from the Circuit Court of Madison County No. 13-L-1904
Honorable William A. Mudge, Judge, presiding.
Attorneys for Appellant Roy C. Dripps, Charles W. Armbruster
III, Michael T. Blotevogel, Armbruster, Dripps, Winterscheidt
& Blotevogel, LLC,
Attorney for Appellee Michael P. Murphy, Freeark, Harvey
& Mendillo, P.C.,
JUSTICE GOLDENHERSH delivered the judgment of the court, with
opinion. Presiding Justice Barberis and Justice Chapman
concurred in the judgment and opinion.
1 This appeal stems from a two-count complaint brought by
plaintiff, Steven Campbell, to recover damages caused by the
alleged strict liability and negligence of defendant, Kevin
Autenrieb, in failing to keep his dog under control.
Plaintiff's action ultimately proceeded to a jury trial,
where the trial court directed a verdict on liability in
favor of plaintiff and against defendant at the close of all
evidence. The jury returned a verdict of $16, 000 in damages
in favor of plaintiff and against defendant. On appeal,
plaintiff argues (1) the trial court erred in admitting
certain medical testimony regarding potential alternative
causes of plaintiff's injuries and (2) the jury's
award of damages was against the manifest weight of the
evidence. For the following reasons, we reverse and remand
this cause for further proceedings consistent with this
3 The following pertinent testimony was adduced at trial. We
limit our discussion to the evidence necessary to provide
4 A. Plaintiff's Testimony
5 Plaintiff testified that on July 18, 2012, while he was
working for his employer, United Parcel Service (UPS), an
unleashed dog owned by defendant lunged at plaintiff and
"knocked [him] back." Plaintiff injured his back as
a result of the incident. Thereafter, plaintiff went to
Midwest Occupational Medicine to receive medical treatment.
Plaintiff did not finish his work shift that day.
6 Plaintiff returned to Midwest Occupational Medicine eight
days after the incident and reported he was feeling much
better, which plaintiff attributed to the medicine he was
taking. Plaintiff volunteered to take vacation time off work
during this period "to give [himself] every opportunity
to get rid of the pain." Plaintiff testified he was
working again by late July or early August 2012 but was not
performing his regular duties.
7 Plaintiff again returned to Midwest Occupational Medicine
in September 2012 due to recurring back pain. Plaintiff
eventually consulted a specialist, Dr. Kennedy, in November
2012. Dr. Kennedy prescribed plaintiff physical therapy and
injections. Plaintiff testified he followed all of Dr.
Kennedy's instructions. The last day plaintiff was
treated by Dr. Kennedy was March 18, 2016.
8 Plaintiff testified he missed time from work between July
2012 and September 2015. In July 2014, UPS instructed
plaintiff to see Dr. DeGrange, who ordered plaintiff back to
work after conducting an examination. Plaintiff testified he
was not working prior to being examined by Dr. DeGrange. When
plaintiff returned to work, he had not completed all of the
physical therapy prescribed by Dr. Kennedy. Plaintiff worked
for a couple weeks following his appointment with Dr.
DeGrange before injuring his back while moving a deer stand
for UPS. Plaintiff subsequently took a leave of absence from
work and went to see Dr. Kennedy, who recommended physical
therapy and conservative treatment. Plaintiff returned to
work in September 2015.
9 Plaintiff testified that from September 2012 until the
present day, "[t]here isn't a day that goes by that
I don't have pain." Plaintiff described his pain as
a serious bruise in his back and testified he has pain which
radiates down his leg. Plaintiff stated he is able to
function on some days with medication and struggles on other
days. Plaintiff testified he had incurred $200, 000 in lost
wages since the incident. Plaintiff further testified he no
longer vacations and was forced to sell his motorcycle, boat,
and camper as a result of the incident.
10 On cross-examination, plaintiff was impeached based on an
incorrect discovery response to a question regarding whether
plaintiff was able to return to work following the incident.
Plaintiff responded he was unable to return to work and had
not returned to work since the incident, when in fact
plaintiff had worked for a period of time following the
incident. Plaintiff conceded UPS records showed plaintiff
engaged in work activity from August 2012 to April 2013.
Plaintiff also testified that on the day of the incident, he
experienced unbearable pain which he essentially marked as a
"ten out of ten pain." When plaintiff returned to
Midwest Occupational Medicine the day after the incident,
however, he testified he marked his pain level as a 3 or 4
out of 10.
11 Further evidence adduced on cross-examination showed the
physicians who treated plaintiff at Midwest Occupational
Medicine following the incident did not recommend that
plaintiff be taken off work. From April 2013, when plaintiff
took a leave of absence from work, until August 2014,
plaintiff testified the only treatment he received was from
Dr. Kennedy. Also on cross-examination, plaintiff testified
he did not work from October 29, 2014, until September 21,
2015, following an incident in which he was injured while
moving a deer stand at work. Plaintiff testified he did not
agree that it was common for individuals in his employment
position to have bad backs. Plaintiff conceded that no
physician had placed any type of restriction on him at the
time of trial.
12 B. Dr. Kennedy's Testimony
13 Plaintiff presented deposition testimony from Dr. Kennedy,
a board-certified neurosurgeon who initially treated
plaintiff on November 28, 2012. After performing a physical
examination on plaintiff, Dr. Kennedy testified the most
notable findings were that plaintiff had significant
limitation in the range of motion of his back and
plaintiff's ability to bend forward was significantly
reduced. Dr. Kennedy recommended physical therapy in addition
to injections into the areas of particular tenderness in the
muscle groups. Dr. Kennedy continued to treat plaintiff until
early 2016. Dr. Kennedy testified that an MRI conducted early
in plaintiff's treatment showed bulging discs and an
annular fissure. Dr. Kennedy testified it was evident from
the MRI that plaintiff's annulus had been injured, which
he opined was likely a result of the dog incident.
14 Dr. Kennedy further testified he was aware of an
examination of plaintiff performed by Dr. DeGrange in 2014
that recommended plaintiff return to work without
restrictions. Dr. Kennedy testified that Dr. DeGrange's
opinion about plaintiff's ability to return to work was
very different from his opinion, which concluded plaintiff
was not ready to return to work. Dr. Kennedy also testified
regarding the incident in which plaintiff injured his back on
October 29, 2014, as he was delivering a deer stand. Dr.
Kennedy opined this event was not a new injury but an
aggravation of his prior injury. Dr. Kennedy opined that
because plaintiff "never really fully recovered"
from his prior injury, he was "vulnerable to events that
otherwise might not bother him."
15 Dr. Kennedy testified he last saw plaintiff in March 2016.
At that time, Kennedy testified plaintiff was generally able
to function but was not symptom-free and experienced aching
pains. Kennedy opined plaintiff was not medically able to
work for UPS without restrictions from July 18, 2012, the
date of the dog incident, until he released plaintiff to
return to work in September 2015.
16 C. Dr. DeGrange's Testimony
17 Defendant presented deposition testimony from Dr.
DeGrange, a board-certified doctor who first examined
plaintiff in July 2014 at the request of plaintiff's
employer, UPS. Dr. DeGrange testified plaintiff had a chief
complaint of low back pain, and the symptoms were present on
a daily basis. He identified plaintiff's complaint to be
at the lumbosacral area. Dr. DeGrange characterized the
symptoms as "frequently mild, meaning they were
definitely there and noticeable and occasionally moderate
causing significant problems with activities either
professionally or of daily living." Dr. DeGrange's
physical examination of plaintiff concluded he did not look
particularly uncomfortable and he did not have acute
distress. Dr. DeGrange opined the diagnosis of
plaintiff's injury was a lumbar strain. Dr. DeGrange
opined plaintiff reached maximum medical improvement by July
26, 2012, which was eight days after the dog incident, and
plaintiff did not need any additional medical treatment
thereafter. Dr. DeGrange further opined the dog incident may
have aggravated plaintiff's ...