Abbinante v. O'CONNELL

662 N.E.2d 126, 277 Ill. App. 3d 1046, 214 Ill. Dec. 772
CourtAppellate Court of Illinois
DecidedFebruary 21, 1996
Docket3-95-0450
StatusPublished
Cited by10 cases

This text of 662 N.E.2d 126 (Abbinante v. O'CONNELL) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abbinante v. O'CONNELL, 662 N.E.2d 126, 277 Ill. App. 3d 1046, 214 Ill. Dec. 772 (Ill. Ct. App. 1996).

Opinion

PRESIDING JUSTICE BRESLIN

delivered the opinion of the court:

The defendant, Kevin O’Connell, appeals from the judgment entered on a jury verdict in favor of the plaintiff, Vanessa Abbinante, in a personal injury suit. The defendant claims that the trial court erred in preventing his expert witness from testifying about axial loading as it related to the plaintiff’s injuries. He also claims that the trial court abused its discretion by using a non-Illinois Pattern Jury Instruction (IPI) that substituted loss of a normal life as an element of damages for the IPI disability instruction. We hold that the defendant’s failure to make an offer of proof regarding his expert’s axial loading testimony resulted in the waiver of that issue. We also hold that the trial court did not abuse its discretion by using the non-IPI loss-of-normal-life jury instruction. We therefore affirm the trial court’s ruling on both issues.

This case arises out of an accident in which an automobile driven by Kevin O’Connell struck 17-year-old Vanessa Abbinante while she was walking on a sidewalk. In his answer to Vanessa’s complaint, Kevin admitted liability but contested the amount of damages. The court held a jury trial on the issue of damages.

In addition to her other injuries, Vanessa demonstrated her abnormal spinal curvature to the jury, both in person and by pictures. She testified that she participated in volleyball, basketball, softball and jogging prior to her injuries. As a result of her injuries, however, she could no longer run or participate in any exercise that involves swinging her arms. Vanessa also experienced difficulty sitting and sleeping. She stated that she had to quit her job as a waitress because she could not carry the trays or stand on her feet for long periods of time. Further, she had to reduce her hours as a hairdresser because she had difficulty holding up her arms.

Vanessa’s expert witness testified at trial that although Vanessa’s spine had compensated for her back injuries, which has allowed her to stand erectly, she will suffer further complications and pain in the future. According to this witness, compensation causes increased stress and force on the vertebral body and creates an imbalance in the spine. He recommended that she undergo corrective surgery in order to prevent further curvature of her spine.

Similarly, Vanessa presented a videotaped deposition of a physician who had treated her. This physician testified that her activities will be permanently limited due to her injury. In addition, Vanessa’s spine is now rigid, allowing her to bend back only 50 degrees, and she has already developed early degenerative arthritis in her lumbar spine. Further spinal changes or degeneration may cause projection into the spinal canal.

Vanessa also presented a videotaped deposition of an obstetrician and gynecologist, who testified that Vanessa would experience problems associated with pregnancy, labor and delivery.

Kevin’s expert witness, Dr. Robert Hall, testified in his deposition that although Vanessa suffered spinal injuries resulting in increased curvature, her spine was relatively normal because it had naturally compensated for the injury. Due to the compensation, the increased curvature in Vanessa’s spine was not likely to cause her any pain and did not increase the risk of additional spinal problems.

At trial, Dr. Hall essentially repeated his deposition testimony. In addition, the following exchange took place during the direct examination of Dr. Hall:

"Q. Now, Doctor, are your [szc] familiar with the term axial pressure?
A. Axial loading?
Q. Axial loading?
A. Yes.
Q. What does that refer to?
A. Axial loading refers to essentially a compression force or something pushing together.
Q. How does that apply to the spine?
A. Well, axial loading is a — .”

At this point in the exchange, Vanessa’s attorney objected, claiming that any opinion on axial loading constituted a new opinion not disclosed in discovery. When the trial court asked what Dr. Hall would say in response to the axial loading questions, Kevin’s attorney stated that he thought Dr. Hall would testify about the basis for his opinion that Vanessa’s spine was well compensated. However, Kevin’s attorney did not specifically state what Dr. Hall’s testimony on this issue would be. Kevin’s attorney also admitted that Dr. Hall had not testified about axial loading at his deposition despite the fact that he was asked to disclose all of his opinions. The trial court then sustained Vanessa’s objection.

Kevin also presented the testimony of Dr. James Meserow, an obstetrician and gynecologist. According to Dr. Meserow, Vanessa would not experience any future problems with pregnancy, labor or delivery as a result of her injuries.

Before the jury was selected, the trial court advised the parties that in Smith v. City of Evanston (1994), 260 Ill. App. 3d 925, 631 N.E.2d 1269, the first district held that jury instructions should be modified by using loss of a normal life as an element of damages rather than the IPI approved disability instruction. (See Illinois Pattern Jury Instructions, Civil, No. 30.04 (3d ed. 1995).) At the conclusion of the trial, the court gave the loss-of-normal-life instruction over Kevin’s objection. The court’s instruction defined loss of normal life as "a person’s diminished ability to enjoy life that the person has experienced which includes a person’s temporary or permanent inability to pursue the pleasurable aspects of life, such as recreation or hobbies.”

The jury returned an itemized verdict for Vanessa in the following amounts:

Loss of normal life: $335,000
Disfigurement: $100,000
Pain and suffering: $240,000
Medical expenses (past and future): $ 85,000
TOTAL $750,000.

Kevin then filed a motion for a new trial, alleging that the court erred in precluding Dr. Hall’s testimony on axial loading and in giving the jury the non-IPI instruction on loss of normal life. The trial court denied the motion and Kevin appeals.

The first issue raised by Kevin is whether the trial court erred in excluding Dr. Hall’s axial loading testimony.

It is well recognized in Illinois that when evidence is excluded, the failure to make an adequate offer of proof in the trial court results in the waiver of the issue on appeal. (People v. Andrews (1992), 146 Ill. 2d 413, 588 N.E.2d 1126

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Cite This Page — Counsel Stack

Bluebook (online)
662 N.E.2d 126, 277 Ill. App. 3d 1046, 214 Ill. Dec. 772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abbinante-v-oconnell-illappct-1996.