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Estate of Rosemary Oglesby, George Oglesby v. William Berg and the Chicago Park District

March 28, 2011


Appeal from the Deceased, Circuit Court of Cook County. No. 02 L 8377 Honorable Vanessa Hopkins, Judge Presiding.

PRESIDING JUSTICE Hall delivered the judgment of the court, with opinion.

Justices Hoffman and Rochford concurred in the judgment and opinion of the court.


The defendants, William Berg and the Chicago Park District, appeal from a judgment entered on a jury verdict awarding damages to the plaintiffs, the estate of Rosemary Oglesby, George Oglesby and George Oglesby II, a minor. The plaintiffs were injured in a collision between a park district van, driven by Mr. Berg, and a Chevy Impala, driven by Mrs. Oglesby. Her son, George Oglesby (Mr. Oglesby) and grandson, George II, were passengers in the Impala.

On appeal, the defendants raise the following issues: whether the trial court's denial of their request for an exhibit to go to the jury room requires a new trial on damages, and whether the trial court should have granted a remittitur of the damages awarded to the estate for Mrs. Oglesby's pain and suffering and loss of a normal life. As this appeal concerns only the damages suffered by Mrs. Oglesby, we will concentrate our discussion on the evidence pertaining to her injuries and the results therefrom.


The accident occurred on September 23, 1998, at the intersection of Marquette Avenue and Lake Shore Drive.*fn1 At the time of the accident, Mrs. Oglesby was 60 years old and suffered from cancer. In 2000, Mrs. Oglesby died from complications due to cancer, and her estate was substituted as a party. Trial of the personal injury suit took place on September 23, 2008.

Mr. Oglesby testified that the impact of the collision was severe; the park district's van flipped over and the Impala was destroyed. Mrs. Oglesby's face hit the windshield. The plaintiffs were taken by ambulance to Jackson Park Hospital for treatment. While not specifically stated in the record, it appears the plaintiffs were released from the hospital the same day as the accident. When Mrs. Oglesby left the hospital, her head was bandaged.

Mr. Oglesby testified that Mrs. Ogle Silverman and Dr. Volkening. Following the accident, Mr. Oglesby moved in with Mrs. Oglesby to care for her, as she was no longer able to maintain her residence on her own. Mrs. Oglesby was in pain from the accident and required medication. On cross-examination, Mr. Oglesby testified that Mrs. Oglesby was taking medication prior to the accident.sby was seen by Dr.

Several exhibits were admitted into evidence during Mr. Oglesby's testimony. The plaintiffs' exhibit No. 10 was a billing statement from Dr. Silverman, dated October 12, 1999. According to the statement, Mrs. Oglesby was initially seen by Dr. Silverman on September 25, 1998, two days after the accident. She had 12 brief office visits between September 26 and October 27, 1998. During that time, she was treated with hot packs and joint mobilization. The total charges were $1,410.

Dr. Silverman testified via his evidence deposition.*fn2

Testifying from his medical notes, he related that he conducted an examination of Mrs. Oglesby and then had her tested by Dr. Volkening, a chiropractic doctor. Based on his own examination and Dr. Volkening's test results, Dr. Silverman diagnosed Mrs. Oglesby as suffering from muscle spasms in the her neck and back areas. She had also sustained acute contusions to her knees and left hand, as well as an abrasion on that hand. While Mrs. Oglesby suffered trauma to the left side of her head, the result from the neurological test was within the normal range. She sustained secondary limitation of forward and backward motion in her neck area, which intensified with activity. She was also suffering pain as a result of these conditions.

Dr. Silverman noted that Mrs. Oglesby had received an injection for pain at the hospital and also received prescriptions for Motrin and Flexeril. Dr. Silverman prescribed rest and avoidance of strenuous activity, a course of physical therapy and sitz baths. She was to sleep on a firm surface and wear a Stryker collar, a soft neck collar to immobilize her neck.

Dr. Silverman testified that he continued to see Mrs. Oglesby periodically. According to his medical notes, he last saw her on October 8, 1999. At that time, Mrs. Oglesby had no complaints relating to the accident. The doctor released her with instructions to come back as needed. He acknowledged that Dr. Volkening had performed a second test on Mrs. Oglesby on October 27, 1998; the test results indicated significant improvement in her range of motion and muscle strength.

In closing argument, the plaintiffs' attorney requested an award of $75,000 for loss of a normal life and $85,000 for Mrs. Oglesby's pain and suffering, arguing as follows:

"During the period of time after September 23rd, 1998 until October of 1999, Rosemary continued to be under the care of Dr. Silverman. She was not effectively released from further care ...

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