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04/29/94 SISTER MARIE GOLLA v. GENERAL MOTORS

April 29, 1994

SISTER MARIE GOLLA, PLAINTIFF-APPELLANT,
v.
GENERAL MOTORS CORPORATION, A FOREIGN CORPORATION, DEFENDANT-APPELLEE.



Appeal from Circuit Court of Champaign County. No. 89L914. Honorable George S. Miller, Judge Presiding.

As Corrected May 23, 1994. Released for Publication June 1, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Honorable John T. McCULLOUGH, P.j., Honorable James A. Knecht, J., Honorable Carl A. Lund, J.

The opinion of the court was delivered by: Mccullough

PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court:

Plaintiff Sister Marie Golla appeals from an order of the circuit court of Champaign County granting summary judgment to defendant General Motors Corporation in this products liability action. The only issue raised by plaintiff is whether the trial court improperly granted summary judgment because (a) the discovery rule was misapplied, or (b) a genuine issue of material fact remained to be determined. We affirm.

On August 8, 1989, plaintiff filed a complaint alleging that on June 21, 1984, she purchased a 1984 Buick Skylark four-door sedan which was not reasonably safe because the seat adjustment and locking mechanism on the driver's seat was subject to failure during a collision. The complaint further alleged that on September 3, 1985, plaintiff was operating this Buick when it was involved in a collision with another automobile. At that time, the plaintiff, who was wearing the three-point passenger restraint with which the vehicle was equipped, was injured when the driver's seat slid forward. As a result, plaintiff allegedly suffered from reflex sympathetic dystrophy (RSD).

Defendant asserted an affirmative defense based on the statute of limitations contained in section 13-202 of the Illinois Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 13-202) and filed a motion for summary judgment. Defendant also filed a request to admit facts to which plaintiff never replied (134 Ill. 2d R. 216). The request to admit facts asked plaintiff to admit that (1) she was involved in an automobile accident on September 3, 1985; (2) directly following the accident on that date, she was seen by Dr. Sol Barnett; (3) she was also seen by Barnett on September 4, 1985, at which time she complained of discomfort and swelling in her left wrist; and (4) on April 8, 1986, she was seen by Barnett and complained of discomfort in her left shoulder and arm.

In opposition, plaintiff asserted that the discovery rule in section 13-213(d) of the Code applied. (Ill. Rev. Stat. 1991, ch. 110, par. 13-213(d).) According to plaintiff, because the RSD did not manifest itself until November 1987 and was not diagnosed until March 1988, the cause of action was not time-barred. Plaintiff's affidavit stated she first experienced symptoms on November 1, 1987, and saw Barnett on that date. Barnett referred her to Drs. Wayne A. Rubinstein and Barry G. W. Arnason, who diagnosed her condition as RSD on March 23, 1988.

After concluding that the discovery rule pertained and that plaintiff's response to the motion for summary judgment sufficiently raised a genuine issue of material fact, the trial court denied the defendant's motion for summary judgment. However, defendant filed a motion to reconsider the denial of the motion for summary judgment. In addition to the request to admit facts previously referred to, several additional documents were attached as exhibits.

In a letter to Mr. Sun Nurmohammed, dated June 4, 1986, plaintiff described the accident as follows:

"On September 3, 1985, our car, a 1984 Buick Skylark[,] was involved in an accident in which in [sic ] sustained considerable damage. So violent was the impact of the crash that the front seat broke loose from the floor causing considerable physical hurt from the seat belt which forced me to remain in place."

The medical records of Barnett, dated September 3 and 4, 1985, as well as Barnett's discovery deposition, indicated that it was Barnett's impression that on September 3, 1985, plaintiff suffered a contusion of the chest as a result of the accident and on September 4, 1985, she suffered a sprain or contusion of the left wrist. Had he thought there was something more serious, he would have ordered X rays. Plaintiff did not appear to be in acute distress. His examination revealed tenderness in the chest wall and tenderness and swelling of the left wrist. He felt there could have been a stretching phenomenon of the wrist. Plaintiff had full range of motion.

Subsequently, he saw her for an injury to the left fourth finger on October 15, 1985, and discomfort in the lower rib cage--possibly chest wall pain on April 2, 1986. The reasons for the April 8, 1986, February 17, 1987, and June 18, 1987, visits were not explained in his deposition. She was seen for a migraine headache and contusion of the right thumb on September 3, 1986, falling to her knees on January 6, 1987, pain in the right elbow and discomfort in both hips on January 13, 1987, and cysts on April 21 and May 14, 1987. On June 24, 1987, she was seen because she had passed out. Barnett suspected a functional syncope. He did not suspect a brain tumor "or anything serious." After a few more unexplained visits, plaintiff wassent to Dr. J. Timothy Sehy on December 29, 1987. In his notes, Sehy said plaintiff's chest discomfort had been "long standing and unchanged." Barnett testified that prior to December 29, 1987, plaintiff had been suffering from chest discomfort.

The doctors treating her started to suspect she had Raynaud's phenomenon because her left hand became cold and bluish. Barnett conceded he knew nothing about RSD. Plaintiff did not respond to treatment for Raynaud's phenomenon, and ...


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