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Kayman v. Rasheed

Court of Appeals of Illinois, First District, First Division

April 27, 2015

MARILYN KAYMAN, Plaintiff-Appellant,

Page 428

Appeal from the Circuit Court of Cook County. No. 10 L 14429. Honorable Lynn M. Egan, Judge Presiding.

For APPELLANT: Brustin & Lundblad, Ltd., Chicago, Illinois (Michael A. Shammas and David A. Warnick, of counsel).

For APPELLEE: Brucke, Farrel, Dorn & Associates, Chicago, Illinois (Ellen J. O'Rourke and Rebecca A. Nanney, of counsel).

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Connors concurred in the judgment and opinion.


Page 429


[¶1] Following a jury verdict in the circuit court of Cook County awarding her zero damages for future pain or medical treatment, plaintiff-appellant Marilyn Kayman appeals from various evidentiary rulings and contends that the jury's verdict was against the manifest weight of the evidence.


[¶3] This case arises from a motor vehicle collision on January 30, 2009, in which Kayman's vehicle was was struck from behind by a vehicle driven by defendant-appellee Janice Matthews Rasheed. Kayman went to an emergency room at Hinsdale Hospital shortly after the accident but was discharged on the same day. Due to persistent neck pain and other symptoms, Kayman visited her family physician, Dr. John Conroy, on February 4, 2009. She was subsequently referred by Dr. Conroy to Hinsdale Orthopedics, where she was treated between 2009 and 2012. At the recommendation of Hinsdale Orthopedics, Kayman underwent physical therapy and was also prescribed medical devices to use at home to help alleviate her pain.

[¶4] Kayman sued Rasheed, claiming that the accident had caused her neck and back pain, headaches, and other symptoms. Rasheed admitted negligence in striking Kayman's vehicle, but disputed the extent to which the 2009 collision caused Kayman's alleged injuries. In Kayman's pretrial deposition, she denied any problem with neck or back pain prior to the January 2009 collision.[1] However, medical records revealed that Kayman had complained of neck and back pain in January 2005 and May 2006 and underwent an MRI in 2006 as a result of these complaints. In March 2012, Rasheed's counsel deposed Dr. Conroy. Although he had not been Kayman's physician at the time of these prior complaints, Dr. Conroy was shown medical records corresponding to

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Kayman's 2005-06 neck and back pain complaints and testified regarding these records.

[¶5] On October 16, 2012, the trial court agreed to continue the previously scheduled trial date in order to allow Kayman more time to complete her discovery obligations, including her disclosure of trial witnesses pursuant to Illinois Supreme Court Rule 213(f). Ill. S.Ct. R. 213(f) (eff. July 1, 2002). The court subsequently explained that it granted the continuance out of a " desire to proceed to a trial on the merits rather than precluding plaintiff from presenting certain claims because of discovery violations."

[¶6] Trial was continued to February 11, 2013. On that date, the court heard argument on various motions in limine. Among these motions, Rasheed moved to bar Kayman from presenting a " day-in-the-life" video which purported to show Kayman demonstrating her prescribed daily exercise routine and equipment she used to treat her injuries. Rasheed complained that the video was untimely and cumulative. Kayman acknowledged the video had not been disclosed until about two weeks earlier, but argued it was created recently so as to accurately reflect Kayman's exercise routine as of the time of trial.

[¶7] The trial court barred the video as untimely, noting the trial had been continued in October 2012 " solely because of plaintiff's failure to comply with discovery requests." The trial court remarked that " day-in-the life films need to be disclosed like any other piece of evidence and the issue comes down to whether the disclosure is timely." Although the court acknowledged the desire to demonstrate Kayman's current routine, it nonetheless found disclosure was untimely, especially as the trial date had been continued due to Kayman's lack of compliance with discovery. Thus the court granted Rasheed's motion to bar the video.

[¶8] In another motion, Rasheed argued that Kayman should be barred from seeking damages for lost wages related to time spent attending physical therapy sessions. Rasheed argued that Kayman had admitted she was a salaried employee, that her employer did not penalize her for going to physical therapy sessions, and thus she " didn't suffer any kind of wage loss." Kayman's counsel acknowledged " she was on a salary, she didn't lose her money" but that " she took off time from work during the workday to go get physical therapy." In response to the trial court's questions, Kayman's counsel confirmed that she did not have to use vacation time or sick time but argued she suffered " not a loss of income" but a " loss of time." The court granted the motion to preclude the claim, finding there was no compensable loss in income or benefits.

[¶9] During the same argument, Kayman raised the issue of whether, with respect to Kayman's emergency room records, " the Court will allow [counsel] in closing argument to read from those records if a witness has not specifically been testifying about those records." The court responded that if Rasheed stipulated that these were business records, " they would be admitted and you can comment in closing argument on all admitted evidence and the reasonable inferences therefrom." However, the court further stated that " [m]erely because something is admitted as an exhibit doesn't mean it goes back to the jury room." Rasheed's counsel stipulated on the record that the emergency room records were business records, but stated " we're obviously objecting as to those records being read into evidence."

[¶10] In another motion in limine, Rasheed sought to preclude admission of a photograph showing significant damage to the

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front of Rasheed's car from the impact with Kayman's vehicle. Kayman argued the photo should be admitted to show that " it was a very serious accident" and to demonstrate the severity of Kayman's injuries. Further, as Rasheed had testified in her deposition that her vehicle was only traveling at a speed of five miles per hour at the time of impact, Kayman argued the photograph was also admissible as impeachment evidence.

[¶11] The court held that the photograph of the vehicle damage would not be admissible for the purpose of demonstrating the severity of Kayman's injuries, as it was " beyond the kin [ sic ] of the average juror to correlate it to a particular type of physical injury." However, the court held the photograph would be admissible " to impeach defendant's testimony that the accident occurred when the vehicles were traveling 5 miles per hour," finding that the average juror would understand that the damage shown was " far in excess of what one typically sees with a vehicle traveling 5 miles per hour." The court emphasized the photograph was for impeachment purposes only on the issue of speed but not to be argued as evidence of the nature of Kayman's injuries.

[¶12] The trial court also heard argument regarding the admissibility of the portions of Dr. Conroy's deposition referencing Kayman's 2005-06 pre-accident complaints of back and neck pain. Kayman argued that since Rasheed failed to offer any expert witness testimony suggesting any relationship between the prior complaints and Kayman's current symptoms, the evidence of prior injury was inadmissible. Rasheed countered that, in light of Kayman's deposition testimony denying prior neck or back problems, the excerpts from Dr. Conroy's deposition were admissible for impeachment purposes.

[¶13] The court recognized that Rasheed had not laid a foundation for the 2005-06 complaints to be admitted as substantive evidence, but agreed that " because [Kayman] denied under oath ever having those complaints, it is proper for impeachment purposes." The court specified that Dr. Conroy's deposition could be admissible " for impeachment use only, and it's impeachment on [Kayman's] credibility." The court explained that Kayman had to " pick her poison" in deciding whether she would acknowledge the prior complaints in her trial testimony: Kayman could avoid introduction of Dr. Conroy's deposition if she acknowledged the 2005-06 complaints on direct examination, but the court cautioned that her acknowledgement of prior complaints would also " open herself up to be asked about it" on cross-examination.

[¶14] The case proceeded to trial on February 14, 2013. Kayman first called Rasheed to testify as an adverse witness. Rasheed acknowledged that her vehicle rear-ended Kayman's but testified that she did not recall the speed of her vehicle at the time. In response to counsel's question as to whether she " agree[d] that [her] car was not traveling 5 miles an hour at the time of the impact," Rasheed answered that she did not remember. Kayman's counsel also asked Rasheed to quantify the impact of the collision:

" Q. Now, ma'am, you would agree that the impact between your car and Ms. Kayman's car was significant?
A. Yes.
Q. You would agree that the impact to your car -- from your car to her car was heavy?
A. When you say -- Can you give me a scale? Like ***
Q. Sure. On a scale of one to ten, one being a light tap and ten being a very strong impact, you would agree that it's much closer to ten?

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A. I would have to say I know it's nowhere near one or two or three, but I can't really remember how much stronger it was than that."

After this testimony, Kayman's counsel attempted to introduce the photograph of the damage to Rasheed's car, but was stopped by the court.

[¶15] Kayman's next witness was Dr. Marie Kirincic, a physician employed by Hinsdale Orthopedics specializing in rehabilitation and pain management. Dr. Kirincic stated she had first treated Kayman in November 2010 for neck pain, numbness, and tingling, and she opined that it was more likely true than not that the source of Kayman's pain was the vehicle collision.

[¶16] Dr. Kirincic acknowledged that Kayman went to the emergency room on the day of the accident and followed up on a later date with Dr. Conroy. However, she offered no testimony regarding the findings of those visits. Dr. Kirincic also explained that Kayman had previously been treated by another physician at Hinsdale Orthopedics, Dr. Mark A. Lorenz, in February 2009. With the aid of Dr. Lorenz's notes, Dr. Kirincic explained that an exam at that time revealed " moderate degenerative changes" at the base of Kayman's neck. Dr. Kirincic testified that the degenerative condition " probably" made her more susceptible to injury at the time of the vehicle accident and that the degenerative condition was " probably" aggravated by the accident.

[¶17] Dr. Kirincic further testified that since November 2010 she had treated Kayman for pain in her neck and upper back, muscle spasms, and numbness and tingling in her extremities. She testified that " every few months" in 2011 she had given Kayman " trigger point injections" to relieve muscle tightness in her shoulders and neck. Dr. Kirincic also instructed Kayman to use a " TENS unit," an electronic device using electrodes to relieve muscle spasms. She also testified that Kayman underwent physical therapy and acupuncture and had since continued to attend physical therapy and perform related home exercises. Dr. Kirincic testified that throughout 2012 she continued to treat Kayman for chronic pain in her neck and back of the ...

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