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Boehm v. Ramey

April 30, 2002

DIANNA J. BOEHM, PLAINTIFF-APPELLEE,
v.
DAVID RAMEY, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Macoupin County No. 99L21 Honorable Thomas P. Carmody, Judge Presiding.

The opinion of the court was delivered by: Justice Knecht

UNPUBLISHED

Plaintiff, Dianna Boehm, and defendant, David Ramey, were involved in an automobile accident when defendant rear-ended plaintiff's vehicle while she was stopped and waiting to make a left-hand turn. After a jury trial in the circuit court of Macoupin County, plaintiff was awarded $75,000 in damages. Defendant appeals and asserts the following errors: (1) the trial court erred in allowing plaintiff to surprise defendant at trial with opinion testimony not disclosed in pretrial discovery; (2) damages were awarded for past physical therapy, future medical expenses, and lost income without sufficient proof; (3) the jury was instructed as to future loss of normal life and aggravation of a pre-existing condition when insufficient evidence was presented to warrant such instructions; (4) aggravation of pre-existing condition was duplicative of other elements of damages; and (5) doctor's fee for attending an evidence deposition used by plaintiff at trial and costs of transcribing a video deposition for plaintiff's use were improperly assessed against defendant. We reverse and remand for a new trial on damages.

I. BACKGROUND

On July 31, 1998, plaintiff was driving her automobile in Carlinville when she stopped at an intersection to make a left turn. As she waited for oncoming traffic to pass, defendant approached her vehicle from behind and rear-ended plaintiff's car at a low rate of speed. The collision left a minor dent in plaintiff's fender. The only damage to defendant's car was a broken headlight. Plaintiff refused medical treatment at the scene of the accident and left in her car, returning home. She took a nonprescription pain medication and went to bed.

The next morning, August 1, 1998, plaintiff sought medical attention at the local hospital emergency room for pain in her neck and right arm and headache. X rays showed degenerative arthritis in the spine as well as osteophytes, arthritic spurs, in the lower part of her neck. She was told to contact her regular doctor. After leaving the emergency room, plaintiff went to see Dr. Thomas Brown, a chiropractor who had been treating her for approximately a year prior to the accident for "subluxations," or minor misalignments of the vertebrae. Prior to the accident, Dr. Brown had recommended maintenance chiropractic care for the rest of plaintiff's life due to these subluxations.

After examining plaintiff on August 1, Dr. Brown diagnosed subluxations in the neck, muscular spasms, and reverse cervical curve as a result of cervical acceleration-deceleration syndrome or whiplash. Dr. Brown treated plaintiff with ultrasound muscle stimulation, massage therapy, and chiropractic adjustments. He found the pain in plaintiff's muscles diminished but the pain in her ligaments remained strong. Because plaintiff was not responding as well as hoped, Dr. Brown suggested she see a neurologist. Plaintiff went to see Dr. Wesley Betsill on August 31, 1998. Dr. Betsill previously treated plaintiff on December 15, 1988, for severe pain in the base of her neck radiating down the right arm after lifting a heavy load. Dr. Betsill diagnosed acute cervical disc protrusion with right C7 radiculopathy and placed plaintiff in traction in the hospital for two days. Dr. Betsill saw her again in 1994 when she complained of neck pain, and he diagnosed osteoarthritis in her neck. He saw her again in May 1996 when she complained of pain in the neck and numbness in her arm.

When Dr. Betsill saw plaintiff in 1998 he could find no physical abnormalities. She appeared to be a healthy woman; he had nothing to go on except her complaints of pain. He assured her she had not sustained a serious injury in the accident of July 31, because her symptoms were no different from those which had been bothering her for 10 years. Dr. Betsill prescribed pain medication.

Plaintiff left Dr. Betsill's office and went to another neurologist, Dr. M.L. Mehra. Dr. Mehra diagnosed plaintiff as suffering from whiplash and concussion headache. He did not have the benefit of Dr. Betsill's records and admitted in his testimony he had no basis for disputing Dr. Betsill's conclusion plaintiff's symptoms now were no different from those she suffered for the previous 10 years. Dr. Mehra prescribed pain medication and physical therapy. Plaintiff underwent physical therapy at the local hospital throughout 1998. She returned to Dr. Mehra in July and September 1999, still complaining of pain in her neck and shoulder. She returned for physical therapy in September 1999.

In January 2001, plaintiff returned to Dr. Brown's care. At that time, Dr. Brown found plaintiff had decreased range of motion in her cervical spine and was unable to perform daily activities without pain. Dr. Brown diagnosed chronic cervical acceleration-deceleration syndrome. He admitted most of his diagnosis came from plaintiff's subjective complaints of pain and not objective observations. Dr. Brown recommended maintenance chiropractic care for the rest of plaintiff's life.

Shortly before trial, at defendant's request, plaintiff was examined by neurologist Dr. Simon Horenstein. Dr. Horenstein found a slight limitation in the range of motion in plaintiff's neck and some visible osteoarthritis in her finger joints. He concluded the limitation of range of motion in her neck was due to the same arthritic process evident in her finger joints. He stated although there was the possibility of a further test, he did not feel plaintiff would benefit from further diagnosis or treatment.

Plaintiff cleaned houses for a living prior to the accident. After the accident, she was off work completely for three to four months. Due to her fairly constant pain, she had been unable to resume a complete workload and had dropped from cleaning 10 to 13 houses per week to only 3 or 4. She claimed loss of income of approximately $15,000 per year. Plaintiff's medical bills totaled approximately $5,500.

The jury awarded plaintiff a total of $75,000 in damages itemized as follows:

Past pain and suffering $15,000.00

Future pain and suffering 0.00

Past medical expenses 5,500.00

Future medical expenses 5,000.00

Past loss or earnings 30,000.00

Future loss of earnings 0.00

Loss of normal life 4,500.00

Aggravation of pre-existing condition 15,000.00

TOTAL 75,000.00.

At the close of all the evidence, the trial court directed a verdict on liability in favor of plaintiff. Defendant filed a posttrial motion, which the trial court denied. This appeal followed.

II. ANALYSIS

A. Reversible Error Occurred In Admission of Undisclosed Opinion Witness Testimony Contrary to Rule 213

Defendant contends, first, it was reversible error for the trial court to allow surprise testimony from plaintiff's treating-physician witness. At trial, plaintiff called Dr. Brown to testify to plaintiff's treatment, the causation of her injuries and the necessity of future medical treatment. While he was testifying, Dr. Brown was asked by plaintiff's counsel whether there was any relationship between the force of an impact and the severity of the resulting injury. Over objections by defendant, Dr. Brown testified the most damage done to the cervical spine is in lower-speed accidents. This opinion was not disclosed at either Dr. Brown's discovery ...


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