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Kinzinger v. Tull

May 17, 2002

HARRY A. KINZINGER, JR., PLAINTIFF-APPELLEE,
v.
ROBERT A. TULL, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Champaign County No. 98L293 Honorable John G. Townsend, Judge Presiding.

The opinion of the court was delivered by: Justice Turner

Released for publication.

In September 1998, plaintiff, Harry A. Kinzinger, Jr., filed suit against defendant, Robert A. Tull, alleging defendant negligently operated his vehicle causing an automobile accident that resulted in injuries to plaintiff. After defendant confessed liability, the trial court held a September 2000 jury trial on the sole issue of damages, and the jury awarded plaintiff $900,000.

Defendant appeals, asserting (1) plaintiff's counsel made improper comments during voir dire and opening statements implying defendant's admission of liability restricted plaintiff from presenting certain evidence to the jury, (2) plaintiff's counsel in his closing argument improperly commented on defendant's failure to call opinion witnesses, (3) the trial court erred by allowing plaintiff to testify regarding an injury that was not causally connected to the accident, and (4) the damages award was excessive and unsupported by the evidence. We affirm as modified.

I. BACKGROUND

On November 2, 1996, plaintiff was driving his pickup with his wife, Susie Kinzinger, when defendant in his pickup struck the back of plaintiff's pickup. At the time of the accident, defendant was going about 70 miles per hour and still accelerating, while plaintiff's speed was between 30 and 35 miles per hour.

In September 1998, plaintiff filed a complaint against defendant, and in September 2000, defendant admitted liability.

At the September 2000 trial on the issue of damages, plaintiff and his wife testified, and the evidence depositions of four witnesses who provided health-care treatment to plaintiff were read to the jury. Plaintiff also read portions of defendant's evidence deposition to the jury because defendant was not present at the trial.

Dr. Richard Foellner, an osteopathic physician and one of plaintiff's primary physicians, testified he examined plaintiff on November 19, 1996. During that examination, plaintiff, who was 47 years old at the time of the accident, told Foellner that following the November 2, 1996, accident he was taken to Carle Foundation Hospital (Carle). He was released that same day but returned the next day. Neck X rays performed at Carle were normal. Plaintiff reported immediately after the accident, he experienced pain in his head, neck, left knee, and left eye, and had difficulty focusing his vision. The day after the accident, plaintiff experienced some memory loss and was unable to walk in a straight line. Foellner completed a neurological examination and found plaintiff was "unsteady" on his feet. Because he was concerned about possible internal bleeding, he ordered a computerized axial tomography (CAT) scan. The CAT scan was normal.

During a November 21, 1996, follow-up appointment, plaintiff told Foellner he was still experiencing some dizziness. Foellner diagnosed plaintiff as having a concussion and a cervical spine strain, with some underlying age-related arthritis. Foellner explained cervical strain results from a sudden force being exerted upon inelastic tissue. To treat that condition, he performed osteopathic manipulative therapy on plaintiff's neck and shoulders. Foellner also opined plaintiff's concussion and cervical strain were causally connected to the November 2, 1996, accident.

Foellner next saw plaintiff on November 26, 1996, at which time plaintiff was still experiencing some head pain but felt better overall. When Foellner saw plaintiff again on February 5, 1997, plaintiff reported he had been experiencing daily headaches over the past four or five days. Foellner referred plaintiff to another osteopathic physician, Dr. Kappler, who examined plaintiff on March 11, 1997, and noted significant restriction in plaintiff's skull, neck, upper back, and rib areas.

On May 21, 1997, plaintiff reported to Foellner he was still having some mid-back pain, which Foellner opined could have been related to the automobile accident. At that time, Foellner referred plaintiff to Dr. Youngerman, an ear, nose, and throat specialist, because plaintiff had numbness around his left ear. The last time Foellner saw plaintiff for injuries related to the accident was in September 1997. Foellner stated plaintiff's disability from the accident appeared to last through March 1997. From the date of the accident through September 1997, Foellner billed plaintiff a total of $727. At the end of 1997, Foellner referred plaintiff to Dr. Eric Kivisto, an osteopathic general surgeon, because plaintiff had a breast mass.

Kivisto testified he first examined plaintiff in September 1998. During that examination, plaintiff reported that about two months after the accident, he developed a painful swelling in his right breast. Kivisto removed the mass and performed a biopsy, which revealed the lump was a benign, fatty growth. The surgery resulted in a two-centimeter-long permanent scar. Kivisto opined that striking a seat belt or a steering wheel during a car accident could cause such a growth. However, he noted other possible causes for the mass existed as well. He also stated no permanent disability was associated with the growth or its removal and no follow-up treatment was expected.

Dr. Joseph Alper, a neuropsychologist, testified he evaluated plaintiff on two occasions during November and December 1999, following a referral from plaintiff's counsel. According to Alper, neuropsychology is a board-certified specialty within the field of psychology that "deals with the treatment and assessment of the cognitive, emotional, [and] social influences of central nervous system dysfunction." During the evaluation, plaintiff reported that in the November 2, 1996, accident, he hit the back and top of his head and suffered a cut on the corner of his eye. He did not lose consciousness but became dizzy and fell over. He also did not suffer any memory loss regarding the events surrounding the accident. Plaintiff also told Alper that following the accident, he had problems with (1) his memory (in particular, difficulty remembering tasks), (2) memory attention (losing his train of thought), (3) communicating his thoughts and ideas, including "word[-]finding difficulties," (4) writing with his dominant right hand, and (5) balance. He also described subtle difficulties with his speech, and his wife described some subtle personality changes in plaintiff. At the time of the November 1999 evaluation, plaintiff and his wife felt all of plaintiff's difficulties had been "subjectively resolved."

Alper later administered several neuropsychological tests to assess plaintiff's sensory, perceptual, motor, visual, and spatial skills, his intellectual, memory, and language abilities, and his executive functions. ("Executive functions" refers to a cognitive system within the brain that regulates and utilizes one's intellectual resources.) Alper testified plaintiff had some very mild relative impairments with the upper-right extremity and "slightly lower performances on some sensory, motor[,] and cognitive functions that are associated with the left hemisphere" of the brain. Alper stated the results were consistent with the symptoms plaintiff experienced following the accident. Plaintiff's cognitive abilities were within the broad range of average, and the only testing that fell in the borderline range was a portion of the test relating to "executive functions," specifically dysfunction in cognitive and motor functioning associated with the left hemisphere and language processing. Those dysfunctions might affect plaintiff's ability to plan, persevere, and accomplish goals in his farming occupation. Alper opined plaintiff would permanently remain in the same condition he was in at the time of the 1999 evaluation. He also opined plaintiff's problems could be related to the November 2, 1996, accident.

Dr. Jack Walz, a dentist who specializes in treating oral facial pain and both temporomandibular (jaw) joint and sleep disorders, testified that on April 27, 2000, he examined plaintiff. During that examination, plaintiff complained of jaw shifting when he was chewing, jaw fatigue after chewing, and jaw joint noises. Plaintiff reported he did not know how long his jaw had been shifting, but he had noticed it over the past three to five months. Plaintiff also reported a "plugging" sensation in his left ear, which he had been experiencing since shortly after the accident. Walz's examination revealed a grinding noise in plaintiff's left jaw joint, tenderness of his left jaw joint, unusual wear patterns on his teeth indicating grinding of his teeth, and a nodule on his lip (caused by biting his lip during uncoordinated jaw movements). Walz diagnosed plaintiff as suffering from degenerative jaw joint disease. Walz prescribed an oral appliance to reduce pressures applied to the jaw joint. He suggested plaintiff wear the appliance at night for the rest of his life. The appliance, which costs approximately $1,000, generally lasts between four and six years; however, they sometimes last as long as eight years or as short as two years. Walz also stated he will need to follow up with plaintiff once a year, at a cost of about $50 per annual visit.

Walz opined the most likely cause of plaintiff's jaw problems was the November 2, 1996, accident. Walz stated that although it was unusual for problems to manifest several years after an occurrence, it was possible that plaintiff had been experiencing some, if not all, of his symptoms for quite a while before he noticed them. Walz also stated plaintiff's jaw joint disease may cause him pain in the future and render him more susceptible to arthritis and injury. Walz acknowledged that a 1998 incident, in which plaintiff was hit in the face with a piece of wood, was a possible cause of his degenerative jaw joint disease.

Plaintiff testified he had been a farmer since 1975. Before that time, he obtained a bachelor of arts degree in economics and attended three semesters of law school. Plaintiff stated the impact of the automobile accident caused his head to break the back window and dent the back window frame. His left elbow, left knee, left eye, and chest hit other parts of his truck during the crash. After the accident, he experienced difficulty with his vision, difficulty writing with his dominant right hand, difficulty walking in a straight line, and a plugging sensation in his left ear.

Plaintiff also testified Foellner referred him to Dr. Kenneth Renner, who examined a painful knot on his left elbow. Prior to the accident, he had no problems with his jaw or growths on his body. Plaintiff stated he did not recall telling Alper his problems had been resolved at the time of his November 1999 evaluation. He acknowledged he no longer had any vision problems, but he has to "hyperfocus" to retain information. Plaintiff also acknowledged he was able to conduct his day-to-day business and personal affairs and, other than Alper, he had not seen a specialist for his head injury.

Plaintiff's wife testified she was in the truck with plaintiff at the time of the accident in question. Although plaintiff did not lose consciousness, he fell over onto her lap. After the accident, plaintiff had a lot of difficulty remembering things he had known his entire life. He had a hard time expressing himself and making decisions. He still had difficulty processing information quickly and remembering directions. She also noticed plaintiff's personality had changed since the accident in that he was more quiet. She recalled telling Alper plaintiff's more serious problems had been resolved at the time of the November 1999 evaluation.

Plaintiff's exhibit No. 1 showed past medical expenses totaling $15,347.83.

Based on this evidence, the jury awarded plaintiff $900,000, as follows: $100,000 for past and future medical expenses, $500,000 for pain and suffering, and $300,000 for disability.

Defendant filed a motion for a new trial or a remittitur, which the trial court denied following a January 2001 hearing. This appeal followed.

II. ANALYSIS

A. Plaintiff's Counsel's Comments During Voir Dire and ...


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