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Moran v. Erickson

June 10, 1998


The opinion of the court was delivered by: Justice Gordon



Plaintiff, Lisa Moran, brought the instant action against the estate of Paul Lonergan seeking to recover for personal injuries she sustained from the admitted negligent operation of an automobile by Lonergan. The matter proceeded to trial on the issue of damages, and the jury returned a verdict in favor of Lonergan's estate. On appeal the plaintiff argues that she is entitled to judgment notwithstanding the verdict or a new trial because the verdict was against the overwhelming weight of the evidence and, alternatively, that she is entitled to a new trial due to erroneous admission of evidence and the improper use of records to refresh recollection. For the reasons discussed below, we affirm.


At trial, the plaintiff testified that on November 30, 1989, she was involved in an automobile collision which caused her knees to "hit the dash. She stated that her knees felt like they were broken. She was taken to Evanston Hospital by ambulance where x-rays were taken. Apparently, the x-rays did not disclose any fractures or "hard tissue injuries"; and the plaintiff was not hospitalized. The plaintiff further testified that on December 1, 1989 she awoke to "pain from head to toe" and went to her internist, Ann Niedenthal, who sent her for x-rays and prescribed medication for whiplash. A couple of months later, Niedenthal sent the plaintiff to David Carey for physical therapy. Carey performed therapy on the plaintiff, initially on her neck and then on her knees, until December of 1990 or January 1991. In April 1990, Niederthal referred the plaintiff to Doctor McMillan, an orthopedic surgeon, because plaintiff's knees were still swollen.

The plaintiff testified to treatment rendered to her by the following medical professionals: Doctors McMillan and Sweeney, orthopedic surgeons; David Carey, a physical therapist; Doctor McMahon, a neurologist; Lynn Robinson, a physical therapist; and Doctor Tovian, a psychologist. She also testified to medical visits in 1992 with Doctors Hefferon, Hill and Sheinkop who rendered medical opinions regarding plaintiff's need for arthroscopic surgery which was performed on her left knee by Doctor Hill in 1992. The plaintiff testified to her use of knee braces for long-distance walking, a neck brace for long automobile trips and while sitting for extended periods of time, and crutches after the arthroscopic surgery. She testified to the pain she experienced since the automobile collision and to the limitations that her injuries caused with respect to her ability to interact with her children and to maintain her home. She described incidents of falling when her knees would lock but stated she fell less and did not have severe pain in her knees since the arthroscopic surgery. The plaintiff explained the physical therapy she had undergone during the period after her knee surgery until July 1996 and testified that she continues with physical therapy on her own.

On cross-examination, the plaintiff testified that she did not see any medical providers from December 1, 1989 to February 4, 1990 and that during that time she vacationed in Disney World and Galena, Illinois. She admitted that the Disney World trip began two days after the automobile collision. She also admitted that she may have ridden horses in Galena from which she returned on February 4, one day before her physical therapy with David Carey began. She denied telling Carey that she played five games of tennis on June 10, 1990 or several games of tennis on July 1, 1990 and insisted that she had not played a full game of tennis since the automobile accident. She stated that she had unsuccessfully tried to play tennis on two occasions, in June and in the fall of 1990, pursuant to the advice of her doctor and Carey.

The plaintiff presented testimony by the following treating physicians and health care providers: Doctor John McMahon, a board-certified neurologist; Doctor Warren Baskin, a licensed chiropractor; Doctor Robert Hozman, a board-certified internist and rheumatologist; and Doctor James A. Hill, a board-certified orthopedic surgeon. Each testified to the dates they saw the plaintiff, the reason for the visits, the plaintiff's complaints regarding her physical condition, their medical diagnoses, and the medical treatment rendered to the plaintiff.

Doctor John McMahon testified that the plaintiff had been referred to him by her orthopedic surgeon, Howard Sweeney, for an evaluation of her neck. He stated that he first saw the plaintff on April 10, 1991. She was pregnant at that time. He examined the plaintiff and obtained her medical history. McMahon testified concerning the physical complaints made by the plaintiff to him and concerning his physical examination of her. At that time, McMahon concluded that the plaintiff suffered from inflammation or irritation of the nerve root which he characterized as cervical radiculitis. He recommended that the plaintiff undergo cervical physical therapy.

McMahon testified that he also examined the plaintiff on June 17, 1991. He stated that the plaintiff indicated to him that her physical condition had improved while she was undergoing physical therapy. She told him she was again experiencing neck pain, knee pain and hand sensory symptoms since she had been discharged from physical therapy eleven days earlier. McMahon believed that the plaintiff's wrist sensitivity was symptomatic of transient carpal tunnel syndrome which disappears after pregnancy. McMahon testified that he believed the plaintiff continued to suffer from cervical radiculitis and he resumed physical therapy because of her headaches, neck pain and arm symptoms. With respect to the relationship between plaintiff's condition and the automobile collision on November 30, 1989, McMahon testified:

"I assumed the auto accident to be the cause of the symptoms because of the temporal relationship of the plaintiff's symptoms to that accident. They came on after it in close proximity. And there was nothing else in her history to which they seem attributable."

He further stated that, in his opinion, the plaintiff was in pain when he examined her in April and June 1991 and that he "had no reason to think she was faking."

On cross-examination, McMahon stated that intermittent discomfort, numbness and tingling in the hands and wrist area are symptomatic of carpel tunnel syndrome as well as cervical radiculitis. He determined that the carpel tunnel syndrome was not related to the accident because the plaintiff's symptoms had not been present during her first visit with him. He admitted that the results of the tests he performed upon the plaintiff during his physical examination of her were determined exclusively by her subjective indications of pain, her general demeanor and the manner in which she postured her body. He stated that a good actor could present a picture of pain. He admitted that his that the plaintiff's pain was caused by the automobile accident was based upon what the plaintiff told him. He also stated that he received a letter in June 1991 from a physical therapist, Lynn Robinson, who indicated that on two occasions she observed the plaintiff perform cervical motions while attending to her child that would have caused her to complain during physical therapy sessions.

Doctor Warren Baskin, a licensed chiropractor, testified that the plaintiff was referred to him in June 1993 by Doctor Hill for diagnosis and treatment of musculoskeletal pains other than those emanating in the knee. He stated that Doctor Hill dealt exclusively with knees problems. During his examination, the plaintiff experienced pain in the neck, mid-back, lower back, hip and knee. According to Baskin's notes, the plaintiff indicated that she could not walk two inches without support. He concluded that she suffered from fibromyalgia, a syndrome of diffused musculoskeletal pain throughout the body, concomitant with post-traumatic cervical sprain, also known as whiplash, and disc syndrome in the lower back. Baskin performed therapy on the plaintiff from June 1993 to September 1993. Baskin admitted on cross-examination that his diagnosis of the plaintiff was based upon his examination of her and her corresponding indications of pain; her history of pain; and her disclosures regarding physical activities that she could not do. He also admitted that his opinions were based upon what the plaintiff told him she felt in terms of pain and what she told him she could physically do. He could not say that the plaintiff's pain was caused by the accident.

Doctor Robert Hozman, a physician board certified in internal medicine and rheumatology testified that he first saw the plaintiff in October 18, 1993. At that time he obtained a medical history from her and conducted a physical musculoskeletal examination of her. He determined within a reasonable degree of medical certainty that the plaintiff had fibromyalgia. Hozman testified concerning his treatment of the plaintiff, the lack of significant improvement, and his belief that her condition was permanent and that she would continue to require medication, physical therapy and exercise. He testified that the pain the plaintiff exhibited during examination was real. He stated that patients with fibromyalgia appear normal to others and can have good days and bad days as the pain migrates and "waxes and wanes." He stated that patients with fibromyalgia are often seen by ...

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