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June 28, 1996


Appeal from the Circuit Court of Cook County. Honorable Walter J. Kowalski, Judge Presiding.

Released for Publication August 13, 1996. As Corrected October 11,1996.

Presiding Justice McNULTY delivered the opinion of the court: Cousins and Hourihane, JJ., concur.

The opinion of the court was delivered by: Mcnulty

PRESIDING JUSTICE McNULTY delivered the opinion of the court:

A jury awarded Nicholas Tedeschi $100,000 in damages from Burlington Northern Railroad for aggravation of a preexisting condition due to a collision between Tedeschi's truck and defendant's train. The jurors also awarded Kathleen Tedeschi $10,000 for loss of society, but they awarded Nicholas nothing for medical expenses, pain and suffering, and disability. Plaintiffs appeal from judgment entered on the verdict. We find that the verdict is not irreconcilably inconsistent, and it does not show that the jury overlooked proven elements of damages. Therefore, we affirm.

Around noon on June 22, 1987, Nicholas drove a tractor-trailer across railroad tracks. A train shoving cars at three or four miles per hour ran into the trailer. The trailer pivoted from the tractor, and the train pushed the back end of the trailer about 15 feet. The collision rocked the tractor, but the tractor did not move from its lane. Nicholas, in the tractor, fell against the door and the steering wheel, twisting his back when the tractor rocked. He got out of the tractor and the train's conductor walked up to him. Nicholas told the conductor he was not hurt.

Nonetheless, Nicholas went to a hospital, where doctors Xrayed his back. He stayed in the hospital for a week. He continued to receive back therapy for several months before his doctors told him he could return to work. In October 1987 Nicholas tried to work, but after two days he found the pain unbearable. He went to Dr. Robert Rosenzweig, who hospitalized Nicholas for another 10 days. After further back therapy, Nicholas again returned to work in December 1987. Dr. Rosenzweig found that Nicholas then had a good range of motion, normal neurological test results and a normal ability to raise his legs.

Nicholas worked regularly until February 1988, when he returned to Dr. Rosenzweig. Nicholas told Dr. Rosenzweig that he had slipped off a step at work. His straight leg raise test and other tests showed his range of motion diminished considerably. Neurological tests showed diminished sensation in the legs. Rosenzweig then took Xrays, myelograms and CAT scans. He found evidence that Nicholas suffered from degenerative arthritis. Rosenzweig readmitted Nicholas for two weeks in the hospital in April 1988, and for another week in May, to perform further tests to determine why his condition did not improve.

Nicholas continued to receive medical treatment from various physicians. In 1989 he began psychiatric treatment for depression. In 1991 he had back surgery to alleviate the pain. The lawsuit against defendant went to trial in 1994.

Dr. Leonard Berlin, a radiologist, testified that the Xray of Nicholas' back from June 1987 showed degenerative arthritis, which must have preceded the accident by at least several months. He saw no indication on that or subsequent Xrays that any traumatic incident, like the accident, accelerated the spinal degeneration.

Dr. Kenneth Heiferman, who performed the back surgery in 1991, testified that the operation relieved pressure on Nicholas' nerves. The pressure could have been the result of degenerative processes. The extent to which the accident contributed to the progression of ongoing degenerative processes was probably proportional to the degree of trauma suffered in the accident. Heiferman clarified: "it's hard to say how much *** the accident contributed to *** the physical degenerative findings *** [or] the structural changes."

Dr. Rosenzweig admitted that he did not do extensive studies when Nicholas first came to him in October 1987 because his condition did not then warrant further studies. He ordered the myelogram and CAT scan in 1988, after Nicholas reported slipping at work, because his condition, reflected in range of motion and neurological tests, then warranted further investigation. Dr. Rosenzweig had no opinion "as to how much of Mr. Tedeschi's condition *** [in] 1988 is due to the automobile accident of June of 1987, how much of it is due to the preexisting arthritis, and how much of it is due to this incident where he slipped off a step."

Dr. Daniel Hardy, a psychiatrist, reviewed records from Nicholas' psychiatrist and concluded that most of the psychiatric treatment addressed a personality ...

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