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05/22/97 RICHARD J. ZUDER v. MARK W. GIBSON

May 22, 1997

RICHARD J. ZUDER, PLAINTIFF-APPELLANT,
v.
MARK W. GIBSON, AND ADMIRAL HEATING AND VENTILATING, INC., DEFENDANTS-APPELLEES (PALMER S. LAZARUS, DEFENDANT).



Appeal from the Circuit Court of Lake County. No. 94--L--563. Honorable Jack Hoogasian, Judge, Presiding.

Released for Publication June 24, 1997.

Presiding Justice Geiger delivered the opinion of the court. Doyle and Rathje, JJ., concur.

The opinion of the court was delivered by: Geiger

PRESIDING JUSTICE GEIGER delivered the opinion of the court:

The plaintiff, Richard Zuder, brought this action for injuries sustained when his vehicle was struck from behind by another vehicle being driven by defendant Mark Gibson. The jury returned a verdict awarding the plaintiff damages for medical expenses and pain and suffering, but failed to award any damages for disfigurement and loss of normal life. In the instant appeal, the plaintiff requests a new trial on the issue of damages, arguing that the jury's award of damages was irreconcilably inconsistent and contrary to the manifest weight of the evidence. The plaintiff also argues that he was denied a fair trial because of certain acts of misconduct committed by defense counsel during the trial. We affirm.

The record indicates that on May 13, 1993, at approximately 1:25 p.m., the plaintiff was operating his vehicle in a northerly direction on Northwest Highway, approaching the intersection of Berry Street in Barrington. The traffic signal at the intersection was red, and the plaintiff brought his vehicle to a complete stop.

Gibson was also operating his vehicle in a northerly direction on Northwest Highway, and he stopped his vehicle directly behind the plaintiff. Gibson was employed as a salesman by defendant Admiral Heating and Ventilation, Inc. (Admiral). At the time in question, Gibson was on his way from Admiral's offices in Hinsdale to meet with a client in Cary.

When the traffic signal at the intersection turned green, a vehicle traveling southbound on Northwest Highway suddenly made a left-hand turn directly in front of the plaintiff. This southbound vehicle was being operated by Palmer Lazarus. In order to avoid contact with Lazarus' vehicle, the plaintiff immediately applied his brakes, and his vehicle was struck in the rear by Gibson's vehicle. The property damage to the plaintiff's and Gibson's vehicles was $1,438 and $1,000, respectively.

Following the accident, the plaintiff moved his vehicle to the side of the road and was transported by ambulance to Good Shepherd Hospital in Barrington. The plaintiff's primary medical complaint was pain in his neck. Following a medical examination and X rays at the hospital, the plaintiff was released with a neck brace and prescriptions for pain medication. The plaintiff was also instructed to follow up with his family physician, Dr. Padmini Thakkar.

Complaining of persistent neck and shoulder pain, the plaintiff followed up with Dr. Thakkar on May 24, 1993. Dr. Thakkar diagnosed the plaintiff's condition as a cervical strain and prescribed several weeks of physical therapy at Good Shepherd Hospital. During June 1993, the plaintiff received four physical therapy treatments from Laurie Kovacs, a licensed physical therapist. The plaintiff reported that his symptoms were progressively improving during these treatments and that he had made a 90% improvement by the time of his discharge from Kovacs' treatment on June 24, 1993.

During the remainder of the summer of 1993, the plaintiff's neck and shoulder pain recurred, and he reported that the pain had begun to radiate down his arm. He remained under Dr. Thakkar's care and underwent an MRI examination on November 1, 1993. The MRI report revealed that he had herniated discs at the C5/6 and C6/7 levels and a minimal bulging disc at the C3/4 level. Dr. Thakkar referred him to Dr. Kanu Panchal for a neuro-surgical consultation.

Dr. Panchal testified that the MRI scan revealed that the plaintiff had osteophytes (bone spurs) on his spine, which was indicative of the existence of a condition known as degenerative disc disease. Dr. Panchal opined that, based upon a reasonable degree of medical and surgical certainty, the plaintiff had been suffering from this condition prior to the accident in question. Dr. Panchal testified that this degenerative condition can result in bulging and herniated discs even without a traumatic event. He did acknowledge, however, that it was possible that the trauma from the accident aggravated the degenerative condition of the spine and caused the discs to herniate.

On February 10, 1994, Dr. Panchal performed a surgical cervical diskectomy and fusion on the plaintiff at levels C5/6 and C6/7. Following the surgery, Dr. Panchal reported that the plaintiff's pain was reduced and that the tingling and numbness in his arms was gone. At the plaintiff's last office visit on March 7, 1994, Dr. Panchal reported that, despite some recurring pain, the plaintiff had fully recovered and would have no permanent disability.

Dr. Thakkar assisted with the operation performed by Dr. Panchal. Dr. Thakkar testified that the surgery had been a success and confirmed the presence of osteophytes along the plaintiff's spine. She testified that, following the surgery, the plaintiff continued to have pain and a limited range of motion in his neck. These complaints had persisted to the date of the trial. Dr. Thakkar testified that, following the surgery, she could also feel a knot in the plaintiff's right shoulder blade and that the knot caused the plaintiff pain. She opined that the plaintiff's herniated discs, muscle condition, and knot had been caused by the accident ...


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