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Charles Lough, Independent Executor v. Bnsf Railway Company and Leo J. Joerger

May 3, 2013

CHARLES LOUGH, INDEPENDENT EXECUTOR
OF THE ESTATE OF KENNETH LOUGH,
DECEASED,
PLAINTIFF-APPELLANT,
v.
BNSF RAILWAY COMPANY AND LEO J. JOERGER, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of the 13th Judicial Circuit, Bureau County, Illinois, Circuit No. 09-L-40 Honorable Marc P. Bernabei, Judge, Presiding.

The opinion of the court was delivered by: Justice Schmidt

JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justices Lytton and McDade concurred in the judgment and opinion.

OPINION

¶ 1 Defendant Leo Joerger drove a vehicle during the course of his employment with defendant BNSF Railway Company which collided with a vehicle driven by Kenneth Lough. Kenneth died 22 months after the accident. This appeal involves the dismissal of two wrongful death counts brought by plaintiff, Charles Lough, as the independent executor of the estate of Kenneth Lough, against defendants. The circuit court of Bureau County granted defendants' joint motion for summary judgment, thereby dismissing the wrongful death counts. Plaintiff appeals, claiming evidence of causation exists sufficient to withstand defendants' motion for summary judgment.

¶ 2 BACKGROUND

¶ 3 The automobile accident at issue in this matter took place on October 19, 2007. As noted above, it involved vehicles driven by Kenneth Lough and defendant Leo Joerger.

¶ 4 Kenneth Lough was born July 29, 1938. Dr. Martin Faber, Kenneth's primary physician, began treating him in July of 1979. In December of 1978, Kenneth was involved in a snowplow accident, which either caused or contributed to significant neck problems. At the time of Kenneth's first visit to Dr. Faber in 1979, Kenneth already suffered from the onset of chronic obstructive pulmonary disease (COPD), which was likely caused by smoking, a genetic disease or chemical exposure.

¶ 5 Dr. Faber testified in his deposition that at some point in time, Kenneth developed severe depression from which he never truly recovered. Kenneth had been treated for depression as of March of 1985. Kenneth's COPD progressed from 1979 until the time of his death. Dr. Faber noted it was "unrelenting in its severity."

¶ 6 A physical examination in 1979 indicated that Kenneth had right neuroforaminal changes at C5-C6; X-rays taken in 1986 disclosed moderate to marked degenerative changes at multiple levels in his spine, including his neck. Kenneth's depression became "unrelenting" after the death of his wife in 1993. In 1992, Kenneth complained of memory changes. Kenneth had difficulty driving and would routinely get lost when leaving the house. He also forgot names of his children and friends.

¶ 7 Dr. Faber noted that in 1997, Kenneth continued to have severe arthritis problems in his neck and back, which did not resolve prior to his death. Dr. Faber diagnosed Kenneth with "failed low back symptoms" in 2004, which meant that his pain was chronic and unresponsive to surgical or pharmacological remedies. Dr. Faber stated that the health problems Kenneth suffered from prior to the accident were related to a combination of smoking, occupational circumstances, lifestyle, injury and hereditary changes. Prior to the accident, Kenneth's prescriptions included OxyContin for pain, alazopram for depression and sleeping troubles, and inhalers for his COPD.

¶ 8 Dr. Faber stated that given Kenneth's preaccident condition, he was susceptible to increased injury beyond a healthy individual. Any trauma would likely result in greater pain, immobility and inactivity. Dr. Faber noted that a patient who is immobilized and experiencing Kenneth's level of neck and back pain would have problems coughing, leading to difficulty fighting off pneumonia.

¶ 9 Records indicate that Kenneth was taken to Perry Memorial Hospital after the accident. Magnetic resonance imagings (MRIs) that were taken at Perry Memorial showed no acute traumatic abnormality in Kenneth's neck or back following the accident.

¶ 10 When asked about this accident of October 19, 2007, Dr. Faber testified that he "would have a difficult time connecting that particular motor vehicle accident after 22 months with the patient's death." Defense counsel asked Dr. Faber, "Is it more probably true than not in your opinion that there is no connection between the car accident and the man's death?" Dr. Faber replied, "I would have to concur with that." Dr. Faber last examined Kenneth on July 16, 2009, almost one month prior to his death.

ΒΆ 11 Kenneth's son, Chuck, testified that prior to the accident, his father rode motorcycles, hunted with friends, drove around the country, went to breakfast, mowed the lawn and worked in the garden. Chuck noted that on the day of the accident, Chuck called Kenneth, who stated he had just been in an accident. Chuck arrived at the hospital to see Kenneth being removed from an ambulance. Kenneth complained of ...


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