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Soto v. Gaytan

April 25, 2000

MARICELA SOTO, PLAINTIFF-APPELLEE,
v.
JUAN GAYTAN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 97--AR--1351 Honorable Terrence J. Brady, Judge, Presiding.

The opinion of the court was delivered by: Justice Geiger

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Following a jury trial, the plaintiff, Maricela Soto, was awarded the sum of $10,008.75 for personal injuries she sustained in an automobile accident with the defendant, Juan Gaytan. On appeal, the defendant argues that the trial court erred in permitting testimony from Dr. Joseph Cicmanec, the plaintiff's treating chiropractor, concerning the permanency of her injuries because Dr. Cicmanec's last examination of the plaintiff was not sufficiently recent to the time of trial. The plaintiff responds that the defendant has waived this issue because he allegedly failed to object to the testimony during the evidence deposition of Dr. Cicmanec. The plaintiff also argues that the testimony concerning permanency was proper.

Prior to trial, the plaintiff had taken the evidence deposition of Dr. Cicmanec. Dr. Cicmanec testified that he had been a chiropractic physician for 21 years. The plaintiff presented to him on October 17, 1995, with pain and stiffness in her spine, mid-back, and low back. Following his first examination of the plaintiff, Dr. Cicmanec diagnosed her as having a "sprain/strain syndrome of the neck, cervical region and a sprain/strain syndrome of the low back or lumbar region." He then began a treatment of "physical therapy modalities," including electrical stimulation, ultrasound, trigger point therapy, and manipulation to the plaintiff's neck and back.

Dr. Cicmanec testified that he had treated the plaintiff on 13 occasions for the neck and back strains between October 26, 1995, and the last day he saw her, which was April 26, 1996. On that day, the plaintiff had low-back pain and stiffness as well as neck and shoulder pain, but "was doing somewhat better." Dr. Cicmanec testified that the plaintiff was not responding to the treatments "to the degree that I would have liked and prognosis was at best guarded."

When the plaintiff asked Dr. Cicmanec whether the plaintiff's injuries in her neck and low back were permanent, the defendant objected. Dr. Cicmanec responded that "if the [plaintiff] continues to have problems in the same areas, similar complaints after this long period of time I think it would be reasonable to assume that it was a permanent condition."

On October 19, 1998, the defendant filed a motion in limine requesting that the plaintiff refrain from presenting evidence concerning her medical prognosis absent testimony from a medical practitioner about a recent examination. The trial court granted the motion in limine. The trial court, however, overruled the defendant's objection to testimony from Dr. Cicmanec concerning the permanency of the plaintiff's injuries.

On October 20, 1998, the jury trial began, and Dr. Cicmanec's deposition, including the testimony concerning permanency, was read to the jury. The trial court entered judgment on a jury verdict in favor of the plaintiff in the amount of $10,008.75 plus costs. The jury itemized the damages as follows:

Pain and suffering from the date of the accident

to present: $5,000

Future pain and suffering: $3,200

Medical care and services: $1,568

Lost wages: $240

The defendant later filed a posttrial motion, alleging that Dr. Cicmanec's testimony concerning permanency was improper because Dr. Cicmanec's last examination of the plaintiff occurred approximately 30 months prior to trial. The trial court denied the defendant's posttrial motion, ruling that "the evidence was sufficient to submit the issue of permanency to the jury."

On appeal, the defendant argues that the trial court erred in allowing the testimony of Dr. Cicmanec concerning the permanency of the plaintiff's injuries. The plaintiff responds that, as an initial matter, the defendant has waived this argument because he failed to object to the testimony during Dr. Cicmanec's evidence deposition and at the time the deposition was read to the jury.

The appellate court may only review the admissibility of testimony for error if the opposing party objected to the testimony at trial. Miller v. Rokita, 131 Ill. App. 3d 774, 779 (1985). From a review of the record, it is clear to us that the defendant did in fact object to the testimony concerning permanency during Dr. Cicmanec's evidence deposition. It is equally clear to us that the plaintiff has caused this court to spend unnecessary time addressing this issue on account of this misrepresentation of the facts in the plaintiff's appellate brief. Moreover, the plaintiff cites no authority that suggests that once an objection in an evidence deposition is ruled upon by the trial court the objecting party must object again when the testimony is read to the jury in order to preserve the objection for appellate review. We are convinced that no such authority exists, as such an absurd rule would frustrate the very reason why evidence deposition objections are ruled upon by the trial court in advance of trial.

Having dispensed with the plaintiff's argument that the defendant has waived the objection to the testimony concerning permanency, we now turn to the merits of whether the testimony by Dr. Cicmanec was properly admitted. The defendant argues that the trial court abused its discretion in admitting the testimony because Dr. Cicmanec's last exam of the plaintiff was not sufficiently recent to the time of trial. The plaintiff responds that Dr. Cicmanec's testimony was ...


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