Kinzinger v. Tull

770 N.E.2d 246, 329 Ill. App. 3d 1119, 264 Ill. Dec. 352, 2002 Ill. App. LEXIS 399
CourtAppellate Court of Illinois
DecidedMay 17, 2002
Docket4-01-0101 Rel
StatusPublished
Cited by4 cases

This text of 770 N.E.2d 246 (Kinzinger v. Tull) 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
Kinzinger v. Tull, 770 N.E.2d 246, 329 Ill. App. 3d 1119, 264 Ill. Dec. 352, 2002 Ill. App. LEXIS 399 (Ill. Ct. App. 2002).

Opinions

JUSTICE TURNER

delivered the opinion of the court:

In September 1998, plaintiff, Harry A. Kinzinger, Jr., filed suit against defendant, Robert A. Tull, alleging defendant negligently operated his vehicle causing an automobile accident that resulted in injuries to plaintiff. After defendant confessed liability, the trial court held a September 2000 jury trial on the sole issue of damages, and the jury awarded plaintiff $900,000.

Defendant appeals, asserting (1) plaintiffs counsel made improper comments during voir dire and opening statements implying defendant’s admission of liability restricted plaintiff from presenting certain evidence to the jury, (2) plaintiffs counsel in his closing argument improperly commented on defendant’s failure to call opinion witnesses, (3) the trial court erred by allowing plaintiff to testify regarding an injury that was not causally connected to the accident, and (4) the damages award was excessive and unsupported by the evidence. We affirm as modified.

I. BACKGROUND

On November 2, 1996, plaintiff was driving his pickup with his wife, Susie Kinzinger, when defendant in his pickup struck the back of plaintiffs pickup. At the time of the accident, defendant was going about 70 miles per hour and still accelerating, while plaintiffs speed was between 30 and 35 miles per hour.

In September 1998, plaintiff filed a complaint against defendant, and in September 2000, defendant admitted liability.

At the September 2000 trial on the issue of damages, plaintiff and his wife testified, and the evidence depositions of four witnesses who provided health-care treatment to plaintiff were read to the jury. Plaintiff also read portions of defendant’s evidence deposition to the jury because defendant was not present at the trial.

Dr. Richard Foellner, an osteopathic physician and one of plaintiffs primary physicians, testified he examined plaintiff on November 19, 1996. During that examination, plaintiff, who was 47 years old at the time of the accident, told Foellner that following the November 2, 1996, accident he was taken to Carle Foundation Hospital (Carie). He was released that same day but returned the next day. Neck X rays performed at Carle were normal. Plaintiff reported immediately after the accident he experienced pain in his head, neck, left knee, and left eye, and had difficulty focusing his vision. The day after the accident, plaintiff experienced some memory loss and was unable to walk in a straight line. Foellner completed a neurological examination and found plaintiff was “unsteady” on his feet. Because he was concerned about possible internal bleeding, he ordered a computerized axial tomography (CAT) scan. The CAT scan was normal.

During a November 21, 1996, follow-up appointment, plaintiff told Foellner he was still experiencing some dizziness. Foellner diagnosed plaintiff as having a concussion and a cervical spine strain, with some underlying age-related arthritis. Foellner explained cervical strain results from a sudden force being exerted upon inelastic tissue. To treat that condition, he performed osteopathic manipulative therapy on plaintiffs neck and shoulders. Foellner also opined plaintiffs concussion and cervical strain were causally connected to the November 2, 1996, accident.

Foellner next saw plaintiff on November 26, 1996, at which time plaintiff was still experiencing some head pain but felt better overall. When Foellner saw plaintiff again on February 5, 1997, plaintiff reported he had been experiencing daily headaches over the past four or five days. Foellner referred plaintiff to another osteopathic physician, Dr. Kappler, who examined plaintiff on March 11, 1997, and noted significant restriction in plaintiffs skull, neck, upper back, and rib areas.

On May 21, 1997, plaintiff reported to Foellner he was still having some mid-back pain, which Foellner opined could have been related to the automobile accident. At that time, Foellner referred plaintiff to Dr. Youngerman, an ear, nose, and throat specialist, because plaintiff had numbness around his left ear. The last time Foellner saw plaintiff for injuries related to the accident was in September 1997. Foellner stated plaintiffs disability from the accident appeared to last through March 1997. From the date of the accident through September 1997, Foellner billed plaintiff a total of $727. At the end of 1997, Foellner referred plaintiff to Dr. Eric Kivisto, an osteopathic general surgeon, because plaintiff had a breast mass.

Kivisto testified he first examined plaintiff in September 1998. During that examination, plaintiff reported that about two months after the accident, he developed a painful swelling in his right breast. Kivisto removed the mass and performed a biopsy, which revealed the lump was a benign, fatty growth. The surgery resulted in a two-centimeter-long permanent scar. Kivisto opined that striking a seat belt or a steering wheel during a car accident could cause such a growth. However, he noted other possible causes for the mass existed as well. He also stated no permanent disability was associated with the growth or its removal and no follow-up treatment was expected.

Dr. Joseph Alper, a neuropsychologist, testified he evaluated plaintiff on two occasions during November and December 1999, following a referral from plaintiffs counsel. According to Alper, neuropsychology is a board-certified speciality within the field of psychology that “deals with the treatment and assessment of the cognitive, emotional, [and] social influences of central nervous system dysfunction.” During the evaluation, plaintiff reported that in the November 2, 1996, accident, he hit the back and top of his head and suffered a cut on the corner of his eye. He did not lose consciousness but became dizzy and fell over. He also did not suffer any memory loss regarding the events surrounding the accident. Plaintiff also told Alper that following the accident, he had problems with (1) his memory (in particular, difficulty remembering tasks), (2) memory attention (losing his train of thought), (3) communicating his thoughts and ideas, including “word[-]finding difficulties,” (4) writing with his dominant right hand, and (5) balance. He also described subtle difficulties with his speech, and his wife described some subtle personality changes in plaintiff. At the time of the November 1999 evaluation, plaintiff and his wife felt all of plaintiffs difficulties had been “subjectively resolved.”

Alper later administered several neuropsychological tests to assess plaintiffs sensory, perceptual, motor, visual, and spatial skills, his intellectual, memory, and language abilities, and his executive functians. (“Executive functions” refers to a cognitive system within the brain that regulates and utilizes one’s intellectual resources.) Alper testified plaintiff had some very mild relative impairments with the upper-right extremity and “slightly lower performances on some sensory, motor[,] and cognitive functions that are associated with the left hemisphere” of the brain. Alper stated the results were consistent with the symptoms plaintiff experienced following the accident.

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Cite This Page — Counsel Stack

Bluebook (online)
770 N.E.2d 246, 329 Ill. App. 3d 1119, 264 Ill. Dec. 352, 2002 Ill. App. LEXIS 399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kinzinger-v-tull-illappct-2002.