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Thalia Pecaro v. Brian Baer

December 23, 2010

THALIA PECARO,
PLAINTIFF-APPELLANT,
v.
BRIAN BAER,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. Honorable Carol P. McCarthy, Judge Presiding.

The opinion of the court was delivered by: Justice Howse

FIFTH DIVISION

JUSTICE HOWSE delivered the opinion of the court: Plaintiff, Thalia Pecaro, filed a complaint in the circuit court of Cook County claiming damages for personal injuries that occurred when an automobile she was driving was struck in the rear by an automobile driven by the defendant, Brian Baer. The defendant admitted negligence. After a trial on damages, a jury returned a verdict in favor of the defendant. Pecaro appeals from an order of the circuit court denying her motion for a judgment notwithstanding the verdict or, in the alternative, a new trial on the issue of damages only. For the reasons that follow, we affirm the decision of the circuit court.

BACKGROUND

At trial, Pecaro testified she was driving on November 17, 2006, southbound on Cicero Avenue near the intersection at 159th Street when she came to a stop at a traffic light. Pecaro had a passenger in the automobile with her, Steven Tepper, an acquaintance she has known for years. At that time, Pecaro worked as an automobile salesperson and was driving Tepper to an auto mall in Matteson, Illinois, so he could purchase an automobile. While Pecaro was stopped at the light, Tepper noticed that a vehicle behind them did not appear to be stopping. Tepper shouted to plaintiff, "I don't think this guy is going to stop." An automobile driven by defendant Baer struck the rear of Pecaro's vehicle.

Pecaro testified that she looked in her rearview mirror and observed the automobile an instant before she felt two impacts. The plaintiff and Tepper described the first impact as heavy and the second impact as medium. However, Baer testified there was only one impact and the force of the impact was light. Pecaro had her foot on the brake and her vehicle did not hit the vehicle in front of her. Pecaro braced herself before the impact but she testified her knee hit underneath the steering wheel.

Pecaro felt pain in her right knee immediately after the accident. Pecaro testified that she did not have pain in her knee prior to the accident. She had pain in her shoulders when she went to sleep that night. The next morning she continued to have the knee and shoulder pain along with new symptoms of pain in her upper and lower back. She then went to a hospital emergency room where she received X rays on her back and right knee and had her knee wrapped. She was released from the hospital after three or four hours.

The next week she was examined by orthopedic surgeon Dr. Ignas Labanauskas and reported pain in her back and right knee. Pecaro then had an MRI that showed a small disk protrusion with minimal stenosis in her back and minimal joint effusion in her right knee.

Pecaro was examined by Dr. Labanauskas again on December 6, 2006, and he prescribed physical therapy. Pecaro began taking physical therapy.

Pecaro was next examined by Dr. Labanauskas in February of 2006 and again complained of back pain. Her knee pain had subsided but she claimed the knee made a clicking sound when she walked up stairs.

Pecaro was next examined by Dr. Labanauskas shortly before trial on May 27, 2009, claiming she felt numbness in her right leg and "a jolt of pain." Pecaro took an MRI on her lower back that showed she had left sided sciatica, which is an inflammation of the sciatic nerve. Dr. Labanauskas examined her on June 3 and told her she needed to concentrate more on exercises.

Pecaro testified that she missed three to four weeks of work. When she returned to work, she needed co-workers to help her with her duties. Pecaro currently has a new job marketing copier equipment and complains of pain if she sits too long. She testified that pain comes and goes in her back. While she no longer experiences pain in her right knee, she described that she has "a little squishy ball that moves around [her] whole kneecap."

Pecaro testified that since the accident she has difficulty doing certain things she enjoyed prior, such as gardening, bowling, washing the floor on her hands and knees, mowing the lawn, shoveling snow, dancing, sitting at a movie theater, exercising, playing with her daughter, and going on amusement park rides.

On cross-examination, Pecaro testified that automobile salespersons at the dealership where she was formerly employed are required to shovel snow off of the vehicles in the winter. Pecaro testified that after the accident she was unable to shovel snow at the dealership.

When asked about a notation from Dr. Labanauskas concerning an exacerbation of her lower back pain after shoveling snow at work, Pecaro testified that she did not shovel snow at work.

Dr. Labanauskas testified in an evidence deposition that during an examination of Pecaro on February 14, 2007, she reported back pain after shoveling snow at work. Dr. Labanauskas testified that this activity may have aggravated some of her symptoms.

Dr. Labanauskas testified his first examination of Pecaro occurred on November 22, 2006. She reported that she had no prior knee problems. As a result, Dr. Labanauskas opined, to a reasonable degree of medical certainty, that the accident caused her knee pain. Dr. Labanauskas also diagnosed Pecaro as having a slipped disk in her back.

On December 6, 2006, Dr. Labanauskas prescribed physical therapy to treat Pecaro's injuries and placed restrictions on her return to work, primarily so she would avoid pressure on her back, such as excessive sitting, walking, and standing.

Dr. Labanauskas next examined Pecaro on February 14, 2007. She was still having some symptoms, but improving, and he discharged her from his care. She returned to see him nearly two years later on May 27, 2009, and an examination revealed "a little loose body floating in her knee."

Dr. Labanauskas testified:

"[I]t's even about the size of a piece of rice, that was floating around as a loose body in her patella, which is a normal structure on the front of the knee."

The "rice" body may arise from trauma and is more of a nuisance that can be removed through surgery. Pecaro reported new complaints with her back. Dr. Labanauskas next examined Pecaro on June 3, 2009. Dr. Labanauskas testified that he believes some of Pecaro's disk pathology, as found on her MRI, pre-existed the accident.

On cross-examination, Dr. Labanauskas testified that Pecaro did not have any swelling in her right knee on her first visit with him. Dr. Labanauskas could not opine that the minimal joint effusion, the disk protrusion or the stenosis, found on the first MRI, were caused by the accident.

The jury returned a verdict for defendant. Pecaro's motion for judgment n.o.v. or a new trial was ...


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