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April 12, 1994


Appeal from the Circuit Court of Cook County. Honorable Robert V. Boharic, Judge Presiding.

Released for Publication June 7, 1994. Petition for Leave to Appeal Denied October 6, 1994.

DiVito, Hartman, Scariano

The opinion of the court was delivered by: Divito

Presiding Justice DiVito delivered the opinion of the court:

Plaintiff Kathleen Marchese brought suit against defendant Steven Vincelette for damages resulting from an automobile accident. At the close of the evidence, the circuit court directed a verdict for plaintiff and against defendant on the issue of liability, and the jury awarded plaintiff $217,000 in damages. On appeal, defendant contends that (1) the court improperly admitted plaintiff's treating physician's opinion regarding the permanency of her condition although he had not recently examined her; (2) the court erred in permitting plaintiff to present evidence regarding her lost wages although she failed to comply with his notice to produce certain tax returns; and (3) the damage award was excessive and the result of passion and prejudice.

On January 29, 1988, plaintiff was driving on 35th Street in Cicero, Illinois when she was struck from behind by a car driven by defendant. She filed a complaint, alleging that defendant's negligence was the direct and proximate cause of her injuries, including pain and mental anguish, lost earnings, and medical expenses. Defendant answered, admitting striking the rear of plaintiff's car, but denying that he was negligent or that plaintiff was injured to the extent she claimed.

At trial, defendant, called as an adverse witness, testified that he had struck the rear of plaintiff's car on his way home from work. Debra Smetana, a human resources information specialist at Dominick's Finer Foods, testified that plaintiff formerly worked at one of its stores, and that between January 29, 1988 and April 30, 1988, plaintiff had missed 432.34 hours of work at $8.90 per hour, for a total loss of $3,847.83.

Flora Ann Carbon, a physical therapist at Oak Park Hospital, testified that she first saw plaintiff on February 9, 1988. At that time, plaintiff told her that she was "rear ended" by another car and that she hit the steering wheel and her knees hit the dashboard. After examining plaintiff's range of motion, Carbon determined that "all of her cervical motions were limited and caused an increase in pain." She also determined that plaintiff had very severe spasms and much tenderness along both sides of the cervical area. Plaintiff also complained of tingling or numb-like sensations in both arms, and said that pain radiated from her neck into her left shoulder and right jaw. On February 11th, she attempted to give plaintiff a massage, but plaintiff could not tolerate the pain due to the tenderness. She then gave plaintiff a TENS unit, a low grade electrical stimulant to help the body produce its own pain killers.

Carbon saw plaintiff several times over the next three weeks. Although plaintiff was able to start some mild exercise, on February 29, 1988, she still complained of severe pain in her neck and upper shoulders and had to take several pain pills. Carbon continued to see plaintiff until March 25th, when plaintiff said that she began feeling better. On cross-examination, Carbon stated that plaintiff did not complete the ten physical therapy sessions that had been prescribed by her doctor.

Plaintiff testified in her own behalf that, following the accident, she was taken by ambulance to the hospital where X rays of her spine were taken. Three days later, on Monday, February 1, 1988, she went to her family doctor, Dr. Violetta Simov, because she was "sore from top to bottom." She complained of extreme pain in her head, neck, shoulder, and hands. Dr. Simov gave her a cervical collar and some prescriptions to reduce the swelling. Because the medication was not helping, she returned to Dr. Simov the following Monday, and was told to attend physical therapy. She then attended physical therapy with Carbon, but did not attend all of the ten sessions prescribed by Dr. Simov, because she wanted to return to work.

Because she was reassigned from working the deli counter to unloading new deli shipments, plaintiff quit her job at Dominick's and began driving a truck for the next three months. She then moved to California, as planned before the accident.

In California, she continued to have problems with her neck. She first saw a Dr. Chernin and then in March 1989 she saw Dr. Gary Feldman. She returned for a further evaluation in May 1989, and complained of spasms in her shoulders, periodic numbness in her hand, and no improvement in the condition of her neck. He prescribed physical therapy, which lasted three months. Upon the Conclusion of the therapy, she felt better but still sometimes suffered spasms.

In August 1991, she had another attack and could not control the spasm or pain. She went to Dr. Feldman and told him that her hand would tingle, burn, and then go numb. She saw other doctors through her HMO after that; she still had neck spasms, and numbness and stiffness in her hand.

Prior to the accident, she was very active in sports, including golf, weight lifting, horseback riding, baseball, softball, and water sports. Since the accident, she tried to play golf numerous times, but had difficulty holding a club for a long period of time. She could no longer lift weights and she did not participate in water sports other than swimming. She was able to perform her duties at work, but sometimes experienced ...

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