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Gwen Klingelhoets v. Stacia Charlton-Perrin

January 10, 2013

GWEN KLINGELHOETS,
PLAINTIFF-APPELLEE,
v.
STACIA CHARLTON-PERRIN,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 08 L 335 The Honorable Clare Elizabeth McWilliams, Judge Presiding.

The opinion of the court was delivered by: Justice Fitzgerald Smith

JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Presiding Justice Lavin and Justice Epstein concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff-appellee Gwen Klingelhoets (plaintiff) brought a negligence action against defendant-appellant Stacia Charlton-Perrin (defendant) arising from an automobile accident. Following a jury trial, the trial court entered judgment on the verdict in favor of plaintiff and against defendant in the amount of $713,601.82. Defendant now appeals, contending that the trial court erred in allowing plaintiff to make "repeated and unfair attacks" in opening statement and closing argument, in not permitting defendant to call a certain witness, in denying her motions to bar two other witnesses, and in allowing the jury to hear testimony that plaintiff did not continue with treatment because of its cost. She also contends that the jury's verdict was against the manifest weight of the evidence. Defendant asks that we reverse the judgment entered upon the jury verdict and remand with directions to grant a new trial or a remittitur. For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 On October 25, 2006, defendant, who was trying to make a right turn in her sport utility vehicle (SUV) at an intersection from Northbrook Shopping Mall onto Lake-Cook Road in Northbrook, Illinois, struck plaintiff, who was walking across the street. Defendant admitted liability, but disputed plaintiff's injuries and damages, including her claim of future medical costs. Accordingly, the cause proceeded to a jury trial on these issues.

¶ 4 Before trial began, defendant filed three motions relevant to this appeal. The first was a motion to bar the testimony of one of plaintiff's medical expert witnesses, Dr. Robert Kohn. Plaintiff disclosed that she would be calling Dr. Kohn to rebut the testimony of defendant's medical expert, Dr. Richard Galbraith. Defendant objected, claiming that Dr. Kohn's testimony was not true rebuttal evidence but, instead, only cumulative opinions to those of plaintiff's other medical expert, Dr. Mary Jane Chaisson. After briefing, the trial court denied defendant's motion to bar Dr. Kohn.

¶ 5 The second relevant motion filed by defendant was a motion to quash the evidence depositions of Janet Dobbs and Rachel Yarrow. Plaintiff had taken these depositions before trial, as Dobbs and Yarrow, her co-workers, were present during the accident. However, after defendant admitted liability, plaintiff decided she would not be calling Yarrow as a witness and would only be calling Dobbs, since only Dobbs had actually seen the accident and could testify regarding the nature of the impact. At this point, defendant withdrew her motion to quash before a ruling was entered and told the trial court that she might want to use Yarrow's deposition at trial. The trial court denied defendant's request to call Yarrow.

¶ 6 Defendant's third pretrial motion at issue was a motion to bar the testimony of Carol Heerema, plaintiff's co-worker and friend, regarding plaintiff's mental status and processes when she saw plaintiff 10 days after the accident. Defendant claimed this constituted medical opinion testimony from a lay witness and, thus, lacked an adequate foundation and was improper. Following argument, the trial court denied defendant's motion and ruled that Heerema could testify as to what she observed about plaintiff after the accident.

¶ 7 The cause then proceeded to trial. Plaintiff testified that she lives in Minnesota and was in Northbrook, Illinois, on business as a sales representative for a medical company specializing in neurological rehabilitation products. She was 47 years old at the time of the accident and was the company's most productive salesperson; she was also very active in social and sporting activities with her husband. With respect to the accident, plaintiff averred that she was walking with several co-workers to attend a dinner at a restaurant when she entered a crosswalk on a green light and was struck by defendant's SUV. She did not remember the impact or whether she lost consciousness, only that she was lying on the pavement on her back and had pain in her head, neck, shoulder and leg. She declined treatment from paramedics at the scene and attended the dinner with her co-workers. However, after a short time at the restaurant, she began to feel ill and she returned to her hotel, where she vomited. Dobbs then took her to the emergency room.

¶ 8 Plaintiff further testified that she flew back to Minnesota the day after the accident and stayed home from work for a few days, without improvement. She suffered from severe headaches and became sensitive to light and sound. She would get lost, lose her balance and was unable to sleep. She went to her family doctor, to a chiropractor, and then to Dr. Chaisson in December 2006, who also referred her to a physical therapist. She returned to work, but noticed that she was performing slowly and needed to relearn things she knew well. Her memory and concentration worsened and she became unable to perform her job functions. She eventually had to change jobs and now works as an occupational therapist. She currently still sees Dr. Chaisson and a physical therapist, but she is in pain on a daily basis and cannot perform her activities to the same level she did before the accident.

¶ 9 Dobbs testified that she is plaintiff's co-worker, is a specialist in training neurologically impaired patients, and was walking with plaintiff and some 10 to 15 other co-workers to attend a dinner at the time of the accident. As Dobbs was about to enter the crosswalk, she heard an automobile gun its engine. She then looked up and saw defendant in her SUV and on her cell phone, trying to turn into the intersection; plaintiff was already in the crosswalk several steps ahead of Dobbs. Dobbs saw defendant hit plaintiff, who folded over the front of the SUV and was thrown back about 10 feet, landing sitting up outside the crosswalk with her legs extended out but then falling backwards and hitting the back of her head on the pavement. Defendant exited her SUV and approached the scene, but then walked away, all the while talking on her cell phone. Dobbs further testified that plaintiff had cuts on her forehead and a bruise on her leg but had not lost consciousness. She confirmed that plaintiff denied treatment at the scene and instead went to the restaurant with her co-workers. Soon thereafter, she became shaky and Dobbs accompanied her to the emergency room. After plaintiff was discharged, hospital staff asked Dobbs to stay with her, telling Dobbs that plaintiff had a head injury and needed to be monitored.

¶ 10 Dr. Scott Cooper testified that he treated plaintiff when she arrived at the emergency room. Plaintiff had been hit by an SUV on her left side and had struck her head on the car. She had a contusion on her forehead, and she complained of headaches and had vomited. Dr. Cooper noted that plaintiff did not report a loss of consciousness and was, at the time, alert, calm and oriented with no cognitive difficulties. A CT scan of her head was normal, and he did not see any neurological problems at that time. Dr. Cooper diagnosed plaintiff with having sustained a head injury and exhibiting symptoms akin to having suffered a mild concussion, in addition to injuries to her neck, shoulder and leg.

¶ 11 Mark Klingelhoets, plaintiff's husband, testified that, before the accident, plaintiff was a happy and active person, participating in various sports and outdoor activities, including hiking, biking and skiing. After the accident, however, plaintiff suffered from memory problems and her reaction to things seemed delayed. She gets very frustrated, cannot make decisions and sleeps a lot. While she still works full-time and participates in certain activities, he described her as "lost" and constantly requiring pain medication before performing any activities.

¶ 12 Carol Heerema, an occupational therapist, co-worker and friend of plaintiff's for 25 years, testified that, before the accident, she knew plaintiff to be a high-functioning, intelligent and confident person; plaintiff often gave lectures as part of her job which Heerema attended. Heerema saw plaintiff some 10 days after the accident at a business conference and observed that she seemed confused, was having trouble mentally and was just not "acting like herself." For example, plaintiff could not remember Heerema's name and Heerema had to help her navigate her way around the conference because plaintiff could not follow a map. Heerema averred that she "had never seen [plaintiff] act that way before." Some time later, after plaintiff had changed jobs, Heerema saw her again, several times. During their visits, Heerema noted that plaintiff was slower to respond, made mistakes, had difficulty with her memory and lacked confidence. She testified that plaintiff "just wasn't the same person anymore."

¶ 13 Defendant testified that, at the time of the accident, she was exiting the mall and was attempting to turn right after having stopped at a signal. It was dark, and she looked to the right and left of her. Just as she took her foot off the brake and began to accelerate, she hit plaintiff with her SUV while plaintiff was crossing the street. Defendant denied being on her cell phone at the time of the accident, but averred that she never saw plaintiff or any of her 15 co-workers before hitting her. She further testified that she did not see the actual impact or whether plaintiff hit her head or was thrown. She stated that she called 911 and her boyfriend and exited her vehicle, finding plaintiff sitting up on the pavement in the crosswalk directly in front of her car.

¶ 14 The medical evidence presented at trial was lengthy. Dr. Chaisson, plaintiff's treating neurologist, testified that she began seeing plaintiff in December 2006 upon referral. She reviewed all of plaintiff's medical records, including her emergency room visit, her primary care records and her chiropractic records. Plaintiff presented with symptoms associated with head injury, including nausea, neck pain, light and sound sensitivity, and daily headaches; she had a "hard time" recounting the accident. Upon an initial neurological examination, Dr. Chaisson found that plaintiff had obvious neurologic deficits, including memory issues and clumsiness, along with eye pain and difficulty sleeping; this concerned her, particularly because the accident had occurred two months earlier. In addition to her suspicions regarding bad cervical whiplash and internal disc derangement, she diagnosed plaintiff with a closed head injury, prescribed her medication, and referred her to a physical therapist.

¶ 15 Dr. Chaisson saw plaintiff again in January 2007. She still had multiple headaches and described a decreased ability to think. Dr. Chaisson performed an examination and found that, while plaintiff was calm and orientated, she still had a lot of pain, especially in her neck and head, and showed a sensitivity to light and sound, as well as frustration and trouble concentrating. She noted that plaintiff had to change jobs because of her pain. An MRI showed abnormalities in her cervical discs. During follow-up visits through 2007, plaintiff continued to complain about headaches and pain, particularly in her neck. She was unable to perform certain activities she had done before the accident and had persistent problems with memory and concentration; she was in pain on a daily basis. By 2008, plaintiff still had the same complaints and had adopted "a new lower level of function"; in addition to the headaches and decreased memory and concentration, she had fatigue, decreased endurance, intermittent numbness and still experienced sensitivity to light and sound. The results of a neuropsychological exam were technically within normal range, but below expectation for plaintiff, suggesting abnormality. Dr. Chaisson stated that all these persistent symptoms were consistent with a closed head injury.

¶ 16 Dr. Chaisson further testified that plaintiff will continue to have daily pain, which she will have to find some way to manage. She will permanently have problems with short-term memory and concentration. She will also continue to experience numbness, neck pain and difficulty sleeping, and currently has depression and takes various medications. Dr. Chaisson stated that these symptoms are "not expected to get better" and are "going to be more of a problem over time." Ultimately, Dr. Chaisson diagnosed plaintiff with a "concussive type blow to her head which has resulted in a closed head injury" directly caused by the accident, and that her injury is "permanent" and "unlikely to get any better at this point." Dr. Chaisson also stated that plaintiff will require future medical care "just to maintain her at a relatively comfortable level," and detailed this, as well as its costs, for the jury.

¶ 17 Briefly, physical therapist Mark Bookhout testified that he treated plaintiff on referral from Dr. Chaisson in January 2007. She presented with neck pain and headaches and, while her X-rays and CT scan were negative, he diagnosed her with a significant whiplash injury. Plaintiff continued with therapy through December 2008 and improved; however, she still had the same medical problems with which she began treatment. Plaintiff returned to Bookhout in September 2009, as referred by Dr. Chaisson, and completed treatment in December 2009 with some improvement. Bookhout further testified that plaintiff's head and neck pain were caused by the accident, that her condition was permanent and that she would require future treatment.

¶ 18 Dr. Kohn, a board-certified neurologist and plaintiff's retained medical expert witness, testified that he examined plaintiff both physically and mentally and took a detailed history, examining her medical records and radiological films. Based on all this, Dr. Kohn opined that plaintiff had suffered a mild traumatic brain injury, a concussion and major depressive disorder secondary to such an injury. He also ordered a brain imaging study called a SPECT, a special test that, though not definitive, provides an objective study and with which he was very familiar. The result of plaintiff's SPECT was consistent with the trauma she suffered in the accident where she hit her head. Her neuropsychology testing was also abnormal, suggesting problems with certain brain areas consistent with this trauma. Dr. Kohn noted that all of her symptoms after the accident were akin to those of a mild traumatic brain injury and postconcussion syndrome, with which he ultimately diagnosed her. He stated that plaintiff's injuries were permanent, including the limited range of motion in her neck, her cognitive and emotional difficulties, and her headaches and neck pain; she also had torn cervical ligaments and depression. Dr. Kohn further testified that plaintiff would require future medical care and treatment, and he detailed this for the jury.

¶ 19 Dr. Galbraith, defendant's retained medical expert witness, testified that he has been a board-certified neurologist for some 45 years and has worked at the Mayo Clinic, has had dozens of staff appointments at different hospitals, was a clinical professor and has published several articles. Currently, he does not treat patients, but does only "medicolegal consulting" work on legal cases. He classified himself as an independent contractor who works for several legal consulting companies and averred that 99% of his work is for the defense. He also described that he is paid for his consultation work and expert testimony, and he discussed his rates for the jury.

ΒΆ 20 Regarding plaintiff, he testified that he saw her twice and had read Dr. Kohn's report. He was in agreement that plaintiff had hit her head on the hood of the SUV, but disagreed that she had hit her head on the pavement. He opined that plaintiff had a head trauma but had not suffered a head injury. When he first saw her in 2007, he believed she suffered from cervical neck strain, shoulder strain and headaches, but did not consider any of these to be permanent injuries. He then saw her again in 2008 at which time he deciphered notes from an MRI to be normal. While he noted that she was still suffering from neck pain and headaches, he considered her balance to be normal and did not think she had light sensitivity because she was not wearing sunglasses. He opined that Dr. Chaisson's records indicated plaintiff was fine and her neuropsychological tests were within normal range. He refuted any diagnosis that plaintiff had suffered a closed head injury, a ...


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