Brown v. Chicago & North Western Transportation Co.

516 N.E.2d 320, 162 Ill. App. 3d 926, 114 Ill. Dec. 165, 1987 Ill. App. LEXIS 3454
CourtAppellate Court of Illinois
DecidedOctober 6, 1987
Docket86-2235
StatusPublished
Cited by34 cases

This text of 516 N.E.2d 320 (Brown v. Chicago & North Western Transportation Co.) 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
Brown v. Chicago & North Western Transportation Co., 516 N.E.2d 320, 162 Ill. App. 3d 926, 114 Ill. Dec. 165, 1987 Ill. App. LEXIS 3454 (Ill. Ct. App. 1987).

Opinion

PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

Plaintiff-appellee Milton Brown brought suit against his employer, the Chicago and North Western Transportation Company (North Western), pursuant to the Federal Employers’ Liability Act (FELA), 45 U.S.C. sec. 51 et seq. (1982), to recover damages for personal injuries he sustained while in the course of his employment. North Western admitted its liability; therefore, the only issue at trial was that of damages. The jury returned a verdict in favor of Brown in the amount of $175,000, itemizing his damages as follows: $107,000 for the value of past and future earnings lost, $50,000 for pain and suffering, and $18,000 for disability.

North Western appeals, and presents the following issues for review: (1) should the trial court have instructed the jury on Brown’s duty to mitigate his damages; (2) did the trial court err by allowing the jury to award Brown damages for future lost earnings without reasonably certain proof that such damages would be sustained in the future; (3) did the trial judge abuse his discretion when he precluded North Western from impeaching Brown’s credibility with a 1977 burglary conviction; (4) should the trial court have required expert economic testimony as a precondition to an award of damages for future earnings lost; and (5) were the damages awarded either excessive or inconsistent? We reverse the decision of the trial court and remand the case for a new trial.

A review of the record discloses that on February 15, 1985, Brown commenced the instant suit against North Western, alleging that on January 10, 1985, he was employed as a coach car cleaner and was assigned to mop the first floor of a bi-level commuter car while another employee, David Williams, inspected the second level. According to Brown, Williams placed a claw hammer on a shelf which was nine feet above the floor where Brown was working, and as the men performed their respective tasks, the hammer somehow fell and struck Brown on the right side of his lower back. North Western denied the factual allegations asserted in Brown’s complaint, and initially proffered the affirmative defense that Brown’s conduct was the sole and proximate cause of his injury. Later, however, North Western stipulated that it was liable for the injury. The parties were unable to agree on a dollar figure as to damages, however, and trial ensued on that issue alone.

At trial, Brown testified that he tried to continue working after being struck by the hammer, but could not endure the pain emanating from his back. He reported the incident to his supervisor, who in turn referred him to Dr. Thomas Cook of North Western’s medical department. After conducting a physical examination, Dr. Cook directed Brown to go home, rest, and return to work on Monday, four days later. Upon his return on the day indicated by the doctor, however, Brown still complained of pain; consequently, North Western sent him to the Northwestern Hospital Emergency Room, where he was treated for one hour and released with instructions to see Dr. Proctor Anderson.

Brown subsequently visited Dr. Anderson on January 18 and 25, and the doctor prescribed bed rest and muscle relaxants to relieve his pain. Dr. John Hefferon, an associate of Dr. Anderson’s retained by North Western as an orthopedic consultant, also examined Brown on January 22. Dr. Hefferon is certified by the American Board of Orthopedic Surgery and is a teaching associate in that specialty at various Chicago area hospitals. He testified on behalf of North Western that when he examined the patient he did not detect any bruises, puffiness, or discoloration on Brown’s lower back area. He then asked Brown to perform a variety of motion tests consisting of bending and stretching exercises, and the results indicated that Brown suffered a 50% loss of mobility. However, he claimed that Brown tested normal on reflex tests and other physical examinations which did not require Brown’s cooperation for accurate results. On the basis of these observations, Dr. Hefferon diagnosed Brown as having a “lumbar contusion,” or a bruise of the lower back, though he did not believe that the injury was a serious or chronic condition. Brown testified that Dr. Hefferon advised him on February 15 that he could return to work.

Instead of returning to work, Brown consulted Dr. Jamie Bendersky, who admitted him to Westlake Community Hospital on February 19, 1985. During a seven-day stay at Westlake, Brown was subjected to a battery of tests designed to determine the source of his discomfort. The results of these tests, however, consistently indicated that there was nothing objectively wrong with him. Brown thereafter underwent physical therapy on an outpatient basis through April of 1985, at which time he reported some improvement in his condition. Frustrated at his inability to find the cause of Brown’s pain, Dr. Bendersky referred Brown to Dr. Edward Gordon, head of the Rehabilitation Department at Westlake Hospital.

Dr. Gordon graduated from Harvard College and Tufts Medical School, has been certified in physical medicine and rehabilitation since 1962, and has published 57 articles in professional journals and other publications. On Brown’s behalf, he testified that he performed a neurological and orthopedic examination on Brown on November 18, 1985, detected an “involuntary hyperesthetic reflex action,” and concluded that Brown was suffering from “hyperesthesia,” or an abnormal sensitivity of the senses. He also observed a “bulging mass” on Brown’s back, and opined that it was scar tissue remaining from the contusion caused by Brown’s being struck by a falling object. As therapy for the injury, Dr. Gordon prescribed injections of steroids and anesthetics, and Brown subsequently received four such injections on an outpatient basis over a six-week period.

In Dr. Gordon’s expert opinion, Brown’s injury precluded any employment which predominantly involved lifting, standing, or walking. He stated that during his entire practice, he had never seen a “soft-tissue” injury like Brown’s and that he knew of little data available by which to predict the course of the injury. Accordingly, he concluded that Brown’s physical limitations could be permanent in nature, but he also admitted that Brown might recover and be able to resume his old job, though he did not say or could not tell when.

In addition to Dr. Gordon, other experts testified on Brown’s behalf. For example, Dr. Yassiliki Toulious, a psychiatrist, testified that beginning in July 1985, he treated Brown for severe depression which he believed was the result of a post-traumatic stress disorder exacerbated by his prolonged medical treatment and inability to work. Dr. Toulious encouraged Brown to pursue the employment and rehabilitation opportunities offered by North Western. Judith Sher, a vocational rehabilitation counselor employed in the Chicago firm of Rehabilitation Management, Inc., also testified that Brown retained her in March and April of 1986, approximately 15 months after the injury, for the purpose of evaluating Brown’s employment prospects. Noting that Brown earned approximately $27,000 annually before his injury, she believed that the salary of jobs which Brown could hold given his physical limitations ranged from $10,400 on the low side to $18,000 on the upper scale.

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Bluebook (online)
516 N.E.2d 320, 162 Ill. App. 3d 926, 114 Ill. Dec. 165, 1987 Ill. App. LEXIS 3454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-chicago-north-western-transportation-co-illappct-1987.