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McGovern v. Kaneshiro

January 27, 2003

ANN MCGOVERN, PLAINTIFF-APPELLEE,
v.
JAMES KANESHIRO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 97 L 4098 The Honorable Allen A. Freeman, Judge Presiding.

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

UNPUBLISHED

James Kaneshiro (defendant) appeals from the judgment of the circuit court of Cook County in favor of Ann McGovern (plaintiff) in this personal injury action, entered following a jury trial. Defendant contends that the trial court erred by denying submission of his special interrogatory which would have provided a check on the jury's assessment of plaintiff's contributory negligence. Defendant further contends that the trial court abused its discretion by allowing the jury to hear the testimony of plaintiff's two physicians because plaintiff failed to properly disclose the content of their testimony during discovery, in violation of Supreme Court Rule 213 (177 Ill. 2d R. 213). For the following reasons, we affirm.

BACKGROUND

Testimony at trial from both plaintiff and defendant established that on May 9, 1996, each was in a separate car driving northbound on Northwest Highway in Chicago, Illinois. The day was rainy and both parties had their windshield wipers on. Plaintiff's car was in the same lane as defendant's and was directly ahead of him. Ahead of plaintiff's car was a mini-school bus driven by the employee of co-defendant N&S Transportation-not a party to the instant appeal. Plaintiff testified that the school bus came to a sudden stop without signaling and she abruptly applied her brakes and came to a stop just behind the bus. On cross-examination, defense counsel elicited evidence that plaintiff may have been aware that school buses turn left from the site of the accident into the school parking lot that abuts Northwest Highway.

Upon seeing plaintiff's brake lights, defendant testified that he also applied his brakes, went into a skid and hit plaintiff's car from the rear. Plaintiff's car then slid into the rear of the school bus. Plaintiff testified that the top of her chest and her shoulders hit the steering wheel upon impact. Plaintiff also testified that she was wearing her seat belt at the time. She further testified that three weeks after the accident, she sought medical treatment from orthopedic surgeon Dr. Jorge Prieto.

In response to interrogatories submitted by defendant during discovery, plaintiff identified Dr. Prieto as a fact witness and indicated that there were, at that time, no opinion witnesses to be presented. In a supplement to interrogatories posed by co-defendant N&S Transportation, plaintiff indicated that Dr. Prieto would provide opinion testimony on the cause of her injuries and on their permanency. A copy of this supplement was also provided to defendant. Dr. Prieto was the subject of both a discovery deposition and an evidence deposition, but the discovery deposition is not a part of the record.

Defendant objected to the admission of Dr. Prieto's testimony, alleging that the disclosure was insufficient under Rule 213. The trial judge allowed Dr. Prieto's opinion testimony on causation. Dr. Prieto's evidence deposition was then read at trial and his testimony indicated that he diagnosed plaintiff as having a rotator cuff injury and prescribed anesthetic injections and exercises. Several months later, Dr. Prieto ordered a scan of plaintiff's shoulder which revealed a rotator cuff tear. The record does not indicate that Dr. Prieto gave any testimony concerning permanency of plaintiff's injury.

Plaintiff also sought to have read into the record the evidence deposition of Dr. Marc Asselmeier, the orthopedic surgeon who ultimately performed surgery on her rotator cuff. Defendant again objected, arguing that Dr. Asselmeier's opinions were disclosed in the same defective manner as were Dr. Prieto's and, therefore, his testimony should be barred. The trial court held that the doctor's opinions about permanency were not properly disclosed and those opinions were redacted from the evidence deposition. Through the redacted evidence deposition, Dr. Asselmeier testified to the surgery he performed, stated that it was without complications, and discussed his postoperative assessment of plaintiff. Plaintiff and her husband did testify to the pain and physical limitations that she experienced before and after surgery.

Prior to deliberations, defendant offered two special interrogatories to check the jury's verdict on plaintiff's contributory negligence. In his appellate brief, defendant provided a record citation for only one of these interrogatories, which read: "Was the Plaintiff immediately before and at the time of the occurrence in question guilty of negligence which proximately contributed to cause her alleged injuries?" The trial court refused to tender the interrogatories. Notably, the jury instruction conference at which the interrogatories were discussed, and ultimately rejected by the trial court, is not a part of the record on appeal.

The jury awarded plaintiff a total amount of damages of $58,261.80, which was reduced to a recoverable amount of $46,609.44 based on its finding in the general verdict that she contributed 20% of the negligence which proximately caused the accident. The jury awarded zero damages for future pain and suffering. This appeal followed.

ANALYSIS

A. Special Interrogatories

First, defendant contends that the trial court erred in refusing to tender either of his two proposed special interrogatories on plaintiff's contributory negligence. Defendant argues that the interrogatories were in proper form and, thus, the trial court had no discretion to refuse to submit them to the jury. While we agree with defendant that the ...


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