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Lagestee v. Days Inn Management Co.

March 15, 1999


The opinion of the court was delivered by: Justice O'mara Frossard

Appeal from the Circuit Court of Cook County Honorable James S. Quinlan, Jr., Judge Presiding.

Plaintiffs David and Jilayne Lagestee filed this negligence action against the defendants, various entities responsible for the ownership and management of the Days Inn Hotel on Lake Shore Drive in Chicago. Plaintiffs alleged that on February 19, 1991, plaintiff David Lagestee (David) sustained personal injuries on the premises of the Days Inn Hotel and that the negligence of the employees and agents of the defendants proximately caused David's injuries. Following a jury trial, the jury found in favor of the defendants. The trial court denied plaintiffs' posttrial motions for judgment notwithstanding the verdict or, alternatively, a new trial.

On appeal, plaintiffs raise two issues for review. Plaintiffs contend that the trial court erred in: (1) barring plaintiffs from presenting rebuttal testimony following the testimony of defendants' only witness, Tammy Lestinsky; and (2) allowing defendants to cross- examine plaintiffs' medical expert witnesses on David's cigarette smoking, pre-existing condition, prior injuries, and prior accidents.

At trial, David testified that on February 19, 1991, he was employed at Ace Disposal, a waste hauling company. David stated that on that date he was in good health. He also testified that he had previously injured his back several years earlier, but the injuries were not serious and he had back pain for only a few days. David testified in 1991 he was not experiencing any symptoms from these prior injuries.

On February 19, 1991, David's duties as a waste hauler included picking up a Dumpster at the Days Inn Hotel in Chicago. David had removed the Dumpster on prior occasions. At the Dumpster location, he noticed that a chain-link fence next to the Dumpster was missing a support pipe, and the pipe was actually lying on the ground next to the fence. In addition, the fence had a metal coupling sticking out from the area where it lacked piping. David had reported the condition of the fence before the accident to Tammy Lestinsky, a security guard employed by the defendants. The fence was never repaired.

David further testified that, on the date of the accident, the ground area around the Dumpster was littered with debris and was dirty. In order to separate the Dumpster from the compactor, he was required to loosen a ratchet handle on the Dumpster. While performing this task, David slipped backward and fell on the chain-link fence. His lower back struck the pipe coupling protruding from the fence. After the fall, he noticed that he slipped on tomato paste or sauce and that the paste covered his arms and legs. He also sustained an abrasion or cut on his right arm.

David testified that, following the fall, he reported the accident to Tammy Lestinsky. He told her that he had fallen and that the area around the Dumpster was a mess. Lestinsky told him that she would call house cleaning. Lestinsky assisted David with cleaning the abrasion to his right arm. Lestinsky did not fill out an accident report or examine the area around the Dumpster. After speaking with Lestinsky, David removed the Dumpster and left the Days Inn Hotel. There were no other witnesses to his fall.

David further testified that he returned to the Days Inn Hotel in July of 1991 with his attorneys, Kenneth Lewis and Ann Louise Kleper. David and his attorneys spoke with Lestinsky and she confirmed that she saw that David was injured, that she assisted him with his injuries, and that she believed she called someone to clean the area where he stated he fell.

David additionally testified that, as a result of the fall at the Days Inn Hotel, he sustained an injury to his back. He stated that, following the accident, he had lower back pain but was still able to work. Because the back pain continued, he sought medical treatment from his family physician in March of 1991. Eventually, David had severe pain in his lower back and right leg and was unable to sit down or bend over. He was referred to a neurologist, who recommended microdisectomy surgery on his back. On May 3, 1991, David had the back surgery. Following the surgery, his back pain was substantially reduced, but he still continued to have some pain. David further testified that because of the continued back pain, he had difficulties performing his duties as a waste hauler and took a desk job.

Dr. Charles Mylan Chuman testified that he is a neurological surgeon and first treated David on May 3, 1991, for severe back and right leg pain. Dr. Chuman stated David was unable to raise his right leg while lying on his back. Dr. Chuman found muscle weakness in David's right leg and initially diagnosed David with right sacral one radiculopathy. Dr. Chuman then performed a myelogram to determine if David had any disk or nerve problems in his spine. The myelogram revealed that David sustained a herniation in the bottom disk in his spine at the L5-S1 level. Dr. Chuman further testified that in his opinion the herniated L5-S1 disk caused David's pain in his right leg.

On May 3, 1991, Dr. Chuman performed an operation on David to remove the ruptured portions of the herniated disk. Dr. Chuman continued to treat David until June 6, 1991. He testified that, during this time frame, David was unable to perform any bending or twisting activities and was unable to perform his job duties. Dr. Chuman described the surgery as successful and substantially decreased David's pain.

Dr. Chuman testified that in his medical opinion David's fall on February 19, 1991, caused the disk herniation. Dr. Chuman stated that when he performed surgery on David in May of 1991, he found a fresh injury that had occurred in the recent past. Dr. Chuman additionally stated that the disk herniation occurred from trauma that David sustained within the previous year. Dr. Chuman opined that the L5-S1 disk herniation was a permanent condition.

On cross-examination, defense counsel asked Dr. Chuman whether he recommends to his patients that they stop smoking cigarettes and whether there exists any medical studies that state smoking cigarettes causes a permanent disk injury in the lumbar spine. Dr. Chuman answered "yes" to these questions. Defense counsel also questioned Dr. Chuman on whether David could have sustained the disk herniation at the L5-S1 nerve root a year prior to the surgery but not have had any pressure on the nerve or subjective pain. Dr. Chuman responded "no" to this question, because, according to Dr. Chuman, David's disk injury was too big and was a fresh injury.

Plaintiffs called an additional expert witness, Michael Roy Treister, M.D. Dr. Treister, an orthopedic surgeon, testified that he reviewed David's medical records and first examined him in February of 1992. Dr. Treister stated that between the time of his accident on February 19, 1991, and the time he had surgery on May 3, 1991, David had a herniated disk at the L5-S1 level. In addition, Dr. Treister found that David had a bulging disk at the L4-L5 level, but concluded that the disk was not impinging on any nerve. Dr. Treister diagnosed David with degenerative disk disease, a by-product of aging. Dr. Treister testified that in his medical opinion David's falling accident caused the L5-S1 herniated disk. Dr. Treister specifically opined that the trauma from his lower back striking the pipe caused the herniation.

Dr. Treister did not believe that any degenerative disk changes in David's spine were a cause of the herniated L5-S1 disk, but that trauma to his spine in fact caused the herniation. However, he also stated that David "had some degree of degenerative disk disease, or he wouldn't have had the disk herniation." Dr. Treister testified that the herniated disk was a fresh injury because of its appearance at the time Dr. Chuman operated on the disk. Dr. Treister additionally testified that David sustained a permanent injury and that he properly changed his lifestyle to avoid heavy lifting and other activities that could cause future back problems or other herniations.

Moreover, Dr. Treister stated that David's smoking of cigarettes had no causal connection with the L5-S1 disk herniation. On cross- examination, defense counsel questioned Dr. Treister on David's accident in 1986 when he fell off a loading dock and injured his back. According to Dr. Treister's reports, a 1986 falling accident caused David to sustain a fractured third lumbar vertebra at the L3 level. Dr. Treister, however, testified that because the fracture constituted a non-united hypophysis, he had never seen this type of injury to cause back pain. Dr. Treister then opined that the L3 hypophysis was unrelated to David's L5-S1 disk herniation because David had no complaints of pain in his thigh area or other areas of his body that would correlate with the L3 hypophysis back injury.

Defense counsel additionally asked Dr. Treister about a prior injury to David's back in 1987 when he was in a car accident and about "some type of back injury" he sustained while playing football in high school. Dr. Treister responded that his records reflected these previous injuries. Dr. Treister, however, testified that in his opinion none of these prior injuries caused the disk herniation. Dr. Treister stated David's medical history was devoid of any symptoms or history correlating to a L5-S1 disk herniation.

The defendants did not call any expert medical witnesses. The defendants only called one witness, Tammy Lestinsky. She testified that she was a security guard and time keeper at the Days Inn Hotel from February 1987 until September 1993. She remembered the plaintiff, David Lagestee, coming to the Days Inn Hotel a few times a week to remove the Dumpsters.

Lestinsky testified that on February 19, 1991, David never reported to her that he fell near the Dumpster, that he never stated there was tomato sauce or paste near the Dumpster, and that he did not ask her for a band aid or other medical assistance. Lestinsky then stated that David, in July 1991, returned to the Days Inn with two attorneys. They took pictures of the Dumpster area and asked her for a statement. Lestinsky testified that David told her that he was there for a "compensation," that Days Inn had nothing to do with the compensation, and that he requested if Lestinsky would state on a tape recorder that she gave him a bandage. Lestinsky then testified that she gave a recorded statement about David requesting a bandage after he fell.

The tape recording was played in front of the jury. In the recording, Lestinsky stated that on February 19, 1991, David reported to her that he fell near the Dumpster and that she saw that his arm was bleeding. Lestinsky identified her voice as the one on the tape recorder. She testified that she gave ...

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