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Kathryn L. Vanoosting v. Carl Sellars

June 14, 2012


Appeal from the Circuit Court of Union County. No. 08-L-1 Honorable Mark M. Boie, Judge, presiding.

The opinion of the court was delivered by: Justice Spomer

JUSTICE SPOMER delivered the judgment of the court, with opinion. Justices Welch and Chapman concurred in the judgment and opinion.


¶ 1 The plaintiff, Kathryn L. Vanoosting, appeals from the August 22, 2011, order of the circuit court of Union County which denied her motion for a new trial after a jury verdict in her favor on her complaint for money damages against the defendant, Carl Sellars. On appeal, the plaintiff argues she is entitled to a new trial because: (1) the circuit court prohibited her from testifying that she did not seek further treatment for her injuries in the three years prior to trial because she did not have health insurance, and (2) a zero award for loss of a normal life cannot be sustained by the evidence at trial, especially in light of argument by defense counsel that seeking compensation for loss of a normal life and pain and suffering is "double dipping." For the following reasons, we reverse and remand with directions that the plaintiff be afforded a new trial.


¶ 3 The plaintiff filed a negligence complaint against the defendant on January 3, 2008, alleging that she was injured when the defendant rear-ended her vehicle on March 6, 2006. In the complaint the plaintiff sought damages for, inter alia, past and future pain and suffering, disability, loss of a normal life, and loss of earning capacity. On August 23, 2010, the defendant filed an admission of negligence, and the cause proceeded to trial on the issue of damages only. The circuit court declared a mistrial based on statements made by a juror in chambers,*fn1 and a second trial commenced on January 24, 2011, wherein a jury was impaneled and sworn and voir dire conducted. On January 25, 2011, the jury heard opening statements and the plaintiff presented her case in chief. During her cross-examination, defense counsel elicited from her that she had not been to the doctor for three years prior to trial. On redirect, the plaintiff's counsel asked her if she had health insurance, either at the time of the wreck or presently, and she answered "no." After the plaintiff rested her case in chief, the circuit court declared another mistrial. The basis for the mistrial is set forth in the following docket entry:

"[Eth] Atty's 'health insurance' question posed to the [Eth] in chambers w/ counsel. Ct hears arguments of counsel. A Atty requests that mistrial be ordered while [Eth] Atty argues that jury should be instructed. Ct makes its findings regarding the issue and declares a mistrial."

¶ 4 Another trial was scheduled for April 25, 2011. On February 4, 2011, the plaintiff filed a supplemental motion in limine seeking to introduce evidence that she is not covered by health insurance in response to the defendant's claims that she has sought little or no medical treatment in the last three years. In the alternative, the supplemental motion in limine requested that the defendant be barred from any claim or argument regarding the lack of medical treatment for three years. By a notation made on the supplemental motion in limine following a pretrial conference on April 13, 2011, it appears that the circuit court denied the plaintiff's request to introduce evidence that she did not have health insurance but granted the plaintiff's request that the defendant be barred from claiming or arguing the plaintiff has sought little or no medical treatment in three years.

¶ 5 Before the third trial commenced on April 26, 2011, the circuit court held another in-chambers conference with counsel for both parties. The plaintiff's counsel asked for a clarification on the circuit court's ruling on the supplemental motion in limine. The following colloquy occurred:

"[Plaintiff's counsel]: I'm not clear on the ruling--or on your ruling of my motion that I filed subsequent to the last trial asking leave of the Court to have [plaintiff] testify that she does not have health insurance as the explanation for why she hasn't been back to the doctor in the last three years.

THE COURT: And I think we discussed this the other day, and just didn't make the record. I'm going to stay away from the health insurance issue because--and I think [defense counsel] said--I mean, basically, the only question he's going to ask is, when was the last time you went to the doctor, and not elaborate on why, when, any of those issues. Correct?

[Defense counsel]: That's right. I mean, I want to be very circumspect. *** THE COURT: Well, and you know, obviously, I want to tread lightly on that. We've been down this road before. If it becomes--and I don't think [defense counsel] is going to, but if it becomes an issue, I'll revisit it and ask, and we'll discuss it."

¶ 6 The plaintiff's counsel then reiterated his concern that even the mention of the fact that the plaintiff had not been to the doctor in three years may cause the jury to infer that she is no longer hurt or in pain and that the plaintiff should be able to explain her reasons for not seeking further treatment. The plaintiff's counsel informed the court that he planned to make an offer of proof on the issue at the appropriate time during trial.

ΒΆ 7 Subsequently, the defendant objected to the plaintiff's tendered instruction No. 17, which listed the potential elements of damage the jury could consider. See Illinois Pattern Jury Instructions, Civil, No. 30.01 (2011). The defendant objected to future medical expenses, future pain and suffering, and future loss of a normal life as potential elements of damage, arguing that there was no evidence upon which the jury could base a future award. In response, the plaintiff argued that at least one treating provider made recommendations for future treatment. During the instruction conference, there was another discussion about how to elicit the plaintiff's intent to seek future treatment, the defendant's right to point out the three-year gap in treatment, and the plaintiff's need to explain her reason for not seeking the recommended treatment before. The circuit court gave plaintiff's instruction No. 17 to the jury over the defendant's objection, but admonished the plaintiff's counsel that while he ...

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