Appeal from the Circuit Court for the 12th Judicial Circuit Will County, Illinois. No. 93 L 9099. Honorable Martin C. Rudman, Judge, Presiding.
Released for Publication March 26, 1996.
Honorable Peg Breslin, Presiding Justice, Honorable Tom M. Lytton, Justice, Honorable Michael P. McCUSKEY, Justice. Presiding Justice Breslin delivered the opinion of the court: Lytton and McCUSKEY, JJ., concurring.
The opinion of the court was delivered by: Breslin
PRESIDING JUSTICE BRESLIN delivered the opinion of the court:
The defendant, Kevin O'Connell, appeals from the judgment entered on a jury verdict in favor of the plaintiff, Vanessa Abbinante, in a personal injury suit. The defendant claims that the trial court erred in preventing his expert witness from testifying about axial loading as it related to the plaintiff's injuries. He also claims that the trial court abused its discretion by using a non-IPI jury instruction which substituted loss of a normal life as an element of damages for the IPI disability instruction. We hold that the defendant's failure to make an offer of proof regarding his expert's axial loading testimony resulted in the waiver of that issue. We also hold that the trial court did not abuse its discretion by using the non-IPI loss of normal life jury instruction. We therefore affirm the trial court's ruling on both issues.
This case arises out of an accident in which an automobile driven by Kevin O'Connell struck 17-year-old Vanessa Abbinante while she was walking on a sidewalk. In his answer to Vanessa's complaint, Kevin admitted liability but contested the amount of damages. The court held a jury trial on the issue of damages.
In addition to her other injuries, Vanessa demonstrated her abnormal spinal curvature to the jury, both in person and by pictures. She testified that she participated in volleyball, basketball, softball and jogging prior to her injuries. As a result of her injuries, however, she could no longer run or participate in any exercise that involves swinging her arms. Vanessa also experienced difficulty sitting and sleeping. She stated that she had to quit her job as a waitress because she could not carry the trays or stand on her feet for long periods of time. Further, she had to reduce her hours as a hairdresser because she had difficulty holding up her arms.
Vanessa's expert witness testified at trial that although her spine had compensated for her back injuries, which has allowed her to stand erectly, she will suffer further complications and pain in the future. According to this witness, compensation causes increased stress and force on the vertebral body and creates an imbalance in the spine. He recommended that she undergo corrective surgery in order to prevent further curvature of her spine.
Similarly, Vanessa presented a videotaped deposition of a physician who had treated her. This physician testified that her activities will be permanently limited due to her injury. In addition, Vanessa's spine is now rigid, allowing her to bend back only 50 degrees, and she has already developed early degenerative arthritis in her lumbar spine. Further spinal changes or degeneration may cause projection into the spinal canal.
Vanessa also presented a videotaped deposition of an obstetrician and gynecologist, who testified that she would experience problems associated with pregnancy, labor and delivery.
Kevin's expert witness, Dr. Robert Hall, testified in his deposition that although Vanessa suffered spinal injuries resulting in increased curvature, her spine was relatively normal because it had naturally compensated for the injury. Due to the compensation, the increased curvature in Vanessa's spine was not likely to cause her any pain and did not increase the risk of additional spinal problems.
At trial, Dr. Hall essentially repeated his deposition testimony. In addition, the following exchange took place during the direct examination of Dr. Hall:
"Q. Now, Doctor, are your familiar with the term ...