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Lang v. Lake Shore Exhibits Inc.

March 31, 1999

JOHN H. LANG, PLAINTIFF-APPELLANT
v.
LAKE SHORE EXHIBITS, INC., AND LARRY ZUKER, DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Presiding Justice Campbell

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JAMES J. HEYDA, JUDGE PRESIDING.

Plaintiff, John H. Lang (Lang), brought an action in negligence against defendants, Lake Shore Exhibits, Inc. and Larry Zuker, for injuries Lang sustained in an automobile accident with Zuker. *fn1 The jury returned a verdict in favor of Lang, and against Zuker, and awarded Lang $20,000. On appeal, Lang contends that: (1) the trial court erred in allowing evidence of collateral source payments of income in the form of disability payments by his employer; (2) the jury improperly ignored proven elements of damage in returning its verdict; and (3) the jury's verdict is against the manifest weight of the evidence. For the following reasons, we reverse and remand this matter to the circuit court for a new trial.

I. TRIAL LANG'S INJURIES

The record reveals the following relevant facts. On August 29, 1992, Lang, a Chicago Police Officer, was on duty driving a police squad car when he was involved in an automobile accident with Zuker. Zuker's car collided with Lang's squad car, striking the right rear quarter panel. At trial, Lang testified that his squad car entered the intersection on a green light which changed to yellow when he reached the crosswalk, and Zuker testified that his car entered the intersection on a green light. There were no eye witnesses to the accident. After the collision, Zuker's vehicle came to a complete stop, while the squad car moved further down the street before finally stopping. Lang testified that after the squad car came to a stop, he tried to get out of the squad car, but was unable to do so. Lang was removed from the squad car by paramedics or ambulance personnel.

Lang was admitted to Swedish Covenant Hospital, complaining of pain in his neck and lower back. The evidence revealed that Lang had injured his back in two prior automobile accidents in 1985 and 1986. On both prior occasions, Lang was treated by Dr. Geline and took medical leave from work for two months and four months, respectively. Lang testified that the pain he experienced following the 1992 accident at issue in this case differed from the pain he experienced following the two prior accidents, in that after the prior accidents, Lang did not experience pain receding and radiating down his legs. X-rays taken of Lang's Lumber spine after the accident showed only Lang's prior condition of spondylolysis at L5 and spondylolisthesis at L5-S1.

After three days of hospitalization, Lang was discharged and referred to Dr. Whisler of Illinois Masonic Hospital by the Chicago Police Department medical section for follow-up treatment. Lang complained to Dr. Whisler of back pain and pain in both legs, and Dr. Whisler prescribed pain relievers. Lang received treatment from Dr. Whisler for ten weeks, during which time he did not return to work. On October 16, 1992, Lang underwent an MRI examination. Lang's MRI confirmed the findings of his prior X-rays, which showed only Lang's pre-existing conditions. Lang subsequently underwent two weeks of physical therapy. After three months, Dr. Whisler released Lang from his care, and told Lang he could return to work on a light-duty basis.

Between December 1992, and April 1993, Lang did not receive any medical care or treatment. In April 1993, Lang was treated by Dr. D'Silva for lower back pain and radiating pain in his legs. Dr. D'Silva referred Lang to Dr. Giri Gireesan, an orthopedic surgeon. Dr. Gireesan diagnosed an aggravation of Lang's pre-existing condition, and recommended surgery as an option to alleviate his continued pain.

On August 2, 1993, Lang underwent a laminectomy and fusion on his spine. During surgery, doctors discovered that Lang had spondylolysis, a fracture at L4, a condition that was never seen on any prior x-rays or MRI films. Both Dr. Gireesan and Dr. David L. Spencer testified that Lang suffered this new fracture some time between October 16, 1992 (the date of the MRI), and the date of Lang's surgery.

Dr. Gireesan testified that Lang's surgery was successful. After six months of post-operative physical therapy, Dr. Gireesan released Lang from his care on September 20, 1994. Dr. Gireesan told Lang that he could not expect to do excessive work, and that he needed to "baby" his spine. At that time, Dr. Gireesan gave Lang a prescription for pain killers, and Lang did not receive another prescription until November 1995.

Lang testified due to severe back pain since the accident, he has been able to perform daily living activities, but is unable to do any running, lifting or any activity involving prolonged sitting, like long-distance driving.

Lang submitted medical bills totaling $76,593.64,

DISABILITY AND LOSS OF EARNINGS

Lang was ordered off work until November 1992. When Lang returned to work, he was assigned to light duty status. After two weeks, Lang voluntarily took furlough time, and did not work for four and one-half weeks. During that time, however, Lang did not seek further medical treatment. Lang returned to work full time until April 1993, when he was treated by Dr. D'Silva. Lang continued to work until shortly before his surgery in August 1993.

Dr. Gireesan testified that when he was ready to release Lang from his care, he asked Lang if light duty work was available for him . Lang told Dr. Gireesan that no light duty work was available. Based upon this information, Dr. Gireesan concluded that Lang was unable to return to work as a police officer, and the ...


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