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Hendrix v. Stepanek

June 4, 2002

WANDA HENDRIX, PLAINTIFF-APPELLEE,
v.
BONNIE STEPANEK, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County. No. 98-L-626 Honorable A. A. Matoesian, Judge, presiding.

The opinion of the court was delivered by: Justice Hopkins

Released for publication.

WANDA HENDRIX, PLAINTIFF-APPELLEE,
v.
BONNIE STEPANEK, DEFENDANT-APPELLANT.

Appeal from the Circuit Court of Madison County. No. 98-L-626 Honorable A. A. Matoesian, Judge, presiding.

Attorneys for Appellant: Ronald A. Roth, Richard A. Tjepkema, Roth Law Offices, 2421 Corporate Centre Drive, Suite 200, Granite City, IL 62040

Attorney for Appellee: Robert W. Rongey, Callis, Papa, Jackstadt & Halloran, P.C., 1326 Niedringhaus Avenue, P.O. Box 1326, Granite City, IL 62040

The opinion of the court was delivered by: Justice Hopkins

Bonnie Stepanek (defendant) appeals from the trial court's order entered upon the jury's verdict in favor of Wanda Hendrix (plaintiff), awarding plaintiff $80,000 in damages in this negligence action. On appeal, defendant argues (1) that the trial court erred in failing to grant defendant's motion for a mistrial when one of plaintiff's witnesses testified to an undisclosed opinion, (2) that the trial court erred in giving the jury an instruction to consider, when determining damages, plaintiff's loss of a normal life, and (3) that the trial court erred in granting plaintiff's motion for a directed verdict and then instructing the jury that defendant was negligent as a matter of law. We affirm.

FACTS

This case arose from a February 6, 1997, automobile accident in which defendant's car hit plaintiff's car, causing damage to plaintiff's car and injuring plaintiff. At the jury trial, defendant was plaintiff's first witness. The scene of the accident was the busy intersection of St. Anthony's Way (St. Anthony's) and the parking lot of the St. Francis Day Care at about 5 p.m. on a weekday. Defendant testified that this intersection was very busy at this time of day because several doctors' offices are located nearby, as well as the day care facility. At the time of the accident, plaintiff was traveling south on St. Anthony's, and defendant was attempting to make a left turn onto St. Anthony's from the day care parking lot.

Defendant testified that there was a hill on the north side of the intersection, the direction from which plaintiff was traveling, and there was a curve on the south side. Defendant testified that before pulling out, she stopped at least twice while in the intersection. Defendant stopped first to observe the intersection before she got to a sign next to the intersection that would obstruct her view. Defendant claimed that she was able to see up the hill to her north without obstruction before she pulled any further into the intersection. Defendant testified that she looked both ways and saw no vehicles on St. Anthony's at this time.

Although defendant felt that she could clearly see the traffic on St. Anthony's, she testified that she had to inch out into the intersection in order to fully see. Defendant was impeached with her prior testimony that her view was obstructed when she pulled into the intersection. Defendant explained that she did not understand the prior questioning. Defendant testified that she was traveling at about five miles per hour when she pulled onto St. Anthony's and hit plaintiff's car.

As defendant pulled onto the street, she struck the left side of plaintiff's car with the right front bumper of her car. Defendant testified that the accident would not have happened if she had not pulled out when she did. Defendant also testified that plaintiff tried to swerve out of defendant's way but that plaintiff did not have time to stop.

Berkley Frederick York testified that on the day of the accident, he was on his way to pick up his daughter from the day care center when he witnessed the accident. York testified that for a few seconds before the crash he observed both cars, and he thought plaintiff was traveling faster than the speed limit, going about 30 to 40 miles per hour in a 30-mile-per-hour speed zone. York agreed with defendant that the accident would not have occurred if defendant had not pulled out when she did.

Dr. Edward Blair testified by evidence deposition. Dr. Blair is a physician specializing in internal medicine, and plaintiff is an employee for another doctor in the building where Dr. Blair keeps his office. Dr. Blair is plaintiff's primary care physician. Dr. Blair saw plaintiff before the accident on October 11, 1996, at which time he diagnosed her as suffering from migraine headaches and prescribed medication to relieve the nausea associated with those headaches. Dr. Blair testified that he next saw plaintiff on October 6, 1998, one year and six months after the accident. In 1998, plaintiff complained of almost daily headaches, and Dr. Blair diagnosed these headaches as a mixed type, composed of both vascular and muscular components.

Dr. Blair testified that he was aware that plaintiff was involved in a car accident in February 1997, but he did not specifically treat her as a result of that accident. Dr. Blair also testified, however, that as a general rule trauma such as that associated with a car accident can aggravate and accelerate existing problems, such as headaches, and that it can cause other symptoms, such as the neck pain of which plaintiff complained.

Dr. Blair testified that plaintiff did not indicate that the onset of her headaches was related to the 1997 car accident. When asked if he had any opinion about whether the accident caused plaintiff to have migraine headaches, Dr. Blair testified that he did not have any opinion.

Dr. David Schreiber testified in court, even though he had given an evidence deposition earlier. For reasons unrelated to this appeal, this case had been tried previously to a jury, but it ended in a mistrial. Defendant did not object to Dr. Schreiber testifying live, rather than from his evidence deposition, and did not file a motion in limine to bar or limit his testimony.

Dr. Schreiber, a neurologist, testified that Dr. Blair referred plaintiff to him for her headaches. Dr. Schreiber initially saw plaintiff on March 10, 1997, about three weeks after the car accident. Plaintiff described her history of headaches, stating that she began having migraine headaches at age 12 and that these headaches continued about twice a year, lasting two to three days each and usually occurring close in time to her menstrual period. In his testimony, Dr. Schreiber also related plaintiff's description of the car accident:

"Eventually, on or about February 6th, 1997, she was driving her car. She was in a seat belt. It was about 5 [o'clock] in the evening in Alton. She was going down the hill from the hospital, I guess heading towards College Avenue, which is right by the hospital.

A car suddenly pulled out from a parking lot right near there and hit her car on the driver's door. Ms. Hendrix saw it coming, kind of grabbed the steering wheel and tried to swerve to her right, but her car was hit. The impact threw her and her head to the right and then to the left."

Dr. Schreiber testified that plaintiff told him that although she was upset after the accident, she thought she would be okay. However, about three days after the accident, according to plaintiff's statement to Dr. Schreiber, she started having increasing difficulties with her left shoulder and the area between that shoulder and her neck. When these problems would not cease upon her taking the medications previously prescribed to her, Dr. Blair referred plaintiff to Dr. Schreiber.

Dr. Schreiber testified that when he saw plaintiff, she was having several problems, including daily neck pain, headaches in the back of her head, and aching in her head, all of which increased as a day went by. When Dr. Schreiber examined plaintiff, he noticed a muscle spasm in the neck and the area below it between the shoulder blades. Dr. Schreiber testified that this is an objective symptom, one that he could actually see and feel, as opposed to a description of pain, which he could not see or feel and which a patient would have to describe for him to know about it. Dr. Schreiber testified that these muscle spasms were not something plaintiff could fake. Dr. Schreiber found a limited range of mobility in plaintiff's neck, a significant weakness in the left shoulder muscle, and decreased sensation in her left shoulder area. Dr. Schreiber tentatively diagnosed plaintiff as suffering from muscle and ligament damage to her neck, nerve-root damage to her shoulders, and a cervical strain that resulted from the car accident.

Dr. Schreiber testified that the pain plaintiff was experiencing in her neck and shoulders could cause her migraine headaches to increase. Dr. Schreiber admitted that he testified earlier in a deposition that plaintiff's migraines were not caused by the accident. Dr. Schreiber explained that plaintiff did not have migraines caused by the stress of the accident itself but that her previously existing migraines might have been exacerbated by the pain from the neck and shoulder injuries she received in the car accident. Dr. Schreiber testified that, to a reasonable degree of medical certainty, the damage to the muscles ...


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