintiff's vehicle was struck from behind. Plaintiff was "violently thrown backwards" in his seat, felt as if he "was going backward over the . . . front seat" and "was immediately disoriented" for about a minute or two. After the collision, defendant told plaintiff that he had been "looking over his shoulder to learn if traffic was clear so he could pass" plaintiff's stopped vehicle.

Plaintiff's expert witness, Dr. John Shea, a neurosurgeon, testified through an evidence deposition. Dr. Shea reviewed the records of plaintiff's treatment for health problems he experienced after the accident. Those records consisted of plaintiff's treatment at the emergency room of Sherman Hospital in Elgin, Illinois, and records of Drs. Lea, Mansfield and Campbell, the latter of the Mayo Clinic in Rochester, Minnesota. He also reviewed the records of plaintiff's examination by Dr. William Grimm, a neuropsychologist to whom Dr. Shea referred plaintiff, and the records of plaintiff's ophthalmological examination. Dr. Shea stated that these are the types of records normally relied upon by experts in the field. Dr. Shea also examined plaintiff in October 1987. Dr. Shea testified extensively regarding, inter alia, the causes and symptoms of traumatic brain injury in general and pseudotumor cerebri in particular, as well as the methods of diagnosis of the latter. After reviewing the plaintiff's medical records, Dr. Shea stated his opinion, based on a reasonable degree of medical and neurological certainty, that plaintiff had a pseudotumor cerebri which was caused by a traumatic occlusion or blockage of the right sinus. Finally, Dr. Shea testified that after examining plaintiff and reviewing the report of Dr. Grimm, it was his opinion that plaintiff's pseudotumor cerebri was proximately caused by the accident with defendant.

Over defendant's objection based on plaintiff's failure to disclose his identity until the day before the trial started, the trial court allowed Dr. Grimm to testify for plaintiff. Dr. Grimm conducted a mental status examination of plaintiff to determine his orientation and performed a series of tests on plaintiff to determine whether he had any cognitive difficulties. As a result of his examination and tests, Dr. Grimm determined that plaintiff exhibited mild difficulties in concentration and spatial perception. He also concluded that plaintiff was experiencing an enhanced sense of stress and anxiety since his accident. At the end of his examination, Dr. Grimm recommended to plaintiff "learning a new set of skills" to help him deal with daily stresses more effectively.

Defendant testified that the accident with plaintiff occurred on the Kennedy expressway beyond both the merger of the express and local lanes and the separation of the Kennedy and Edens expressways. It occurred at about 8 p.m. when it was dark and the traffic was heavy but was the "usual rush hour traffic." At that time, defendant "went to change lanes." In so doing, he turned on his turn signal, looked into his rearview mirror and turned his head over his right shoulder to check his blind spot. By the time he looked forward again, defendant saw two brakelights on, realized that traffic was stopped ahead of him, and collided into the rear of plaintiff's car.

For defendant, Dr. James Mansfield, a neurosurgeon who treated plaintiff in 1981 and the first to diagnose plaintiff's condition as a pseudotumor cerebri, testified that the collision did not cause plaintiff's condition. Defendant's expert, Dr. Marshall Matz, also a neurosurgeon, agreed with Dr. Campbell's Conclusion that the cause of plaintiff's sinus occlusion, which, in turn, caused the pseudotumor, was unknown. However, Dr. Matz did state that the collision with defendant did not cause plaintiff to develop the sinus occlusion.

Opinion

On appeal, defendant first contends the trial court erred in denying him a judgment n.o.v. because plaintiff failed to prove that defendant proximately caused his injuries. Defendant asserts that Dr. Shea's testimony that plaintiff's pseudotumor cerebri was caused by the collision was outweighed by that of Drs. Mansfield and Matz.

A judgment n.o.v. is proper only where all the evidence, when viewed in its aspect most favorable to the nonmovant, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. Pedrick v. Peoria & ...


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