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05/04/89 Larry Scheibel, v. Rick Groeteka

May 4, 1989





538 N.E.2d 1236, 183 Ill. App. 3d 120, 131 Ill. Dec. 680 1989.IL.664

Appeal from the Circuit Court of St. Clair County; the Hon. Sheila O'Brien, Judge, presiding.


JUSTICE GOLDENHERSH delivered the opinion of the court. HARRISON and HOWERTON, JJ., concur.


Defendant, Rick Groeteka, appeals from a jury verdict entered in the circuit court of St. Clair County against defendant and in favor of plaintiff, Larry Scheibel, for $100,000 reduced by 50% for plaintiff's negligence, for a total of $50,000, for damages occasioned by alleged negligence in a car accident. This court affirms.

On December 9, 1980, plaintiff filed this action seeking $6,248.68 plus court costs. On March 9, 1981, plaintiff filed an amended complaint against defendant seeking no more than $50,000. On July 20, 1981, defendant filed his answer. On March 19, 1985, the case was voluntarily dismissed after opening statements, but prior to any witnesses being called. On April 18, 1985, plaintiff refiled the lawsuit against defendant. On July 14, 1986, defendant moved to amend his answer to plaintiff's amended complaint. On July 24, 1986, the trial court granted defendant's motion to amend. On September 17, 1986, plaintiff filed an amended complaint seeking $121.73 for property damage to plaintiff's vehicle. Later, plaintiff voluntarily dismissed this count.

The trial started on September 17, 1986, and was completed on September 19, 1986. On September 17, 1986, prior to trial, plaintiff moved to bar defendant's expert witness, Dr. Simon Hornstein, from testifying. The trial court found that plaintiff's interrogatories requesting a disclosure of experts under Supreme Court Rule 220 (107 Ill. 2d R. 220) had been answered by defendant with proof of service on August 19, 1986, and disclosed no experts. Further, at the time of voir dire of the jury, defendant did not disclose Dr. Hornstein as a witness expected to testify at trial. Plaintiff's motion to bar expert witness, Simon Hornstein, was granted.

On September 19, 1986, the trial court also barred defendant from introducing the testimony of F.J. Accardio because defendant did not disclose him as a witness expected to testify at trial at the time of jury voir dire. Counsel for defendant then made an offer of proof. Had Accardio been allowed to testify, he would have stated that he had examined defendant's vehicle in May 1980 and had found no damage to defendant's vehicle nor any evidence of repairs.

After opening statements were made by parties, defendant moved for a mistrial based upon plaintiff's counsel's statement that plaintiff was working only because of his poor financial condition. The trial court denied defendant's motion for a mistrial. On September 18, 1986, plaintiff called his first witness, the defendant, pursuant to section 2-1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1102). Defendant testified that on the date of the accident, February 20, 1980, he was 20 years old and lived with his parents. Defendant owned a black Ford pickup truck which he had purchased in 1978. The truck had a black roll bar in the bed and a brush bar on the front grill. According to defendant, there were decals on the front, back, and sides of the truck which had been put on at the factory. On the back of the truck there was a "Ford" emblem, orange in color, which measured 6 inches by 4 1/2 feet. Defendant stated that he had several license plates on the truck and could not remember the plate number which was on the truck on February 20, 1980.

Defendant denies any involvement in a collision on Shiloh Road at the Route 50 intersection on February 20, 1980, or knowing plaintiff prior to the filing of this lawsuit. Defendant testified that on February 20, 1980, he had arrived at the home he shared with his parents at approximately 6:30 or 7 a.m. after working from 8 p.m. to 6 a.m. He took a shower, ate breakfast, and then went to bed between 8:30 and 9 a.m. He woke up at approximately noon when his fiancee came by for lunch. He stated that his fiancee stayed approximately 45 minutes to one hour. He then went back to sleep on the couch. He testified that the truck was not there when his girlfriend came because his mother had taken it. Defendant did not check to see if his truck was in the driveway. His knowledge that the truck was gone was based upon his mother's telling him she had borrowed the truck and his fiancee's statement that his truck was not in the driveway.

Plaintiff was the next witness called to testify. Plaintiff testified that on February 20, 1980, he was living on Little Oak School Road just northeast of O'Fallon. On that day, plaintiff left his home around noon to bid on a fencing job. Plaintiff had his own fencing company at this time. Plaintiff was in his 1975 Chevrolet pickup truck, which was in good mechanical condition. At the intersection of Little Oak School Road and Scott-Troy Road, not far from plaintiff's home, plaintiff saw a black Ford pickup truck with a roll bar stopped and throwing garbage out into a ditch. There were two occupants in the truck, both white males with small to medium builds. One was in the back throwing garbage out. When they saw plaintiff, they got in their truck and left. Plaintiff was following behind the truck and was able to get the license plate number. Plaintiff wrote down the number on an envelope which had been lying in the seat next to him. Initially, plaintiff planned to give the license plate number to the sheriff's office and let them take care of it. He then followed the truck toward Highway 50. Plaintiff testified he was not in pursuit of the truck, as he was on his way to a bid and the truck was going the same direction. When the black Ford pickup truck got to Highway 50, it made a right turn and headed toward O'Fallon, which was the same direction plaintiff had to go. Plaintiff then followed the black truck on Highway 50 to the Shiloh Road intersection where both vehicles had to stop because of a stop sign. The black Ford was going to turn left. There was no oncoming traffic so plaintiff decided to pull around the black vehicle and make the driver pull over. Plaintiff wanted to tell the occupants of the truck that if they picked up the garbage, he would not call the sheriff's office and turn over the license plate number. As both vehicles turned left onto Shiloh Road, plaintiff testified that he turned his flashers on and pulled up alongside the black Ford. Plaintiff also testified that he honked his horn. The driver looked over and plaintiff motioned for the black truck to pull over. Plaintiff estimated both vehicles were traveling at approximately 10 miles per hour. Plaintiff then pulled around the front of the black Ford, physically turned his body around to look back at the black truck and at the same time eased up on the gas. The black truck was directly behind plaintiff and collided with him in the right lane of traffic. The force shoved plaintiff forward. The black truck went into the ditch, kept on moving, went around plaintiff, and drove toward Shiloh.

On cross-examination, plaintiff testified that he was not sure whether his brake lights or his blinkers were on when he pulled ahead of the black truck. Plaintiff did not get a close look at the two people in the truck. Plaintiff does not know their hair color or if they were wearing hats. Further, plaintiff could not positively identify defendant as the driver of the black Ford.

After impact, plaintiff got out of his truck to look for damage. The only thing plaintiff saw was a cracked windshield. Over defendant's objection, plaintiff testified that in his opinion the driver of the black truck had the opportunity to stop his vehicle and avoid the impact.

Immediately after the collision, plaintiff's back bothered him slightly, but he continued on to his destination. Plaintiff did stop and call the sheriff's office to make a report over the phone. Later, a deputy sheriff came out and took a full statement. The sheriff's department did not locate a black Ford truck with the license plate number plaintiff had given them, being 444 023B. Plaintiff went home and lay down because his back and neck were irritating him.

The next day, plaintiff woke up and his back and neck pains were worse. Plaintiff went to Memorial Hospital in Belleville, where he was treated and released. Plaintiff was told to consult with his family physician. One or two days later, plaintiff went to his family doctor, Dr. Efren Naguit, who prescribed muscle relaxers, pain pills, and physical therapy at the hospital. Dr. Naguit treated plaintiff until the fall of 1980 when he sought other treatment because, according to plaintiff, he was not satisfied with the treatment by Dr. Naguit.

In 1981, plaintiff consulted with several other doctors concerning his back injury. Plaintiff testified he had been treated by Dr. Schultz in December 1981 and continued to seek treatment with Dr. Schultz through the date of trial. Plaintiff was also treated by Dr. Herbert Dexheimer from 1981 through trial. Plaintiff found the treatment of both Drs. Schultz and Dexheimer to be of little help in relieving back pain. As part of Dr. Schultz' treatment, plaintiff went through a series of epidural blocks in 1984. Plaintiff also sought treatment with Dr. Arabinda Das from approximately August 1981 through the time of trial. Plaintiff did not tell Dr. Das that he had been a patient of Dr. Naguit. Plaintiff did not tell Dr. Das about Dr. Naguit because he had been referred to Dr. Das by Dr. Dexheimer. Dr. Das performed acupuncture on plaintiff. Additionally, plaintiff was hospitalized in December 1981 by Dr. Das. Dr. Dexheimer also consulted on plaintiff's hospitalization. Plaintiff testified that the acupuncture relieved pain only temporarily. As soon as plaintiff went out in the cold air or lifted something, he was in as much pain as prior to the acupuncture treatment. Plaintiff found his back pain to be more intense during cold weather.

Plaintiff testified that he purchased all medications prescribed for him by his treating doctors from 1980 through the trial. Plaintiff believes his back condition is deteriorating. He can no longer work as a carpenter because of the pain he experiences.

There are many ambiguities in plaintiff's testimony concerning his employment from the years 1977 through trial. The following is what could be adduced by this court concerning plaintiff's employment history. Plaintiff is now employed as a laborer. Over defendant's objection, plaintiff was allowed to testify that the only reason he is working is because he has no other way to support himself and his family. Plaintiff's friend is a business agent and he put plaintiff on a job that does not require as much physical labor. Before plaintiff was a laborer, he worked for St. Clair County from August 1984 through January 1986 as an instructor for the weatherization program. In either 1977 or 1979, defendant started a fencing business in which he constructed both chain link and wooden fences. This business terminated in August 1983, because plaintiff's back hurt and he was unable to do the construction work.

On cross-examination, plaintiff testified that he filed a lawsuit against Chevron Chemical and K mart as a result of exposure to toxic fumes in February 1982. The case is pending in Federal court. In the Chevron suit, plaintiff seeks past and future earnings which he has lost and will lose by virtue of his exposure to toxic chemicals.

Earl Hartman was the next to testify for plaintiff. Hartman investigated the auto accident in which plaintiff was involved. Hartman did his investigation in March 1980, starting with a license plate number (444 023B) which had been furnished by plaintiff. Hartman located the pickup truck at defendant's residence. Both the license plate number and the description of the truck furnished by plaintiff matched defendant's vehicle. Defendant admitted to Hartman that it was his truck. Using his report to refresh his memory, Hartman stated that he could not find any real damage to defendant's truck.

Next, plaintiff's wife, Barbara Scheibel, testified that when plaintiff arrived home after the collision, he had pain in his back and neck which kept getting worse. The first few months after the collision, he was in a lot of pain. Plaintiff could not sit for long periods of time, nor could he sleep through the entire night. The treatments plaintiff received would give him temporary relief, but the pain would then crop up as severe as ever. The epidural blocks he had received seemed to reduce the pain for a few weeks at a time. Plaintiff's wife testified that plaintiff had become difficult to live with after the collision. Generally, plaintiff comes home from work, takes a shower and does not want to eat dinner. He then goes to bed early, and it takes him a long time to get moving in the morning because of the pain. Additionally, plaintiff and his wife do not often go out because of plaintiff's pain.

The evidentiary deposition of Dr. Efren Naguit was read into evidence. Dr. Naguit is plaintiff's family physician. Dr. Naguit examined and treated plaintiff on February 26, 1980, for neck and low back pain. At that time, plaintiff told Dr. Naguit that he had been in a car accident on February 20, 1980, a rear-end hit and run. Dr. Naguit's diagnosis was that plaintiff suffered from acute low back strain as a result of the injury he suffered from the February 20, 1980, car accident. At this time, Dr. Naguit also reviewed the X rays taken at Memorial Hospital on February 20, 1980. The X rays of plaintiff's neck were normal in Naguit's opinion. The X rays of the lower back were normal, except for degenerative changes (arthritis) which, according to Dr. Naguit, had to exist before February 20, 1980. On plaintiff's first visit to Dr. Naguit, treatment consisted of a muscle relaxant shot and a prescription for muscle relaxant pills to be taken four times per day. In addition, Dr. Naguit told plaintiff to go to physical therapy for his lumbar spine three times per week. Dr. Naguit believed plaintiff could work at this time.

On March 4, 1980, Dr. Naguit again saw plaintiff. Plaintiff complained of even worse pain. Dr. Naguit's examination of plaintiff on this date showed acute low back strain as well as cervical strain. Dr. Naguit believed that plaintiff's back and neck pain were a result of the car accident on February 20, 1980. Dr. Naguit's treatment on this date was the same treatment he administered on February 20, 1980. Plaintiff continued to seek treatment with Dr. Naguit during March and April 1980.

On May 6, 1980, Dr. Naguit found plaintiff's acute low back strain much improved. Plaintiff told Dr. Naguit he was much better and wanted to go back to work. Plaintiff was told by Dr. Naguit to discontinue physical therapy on a regular basis and go to physical therapy only when plaintiff's back began to hurt. No muscle relaxant shot was administered, but Dr. Naguit told plaintiff to continue to take his muscle relaxant pills four times per day and return in two weeks.

On May 17, 1980, Dr. Naguit examined plaintiff and found him to have a full range of motion over the lumbar spine area. According to Dr. Naguit, plaintiff told him his back felt great. It was Dr. Naguit's opinion that plaintiff had completely recovered from the February 20, 1980, car accident and that plaintiff could return to work on May 19, 1980.

Dr. Arabinda Das was the next witness to testify for plaintiff. Dr. Das testified that he saw plaintiff for the first time on August 10, 1981. Plaintiff was complaining of back and neck pain and said he had such pain since February 1980, when he was rear-ended in an auto accident. Dr. Das gave plaintiff a physical examination in which he found plaintiff's neck movements to be normal but tenderness on the muscles at the back of plaintiff's neck as well as tenderness of the dorsal and lumbar spine. Dr. Das' diagnosis was "back sprain, post traumatic, severe cervical sprain and neck arm syndrome. Also has neck headache syndrome . . . And dorsal sprain. Lumbar sprain. With right sciatica." Dr. Das' opinion was that plaintiff's whole back was sprained. As treatment, Dr. Das performed acupuncture, prescribed Darvon, Valium, and arnica, an herbal medicine. Dr. Das knew that plaintiff was doing construction work and placed no limitation on plaintiff.

Plaintiff continued the same treatment with Dr. Das until April 13, 1982, when Dr. Das prescribed XanaX. The XanaX was soon stopped because it did not help. Plaintiff would feel better on some days and worse on others. On July 20, 1982, plaintiff was complaining of problems with his back as severe as ever and pain from the top of his neck to his lower back. At this time, Dr. Das discontinued the Darvon prescription and substituted Tylox. On August 16, 1982, Dr. Das began prescribing Empirin Compound Number 4, four times per day. On September 13, 1982, plaintiff complained to Dr. Das that his hands were "sleeping." Additionally, plaintiff complained that the upper part of his body (trunk) and legs were hurting. Plaintiff demanded acupuncture on September 13, 1982.

The same type of treatment continued through the fall of 1982. On November 8, 1982, plaintiff complained to Dr. Das that the pain all over his back and his right arm was getting ten times worse. Plaintiff told Dr. Das that the cold air in the winter made his condition worse. On December 16, 1982, plaintiff complained of involuntary movement of his muscles for which Dr. Das prescribed 50 milligrams of Talwin, of which 30 milligrams were administered intramuscularly. From December 17, 1982, through December 22, 1982, plaintiff was hospitalized for back pain by Dr. Das. Dr. Dexheimer consulted with Dr. Das on the admission of plaintiff. Dr. Das called in two doctors to examine plaintiff: Dr. Edward Rose, a rheumatologist; and Dr. Ronald Welch, a neurologist. Dr. Rose submitted a report of his findings to Dr. Das. Dr. Rose believed that plaintiff suffered from a limitation of the spinal flexion. Normally, the spinal column is flexed to 180 degrees while one is bending down, but plaintiff could only flex up to 45 degrees. Dr. Rose prescribed phenylbutazone to reduce pain and Flexaril to decrease muscle spasms. After plaintiff's release from the hospital, Dr. Das next saw plaintiff on December 28, 1982. Plaintiff stated that the pain had been reduced because of the prescribed muscle relaxers and pain medication. However, by January 13, 1983, plaintiff was no longer receiving phenylbutazone because it is a toxic medicine whose side effects are both common and dangerous. Throughout January and February 1983, plaintiff complained of back pain. In Dr. Das' opinion, plaintiff's complaints are consistent with plaintiff's injury from the February 20, 1980, car accident. After February 1983, Dr. Das saw plaintiff only sporadically. Dr. Das did not see plaintiff at all during 1984. At his 1985 visits to Dr. Das, plaintiff's complaints were the same, and Dr. Das found no change in plaintiff's condition. Dr. Das last saw plaintiff on May 24, 1986, and told him to return in 25 days, but plaintiff had not returned through the time of trial. Dr. Das' total charges for treatment for plaintiff's back injury were $2,130.

Despite treatment, plaintiff's condition had not improved according to Dr. Das. In Dr. Das' opinion, plaintiff's prognosis remains poor.

During cross-examination, Dr. Das agreed that his specialty is psychiatry, for which he is board-certified. Dr. Das also admitted that he was not aware that Dr. Naguit had treated plaintiff immediately after the February 20, 1980, accident.

In 1982, according to Dr. Das, plaintiff fell and sustained a fractured ninth rib on the left side. During January 1982, plaintiff did not complain of back pain, but rather pain related to his broken rib. In February 1982, Dr. Das treated plaintiff for inhalation of toxic fumes. Dr. Das agreed that plaintiff's treatment from February 1982, through June 1982, was for exposure to toxic fumes rather than back problems. Dr. Das agreed that the toxic fumes could contribute to some of plaintiff's complaints of a muscular skeletal nature.

At the close of plaintiff's case, defendant moved for a directed verdict which the trial court denied. Defendant then took the stand.

Defendant testified that he had never been on Shiloh Road and was not there on February 20, 1980, throwing out trash. Defendant testified that he had seen a truck in Collinsville that looked similar to his around February 1980. On cross-examination, defendant could not produce the license plate number on this other truck. Defendant first heard of the alleged accident in which plaintiff was involved when Mr. Hartman came out to look at defendant's truck.

Patricia Gumm, mother of defendant, was the next witness. She testified that her son lived with her in February 1980. On February 20, 1980, defendant got home from work between 6 and 6:30 a.m. Defendant's mother took defendant's truck at about 8:30 a.m. to return a Roto-Rooter. After she returned the Roto-Rooter, she stopped at various other locations. On direct examination, she testified she returned home at 11 a.m. to deliver groceries. She left again and did not return until noon. She testified that she left again in defendant's truck and did not return until 1:30 p.m. On cross-examination, however, defendant's mother testified that she returned home at noon as her son's fiancee arrived for lunch. On cross-examination, defendant's mother admitted she did not drive the truck after noon. However, she said her son's keys remained in her possession until 2:30 p.m. when she left for work. At that time, she took her own automobile to work. Mrs. Gumm testified that to her knowledge there was not a "Ford" emblem in large letters on the back of her son's truck. She did discuss orange-colored designs on the sides of the truck.

Defendant's wife, his fiancee on February 20, 1980, Valerie Groeteka, was the next witness to testify. She testified that during February 1980, she would go over on her lunch hour to visit defendant. She worked Tuesday through Saturday and her lunches were from noon to 1 p.m. She generally stayed at defendant's home approximately one-half hour. Valerie Groeteka agreed that she sometimes went to lunch from 11 a.m. until noon; however, she stated that that was only on rare occasions. From Mrs. Groeteka's testimony, it is clear she does not remember exactly what she did on February 20, 1980. She was testifying as to her normal habits during the month of February 1980.

Finally, Michele Moore, a physical therapist at Memorial Hospital, was unavailable to testify, but her deposition was read into evidence. Michele Moore saw plaintiff on February 11, 1981. At that time, plaintiff complained that there was a tightness and pulling sensation in the muscles in his lower back. Plaintiff told Michele Moore that this pain started after he worked on some frozen water pipes in December 1980. Plaintiff also told Ms. Moore that he had no pain at all throughout the summer. In addition, plaintiff complained of pain in his right leg, but stated that it was a long-standing problem, as a plastic artery had been inserted in his right leg in 1979.

On cross-examination, Ms. Moore agreed that plaintiff had not told her that he physically twisted his back while working on the frozen pipes, but rather after he did this work, he felt a pulling sensation. Ms. Moore agreed that she was not sure how plaintiff injured his back. Plaintiff did not tell her that he had been injured in an automobile accident.

Defendant's first issue on appeal is whether the trial court erred in permitting plaintiff to testify that in his opinion the truck which struck him had sufficient distance in which to stop before striking the rear of plaintiff's vehicle. Defendant specifically argues that the question asked of plaintiff called for a conclusory answer on the ultimate issue of negligence, and, further, there was no reason why plaintiff could not adequately communicate to the jury the facts upon which his opinion was based. Therefore, according to defendant, the opinion testimony expressed by plaintiff was superfluous and its admission constituted reversible error.

The general rule is that to be admissible, opinion testimony must be of assistance to the trier of fact. (Freeding-Skokie Roll-Off Service, Inc. v. Hamilton (1985), 108 Ill. 2d 217, 483 N.E.2d 524.) Illinois courts rely on Rule 701 of the Federal Rules of Evidence in considering the admissibility of opinion testimony. Rule 701 provides:

"If the witness is not testifying as an expert, witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of witness' ...

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