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03/31/95 RICHARD D. KNIGHT AND LANCE I. KNIGHT v.

March 31, 1995

RICHARD D. KNIGHT AND LANCE I. KNIGHT, A MINOR, BY RICHARD D. KNIGHT, HIS NEXT FRIEND, PLAINTIFF-APPELLANTS,
v.
THOMAS H. LORD, DEFENDANT-APPELLEE.



Appeal from Circuit Court of Champaign County. No. 92L1041. Honorable John G. Townsend, Judge Presiding.

Released for Publication March 31, 1995.

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

The opinion of the court was delivered by: Knecht

PRESIDING JUSTICE KNECHT delivered the opinion of the court:

Plaintiff Richard Knight appeals from the trial court's denial of his motion for a new trial following a jury verdict awarding him $10,000 damages against defendant Thomas Lord. We affirm.

In November 1987, plaintiff was injured in a chain reaction rear-end collision. A truck driven by defendant started the chain reaction. Plaintiff filed suit against defendant for personal injuries caused by the collision. Defendant conceded liability, so the trial proceeded on the issue of damages only.

The trial occurred in May 1994. Prior to opening arguments, defendant objected to the admission of portions of the evidence deposition testimony of two doctors, Dr. Rak and Dr. Burkle, regarding the permanency and prognosis of plaintiff's injuries. Dr. Rak last examined plaintiff in 1987, and Dr. Burkle last examined plaintiff in January 1992. The trial court sustained defendant's objections on the basis Illinois law requires opinions on permanency or prognosis be preceded by a recent examination.

Defendant also objected to the admission of portions of Dr. Rak's evidence deposition testimony stating his opinion on the nature and extent of plaintiff's injuries. The opinions to which defendant objected were opinions based in part on records of Dr. Burkle and a Dr. Helfrich, which records Dr. Rak had not used in treating plaintiff, and had not seen until the day of the deposition. The trial court sustained the objection on the basis Dr. Rak's testimony of this nature should have been disclosed under Supreme Court Rule 220 (134 Ill. 2d R. 220), which requires the disclosure of expert witnesses. The trial then proceeded with the testimony of witnesses, the relevant parts of which will be brought out as necessary during the discussion of the issues.

At the close of evidence, defendant objected to plaintiff's tender of a nonpattern jury instruction which stated, in it entirety, the following: "The loss of the enjoyment of life is a relevant consideration in determining damages for pain and suffering." The trial court sustained the objection on the basis it would not be helpful to the jury.

The jury returned a $10,000 verdict in favor of plaintiff, itemized as follows: $2,000 for "the aggravation of any pre-existing ailment or condition," $3,000 for the "reasonable expense of necessary medical care, treatment and services rendered," and $5,000 for "the present cash value of the reasonable expenses of medical care, treatment and services certain to be received in the future." The jury awarded zero dollars for each of the following: "the disability resulting from the injury," "the disfigurement resulting from the injury," "the pain and suffering experienced," and "the pain and suffering reasonably certain to be experienced in the future."

Plaintiff now appeals the denial of his post-trial motion for new trial, asserting the trial court erred by failing to allow portions of the testimony of Dr. Rak and Dr. Burkle, as well as plaintiff's tendered jury instruction. Plaintiff also asserts the jury's verdict was against the manifest weight of evidence because the jury verdict was inconsistent, manifestly inadequate, and ignored a proved element of damages.

Plaintiff initially asserts the trial court erred in granting defendant's objections to the evidence deposition testimony because defendant had waived any objections by failing to timely object to the deposition testimony prior to trial. The record is to the contrary. During the deposition of Dr. Rak, defendant continuously objected to questioning regarding the permanency and prognosis of plaintiff's condition on the basis the opinions were not based on a recent examination of plaintiff. Defendant also objected to this same testimony by Dr. Rak on the basis Dr. Rak's opinion was beyond the scope of Dr. Rak's diagnosis and treatment and therefore constituted an expert opinion which should have been disclosed. In regard to Dr. Burkle's testimony concerning the permanency and prognosis of plaintiff's injuries, Dr. Burkle's deposition was taken in March 1992, only two months after his examination of plaintiff. However, by the time of trial, 2 1/2 years had elapsed, causing Dr. Burkle's deposition opinion to become stale. Defendant did not have the lapse of time as a basis for the objection during the deposition so he did not waive it by failing to object. Further, the defendant did object to the deposition prior to trial. The docket entry dated January 3, 1994, states "over objection plaintiff's motion to admit evidence deposition of Drs. Rak and Burkle is granted." The record is silent on what grounds the objections were made. Any doubts caused by an insufficient record will be resolved against the appellant. ( People v. Sechler (1994), 262 Ill. App. 3d 226, 227, 634 N.E.2d 1283, 1284, 199 Ill. Dec. 929.) Therefore, we presume at least one of the grounds on which defendant objected was that no recent examination had been performed on plaintiff.

Plaintiff next asserts defendant waived objections to the evidence depositions because defendant failed to comply with local Rule 2.1(b) of the Rules of Practice of the Circuit Court as adopted by the Sixth Judicial Circuit, which states: "with the exception of emergency matters or by leave of court, no motion shall be heard unless previously allotted for hearing on the court's calendar." (6th Jud. Cir. R. 2.1(b) (1992).) This argument is without merit. Plaintiff brought local Rule 2.1(b) to the attention of the trial court when defendant moved to strike portions of the evidence deposition testimony. Nevertheless, the trial court allowed defendant to proceed with his objections. Therefore, defendant received leave of court to have his motion heard, and defendant complied with local Rule 2.1(b). Defendant did not waive objections to the evidence deposition testimony.

We turn now to the merits of the issues concerning the evidence deposition testimony. The admissibility of evidence at trial is a matter within the sound discretion of the trial court, and that court's decision will not be overturned on appeal absent a clear abuse of discretion. ( People v. Illgen (1991), 145 Ill. 2d 353, 364, 583 N.E.2d 515, 519, 164 Ill. Dec. 599.) In Illinois, a physician may not testify at trial regarding his opinion of a patient's prognosis unless it was based on a recent examination. Marchese v. Vincelette (1994), 261 Ill. App. 3d 520, 525, 633 N.E.2d 877, 880-81, 199 Ill. Dec. 81, citing Wilson v. Chicago Transit Authority (1988), 126 Ill. 2d 171, 176, 533 N.E.2d 894, 897, 127 Ill. Dec. 812; Henricks v. Nyberg, Inc. (1976), 41 Ill. App. 3d 25, 28, 353 ...


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