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Martin v. Sally

July 03, 2003


Appeal from the Circuit Court of Winnebago County. No. 00-L-20 Honorable Janet Clark Holmgren, Judge, Presiding.

The opinion of the court was delivered by: Justice Byrne


Plaintiff, Kathleen M. Martin, filed suit against defendant, Joel D. Sally, seeking to recover damages for personal injuries allegedly sustained from a motor vehicle accident. Defendant admitted negligence but denied that plaintiff's pre-existing injury was aggravated from the accident and denied that plaintiff sustained any injuries by the accident. After hearing the evidence, the jury returned a verdict in favor of defendant. We affirm.


Before trial began, both parties filed motions in limine. Plaintiff's motion requested that the trial court bar defendant from eliciting testimony from his expert engineering witness, Mark Strauss, that no human could be injured in this type of occurrence and that plaintiff could not have been injured in this occurrence. The trial court denied her motion.

Defendant's motion in limine requested that plaintiff be barred from presenting evidence that, following the collision, her son was crying, was claiming to have been injured in the accident, was taken by ambulance to the hospital, or was evaluated and treated. Plaintiff argued that the evidence was relevant because she would be testifying at trial that she was so concerned at the time of the accident that her son might be injured due to his recent appendectomy surgery that she focused her attention on her son's condition rather than her own, and she therefore did not complain of any injuries to the investigating police officer at the scene of the accident. The trial court granted defendant's motion.

Based on the trial court's ruling that defendant could present testimony from his engineer that no human body could have been injured in the accident, plaintiff filed a motion in limine in which she sought to be allowed to present in rebuttal the testimony that her son was crying, he claimed to have been injured, he was taken by ambulance to a hospital, and he received treatment at the hospital for possible injuries. The motion was denied.

The trial court, however, allowed plaintiff to make an offer of proof on the issues as to why she did not complain of her own injury at the scene of the accident and as to whether the impact was such that a person could have been injured in the accident. Plaintiff testified that her 11-year-old son, Cory, was a front seat passenger in the van at the time of the accident. At the moment of impact, she witnessed his body move back and forth. Immediately after the accident, she had a brief conversation with defendant, and when plaintiff finished speaking with him, she noticed Cory crying. She noticed that Cory's head was down and he was leaning forward. Cory told her that his back and neck hurt. Plaintiff "freaked out," wondering what to do, because Cory had just undergone an appendectomy weeks before. Plaintiff then called 911 and an ambulance took Cory to the hospital. Cory was evaluated and released that same day. Cory was "uncomfortable" and took a Tylenol but never required any further medical care.

The following facts were presented at trial. On July 10, 1998, plaintiff was driving a 1990 Dodge Caravan westbound on Halsted Street in Rockford and brought her van to a stop at a red light at the intersection of Huffman Boulevard. Cory was seated in the front passenger seat of the van. Defendant was driving a 1988 Chevrolet 1500 pick-up truck westbound on Halsted Street behind plaintiff. It had been raining and the pavement was wet. As defendant approached the red light at the intersection, he saw plaintiff's van in front of him. He applied the brakes, but his tires began skidding on the wet pavement and the front of his truck struck the rear of plaintiff's van. According to defendant, his truck was traveling between five and seven miles per hour when it "squarely" impacted the rear end of plaintiff's van.

Following the accident, both plaintiff and defendant left their vehicles and looked to see if there was any damage. Plaintiff's van was equipped with a trailer hitch at the time. Both parties agreed that there was no damage done to either vehicle, although defendant did see a small dimple in his license plate. Plaintiff admitted that she told defendant that she was all right and she did not complain of any symptoms at the time.

Prior to the accident, plaintiff twice had injured her back while working, once in 1997 and again in March 1998. Plaintiff injured her back on a third occasion in April 1998, while helping her family move. Following these injuries, plaintiff was treated by Drs. Robert Porter, Melinda Carter, and Charles Wright. An MRI of plaintiff's lumbar spine taken on May 6, 1998, showed a disc protrusion at the L4-L5 level. Because of the back injury in April, plaintiff had stopped working and she was not working at the time of the accident at issue. Plaintiff had been in physical therapy treatment and taking medication as prescribed by Dr. Wright due to her injury.

Plaintiff did not seek any medical attention on the day of the accident or within three days following the accident. She admitted telling the therapist on July 13, 1998, that she was feeling gradually improved. On July 14, 1998, four days after the accident, plaintiff attended a physical therapy appointment, which had been scheduled before the accident. She did not see Dr. Wright after the accident until August 6, 1998, and that appointment also had been scheduled before the accident. Plaintiff continued going to her regularly scheduled physical therapy appointments.

Plaintiff explained that her back and neck were sore from the accident but because she already was under a doctor's care and already was taking pain medication, she did not go to a doctor or hospital for extra care. Plaintiff noticed that her symptoms were getting progressively worse, more than she had ever experienced. Immediately before the accident, plaintiff had been improving to the point where she was feeling like returning to work on a part-time basis.

Dr. Carter, plaintiff's family practitioner, ordered a second MRI of the lumbar spine, which was taken on July 23, 1998. When she ordered the second MRI, Dr. Carter was not aware that plaintiff had been involved in the accident on July 10, 1998. On August 11, 1998, plaintiff's surgeon, Dr. Wright, performed a lumbar discectomy at the L4-L5 level.

At trial, Dr. Wright testified for plaintiff by way of an evidence deposition. He opined that the surgery he performed was causally related to the accident at issue. On cross-examination, however, Wright conceded that his initial clinical examination of plaintiff on May 15, 1998, did not correlate with the MRI of the lumbar spine that had been done on May 6, 1998, because he expected to see a greater degree of disc protrusion and more nerve root compression to the left side. Wright also conceded that any type of heavy physical exertion such as gardening can cause a disc protrusion to progress.

Wright further testified on cross-examination that when he initially gave his opinion that the accident aggravated plaintiff's injuries, as shown by the preaccident and postaccident MRIs, plaintiff had not given him any specific information about the accident. He did not know whether it was a front-end or a rear-end collision or the severity of the impact between the two vehicles. When questioned, Wright admitted that the greater the force of trauma, the greater the likelihood of having a disc protrusion progress and that the lighter the impact between the vehicles, the less likely it would be for a disc protrusion to progress. Wright observed that if, in fact, a patient experienced progression of a disc protrusion as a result of a single traumatic event, it is more common than not that the patient would notice increased symptoms immediately following the impact or quite shortly thereafter. After viewing the photographs of the vehicles, defense counsel asked whether it remained "very possible that [plaintiff's] disk was not injured or aggravated in any way as a result of the accident at issue?" Wright responded that, if he was going solely on the basis of the presence or absence of damage to the vehicles, that would be a "fair statement," although it ignored certain variables that could magnify or limit the effect of an impact, and that information was unavailable.

By way of a videotaped evidence deposition, defendant called Dr. Steven Delheimer. Delheimer believed that plaintiff had degenerative disc disease, which can produce herniated discs or disc bulges and which can progress or worsen with age. In comparing the preaccident and postaccident MRIs of plaintiff's lumbar spine, Delheimer believed that there was not a significant difference between them. He believed that the extruded disc fragment seen by Wright during the surgery performed on plaintiff was probably present in May 1998 before the accident at issue. He also believed that the surgery performed on plaintiff would have become necessary even if plaintiff had not been involved in a motor vehicle accident, because of the degenerative disc disease and the fact that the extruded disc fragment was probably present in May before the accident. Delheimer explained that symptoms of pain can "wax and wane on their own," and an example of this was in plaintiff's medical records, which revealed that on July 9, 1998, she reported to her ...

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