Appeal from the Circuit Court of Cook County. Honorable John Crown, Judge Presiding.
Released for Publication September 27, 1994.
The opinion of the court was delivered by: Cahill
JUSTICE CAHILL delivered the opinion of the court:
The defendant appeals the decision of the trial court to instruct the jury on the future pain and suffering of the plaintiff even though expert testimony was not introduced in support. The jury signed a verdict form that awarded the plaintiff $10,000 for past and future pain and suffering. We hold that the nature of the plaintiff's injury requires expert testimony to support an instruction on future pain and suffering and reverse for a new trial on damages.
Maddox and Rozek were involved in an automobile accident. Maddox sued Rozek for injuries, and the case was assigned to mandatory arbitration. The arbitrator ruled in plaintiff's favor, Rozek filed a rejection of the award, and the case was tried before a jury.
There is no trial transcript. The parties stipulate that plaintiff testified to the following at trial: (1) the morning after the accident, Maddox woke up with pain in his left shoulder and back; (2) he was hospitalized five days. for treatment of his injuries; (3) he received 8 follow up treatments for his injuries; (4) the treatments "somewhat relieved" his symptoms; (5) his medical bills totalled $3,181.60; (6) he lost $1,437.04 in wages; and (7) "His left shoulder periodically still hurts, he has upper back pain every day and his lower back stiffens up when he has to sit for long periods of time which occurs every day he has to work as a CTA bus driver;" and "every day he has pain in his upper and lower back and periodically his shoulder."
Maddox introduced an official U.S. Government Life ExpectancyChart over objection, which showed he could be expected to live another 26.5 years.
No expert testimony was offered on the issue of future pain and suffering.
Plaintiff tendered four jury instructions which address permanence of the injury and future pain and suffering. Essentially, these instructions told the jury that if defendant was held liable, they could award plaintiff damages for the pain and suffering he was reasonably likely to experience in the future. The jury was also instructed that if they found the pain and suffering to be permanent and continuing in nature, they could award damages for pain and suffering based upon life expectancy. Defendant objected, arguing that the instructions were not supported by the evidence, since there was no expert testimony to support the claim of future pain and suffering. The Judge overruled the objection.
The jury returned the following verdict for the plaintiff: $3,000 for reasonable medical care, $1,400 for lost earnings, and $10,600 for pain and suffering "experienced and reasonably certain to be experienced in the future."
Defendant first contends that the trial Judge erred by denying a motion for a new trial because the jury should not have been instructed on future pain and suffering in the absence of expert testimony. He also contends that admitting the life expectancy chart was error because it implicitly lent credibility to an award for future pain and suffering.
We begin with the general rule that a litigant is entitled to an instruction on a theory of recovery if there is "some evidence" in the record to support it. ( Lundquist v. Nickels (1992), 238 Ill. App. 3d 410, 605 N.E.2d 1373, 179 Ill. Dec. 150.) Evidence of future pain and suffering requires a showing that it is reasonably certain to occur in the future. Molitor v. Jaimeyfield (1993), 251 Ill. App. 3d 725, 622 N.E.2d 1250, 190 Ill. Dec. 933; see also Caley v. Manicke (1961), 29 Ill. App. 2d 323, 173 N.E.2d 209 (instruction on future pain and suffering cannot be based on speculative testimony), rev'd on other grounds (1962), 24 Ill. 2d 390, 182 N.E.2d 206.
Illinois courts have accepted the view that lay testimony alone, or the nature of an injury, can support an instruction on future pain and suffering. In A.O. Smith Corp. v. Industrial Commission (1977), 69 Ill. 2d 240, 371 N.E.2d 607, 13 Ill. Dec. 672, an employee's testicles were crushed in a work accident. Although no expert evidence was offered to show that the plaintiff's injury was permanent, the court held: "The general rule is that direct expert evidence is not essential to establish the permanency ...