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Miyagi v. Dean Transportation, Inc.

Court of Appeals of Illinois, First District, Fourth Division

June 20, 2019

SHERRI MIYAGI, Plaintiff-Appellee and Cross-Appellant,
v.
DEAN TRANSPORTATION, INC., Defendant-Appellant and Cross-Appellee.

          Appeal from the Circuit Court of Cook County No. 14 L 774 Honorable Thomas V. Lyons II, Judge Presiding.

          JUSTICE REYES delivered the judgment of the court, with opinion. Presiding Justice McBride concurred in the judgment and opinion. Justice Gordon specially concurred in the judgment and opinion.

          OPINION

          REYES JUSTICE.

         ¶ 1 Plaintiff Sherri Miyagi was visiting a Walgreens pharmacy when she was injured by a hand truck operated by an employee of defendant Dean Transportation, Inc. (Dean). Plaintiff filed a complaint, alleging negligence and respondeat superior against defendant. Prior to the jury trial, defendant admitted its negligence and a trial was held on the issues of causation and damages. Following the trial, the jury awarded plaintiff $2.4 million in noneconomic damages, $300, 000 for past medical expenses, and $7.3 million for future medical expenses.

         ¶ 2 Defendant filed a posttrial motion, seeking a judgment notwithstanding the verdict, a new trial on all issues, a new trial on damages only, or, in the alternative, a remittitur of all but $5703.68 of the future medical expenses award. The trial court denied defendant's request for a judgment notwithstanding the verdict and for a new trial. The trial court did, however, grant defendant's request for a remittitur but in the amount of $3.65 million, which represented 50% of the jury award for future medical expenses.

         ¶ 3 Defendant now appeals arguing that the trial court abused its discretion in remitting only 50% of the jury's $7.3 million future medical expenses award and that the trial court erred in denying the motion for a new trial. Plaintiff cross-appeals, maintaining that the trial court abused its discretion when it entered the remittitur and requests this court reinstate the jury's full award of $7.3 million for future medical expenses. For the reasons that follow, we affirm the judgment.

         ¶ 4 I. BACKGROUND

         ¶ 5 The facts surrounding plaintiff's injury are uncontested. Because the appeal is limited to the issue of the propriety of the jury's award of future medical expenses and the remittitur, we set forth only those facts relevant to this appeal.

         ¶ 6 At trial, plaintiff presented the testimony of Dr. Timothy Lubenow and Dr. Ira Goodman, board certified pain management specialists who treated plaintiff; Dr. Jeffery Coe, plaintiff's retained expert; and herself. Defendant then presented the testimony of Dr. Kenneth Candido, defendant's retained expert; Dr. Mark Shukhman, plaintiff's psychiatrist; Dr. Mindy Nora, plaintiff's treating physician; and Dr. Howard Stone, plaintiff's podiatrist. This testimony, along with evidence presented at the trial, established the following facts.

         ¶ 7 On March 26, 2012, plaintiff, a 50-year-old dentist at the time of trial, was visiting a Walgreens pharmacy to pick up a prescription. As plaintiff walked away from the pharmacy counter, she was struck in the right leg by a hand truck operated by one of defendant's employees. The hand truck was so overloaded with crates of milk that the employee's view was blocked. That evening, when the pain from the incident did not decrease, plaintiff visited the emergency room and was treated for a contusion. The following day, plaintiff met with her general physician, Dr. Nora, who examined the right leg and discovered a contusion and informed plaintiff it could take some time for the bruise to heal. Six weeks later, the pain in her right leg increased and had spread to her right foot. Plaintiff then engaged in physical therapy for her right leg and foot, which failed to alleviate the pain. Plaintiff then was examined by a podiatrist, Dr. Stone, who referred her to Dr. Goodman, a pain medicine specialist.

         ¶ 8 After a thorough examination, Dr. Goodman diagnosed plaintiff with complex regional pain syndrome (CRPS), a neurological pain condition that can result from an initial trauma. The body then responds to that particular traumatic event whereby the nervous system amplifies the pain message received from that injured part of the body. Dr. Goodman prescribed morphine for plaintiff's pain and scheduled a follow-up visit. When plaintiff's pain did not subside over time, Dr. Goodman performed a series of sympathetic nerve blocks and radiofrequency ablations (burning of the nerve). These treatments decreased plaintiff's pain but only temporarily. Plaintiff later began experiencing similar pain in her left leg and foot, which is known as a "mirror image spread," which, according to Dr. Goodman, is not uncommon in individuals with CRPS. Dr. Goodman then performed a series of sympathetic nerve blocks and radiofrequency ablations aimed at plaintiff's left extremity. Plaintiff experienced mixed success with these treatments, and Dr. Goodman recommended that plaintiff undergo a trial period for the use of a spinal cord stimulator, a medical device that delivers a mild electronic current to one's spinal cord to interfere with the pain signals sent to the brain from the pain source. Plaintiff reported that her pain decreased with the trial spinal cord stimulator and, with Dr. Goodman's approval, she had a permanent spinal cord stimulator implanted to combat the pain.

         ¶ 9 Dr. Lubenow, who also treated plaintiff for CRPS, testified that plaintiff was currently taking morphine for pain and that over time patients build up tolerances to this kind of medication. According to Dr. Lubenow, plaintiff will require higher doses of medication over time and that dependence is a natural corollary in this situation. Dr. Lubenow also testified that plaintiff will need pain medication and the spinal cord stimulator for the rest of her life. This testimony was corroborated by Dr. Coe, a vocational rehabilitation specialist.

         ¶ 10 Even with the spinal cord stimulator and pain medications, plaintiff was not able to resume a fully functioning life. Plaintiff could only walk short distances and was not allowed to drive an automobile with her spinal cord stimulator in use. Plaintiff still practiced dentistry, but instead of seeing 50 patients a week, she could only see between 6-10 and had to cancel patient visits when she was in terrible pain. The pain further isolated her from family and friends. Whereas prior to her injury she had a close relationship with her family and friends, plaintiff was no longer able to maintain that relationship with them due to the pain. She even kept a refrigerator and microwave next to her bed so she could prepare her meals without leaving the bed. Plaintiff also experienced sleeplessness at night and fatigue during the day. Plaintiff became depressed and sought the services of a psychiatrist, Dr. Shukhman.

         ¶ 11 The heart of this appeal, however, does not revolve around plaintiff's pain and suffering or loss of a normal life, but instead pertains to the testimony of plaintiff's physicians and medical experts who testified regarding the extent of her future medical expenses. Dr. Lubenow, a pain management specialist, testified that plaintiff has a permanent and progressive form of CRPS which will require pain medications and management of her spinal cord stimulator for the rest of her life. In regard to the spinal cord stimulator, Dr. Lubenow testified that the electrical leads of the spinal cord stimulator, which are anchored deep in the muscle, tend to migrate and if this happens, then plaintiff would need to undergo surgery to adjust the electrical leads. In addition, the batteries in the spinal cord stimulator would need to be replaced once every eight years through a minor surgical procedure. Dr. Coe and Dr. Goodman agreed with the future medical expenses as explained by Dr. Lubenow and opined that plaintiff would need treatment from a pain medicine specialist for the rest of her life.

         ¶ 12 Defendant's expert witness, Dr. Kenneth Candido, opined that plaintiff was not suffering from CRPS but instead had opioid induced hyperalgesia, a condition wherein the opioid pain medication an individual is taking to treat pain in fact makes the pain worse. However, when describing CRPS, he opined that "physical therapy is the mainstay of treatment for CRPS." Dr. Candido further testified that "we see a lot of depression, anxiety, panic and[, ] in some of the cases[, ] post traumatic stress" in patients with CRPS and that if those conditions are not treated the patient will not get better.

         ¶ 13 The defense also presented the testimony of Dr. Shukhman, plaintiff's psychiatrist and an addiction medicine specialist, who testified that plaintiff suffered from depression. He further testified regarding plaintiff's desire to decrease the amount of pain medication she was taking.

         ¶ 14 In regards to plaintiff's past medical expenses, the parties stipulated that plaintiff's physicians would testify to a reasonable degree of medical certainty that the amount of $300, 000 reasonably reflected the necessary charges for medical services related to the March 26, 2012, occurrence. Plaintiff also testified that she was 50 years old at the commencement of the trial and her life expectancy was 99 years of age based on her familial history.

         ¶ 15 In closing arguments, plaintiff stressed that CRPS is a permanent and progressive disease and requested $20 million in total damages. In response, defendant maintained that if plaintiff was able to meet her burden of proof, the damages should be limited to $900, 000. In rebuttal, plaintiff argued that the jury could "extrapolate" her future medical costs based on the amount of her past medical expenses.[1]

         ¶ 16 After being instructed by the trial court, the jury deliberated and returned a verdict in favor of plaintiff for ...


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