No. 2--96--0643
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
RICHARD J. ZUDER, ) Appeal from the Circuit Court
) of Lake County.
Plaintiff-Appellant, )
)
v. ) No. 94--L--563
MARK W. GIBSON, and ADMIRAL )
HEATING AND VENTILATING, INC., )
Defendants-Appellees ) Honorable
) Jack Hoogasian,
(Palmer S. Lazarus, Defendant). ) Judge, Presiding.
________________________________________________________________
PRESIDING JUSTICE GEIGER delivered the opinion of the court:
The plaintiff, Richard Zuder, brought this action for injuries
sustained when his vehicle was struck from behind by another
vehicle being driven by defendant Mark Gibson. The jury returned
a verdict awarding the plaintiff damages for medical expenses and
pain and suffering, but failed to award any damages for
disfigurement and loss of normal life. In the instant appeal, the
plaintiff requests a new trial on the issue of damages, arguing
that the jury's award of damages was irreconcilably inconsistent
and contrary to the manifest weight of the evidence. The plaintiff
also argues that he was denied a fair trial because of certain acts
of misconduct committed by defense counsel during the trial. We
affirm.
The record indicates that on May 13, 1993, at approximately
1:25 p.m., the plaintiff was operating his vehicle in a northerly
direction on Northwest Highway, approaching the intersection of
Berry Street in Barrington. The traffic signal at the intersection
was red, and the plaintiff brought his vehicle to a complete stop.
Gibson was also operating his vehicle in a northerly direction
on Northwest Highway, and he stopped his vehicle directly behind
the plaintiff. Gibson was employed as a salesman by defendant
Admiral Heating and Ventilation, Inc. (Admiral). At the time in
question, Gibson was on his way from Admiral's offices in Hinsdale
to meet with a client in Cary.
When the traffic signal at the intersection turned green, a
vehicle traveling southbound on Northwest Highway suddenly made a
left-hand turn directly in front of the plaintiff. This southbound
vehicle was being operated by Palmer Lazarus. In order to avoid
contact with Lazarus' vehicle, the plaintiff immediately applied
his brakes, and his vehicle was struck in the rear by Gibson's
vehicle. The property damage to the plaintiff's and Gibson's
vehicles was $1,438 and $1,000, respectively.
Following the accident, the plaintiff moved his vehicle to the
side of the road and was transported by ambulance to Good Shepherd
Hospital in Barrington. The plaintiff's primary medical complaint
was pain in his neck. Following a medical examination and X rays
at the hospital, the plaintiff was released with a neck brace and
prescriptions for pain medication. The plaintiff was also
instructed to follow up with his family physician, Dr. Padmini
Thakkar.
Complaining of persistent neck and shoulder pain, the
plaintiff followed up with Dr. Thakkar on May 24, 1993. Dr.
Thakkar diagnosed the plaintiff's condition as a cervical strain
and prescribed several weeks of physical therapy at Good Shepherd
Hospital. During June 1993, the plaintiff received four physical
therapy treatments from Laurie Kovacs, a licensed physical
therapist. The plaintiff reported that his symptoms were
progressively improving during these treatments and that he had
made a 90% improvement by the time of his discharge from Kovacs'
treatment on June 24, 1993.
During the remainder of the summer of 1993, the plaintiff's
neck and shoulder pain recurred, and he reported that the pain had
begun to radiate down his arm. He remained under Dr. Thakkar's
care and underwent an MRI examination on November 1, 1993. The MRI
report revealed that he had herniated discs at the C5/6 and C6/7
levels and a minimal bulging disc at the C3/4 level. Dr. Thakkar
referred him to Dr. Kanu Panchal for a neuro-surgical consultation.
Dr. Panchal testified that the MRI scan revealed that the
plaintiff had osteophytes (bone spurs) on his spine, which was
indicative of the existence of a condition known as degenerative
disc disease. Dr. Panchal opined that, based upon a reasonable
degree of medical and surgical certainty, the plaintiff had been
suffering from this condition prior to the accident in question.
Dr. Panchal testified that this degenerative condition can result
in bulging and herniated discs even without a traumatic event. He
did acknowledge, however, that it was possible that the trauma from
the accident aggravated the degenerative condition of the spine and
caused the discs to herniate.
On February 10, 1994, Dr. Panchal performed a surgical
cervical diskectomy and fusion on the plaintiff at levels C5/6 and
C6/7. Following the surgery, Dr. Panchal reported that the
plaintiff's pain was reduced and that the tingling and numbness in
his arms was gone. At the plaintiff's last office visit on March
7, 1994, Dr. Panchal reported that, despite some recurring pain,
the plaintiff had fully recovered and would have no permanent
disability.
Dr. Thakkar assisted with the operation performed by Dr.
Panchal. Dr. Thakkar testified that the surgery had been a success
and confirmed the presence of osteophytes along the plaintiff's
spine. She testified that, following the surgery, the plaintiff
continued to have pain and a limited range of motion in his neck.
These complaints had persisted to the date of the trial. Dr.
Thakkar testified that, following the surgery, she could also feel
a knot in the plaintiff's right shoulder blade and that the knot
caused the plaintiff pain. She opined that the plaintiff's
herniated discs, muscle condition, and knot had been caused by the
accident and that the plaintiff's pain and motion limitations were
permanent. She also testified that the surgical scar on the front
of the plaintiff's neck was permanent.
Dr. James Ekeberg testified that he was the plaintiff's family
practitioner prior to the date of the accident in question. During
October and November 1989, the plaintiff saw Dr. Ekeberg,
complaining of neck pain. To alleviate the pain, Dr. Ekeberg
prescribed Valium and Naprosyn for the plaintiff. Between 1990 and
1992, the plaintiff made several telephone calls to Dr. Ekeberg's
office to get prescription refills of these drugs.
The plaintiff testified that, following the diskectomy
surgery, he was in severe pain for four or five weeks and that he
was unable to go to work as a salesman. He testified that his
gross pay was $2,626.93 every two weeks and that he was not paid
for his time off from work. He testified that, as of the date of
trial, he had difficulty turning and bending his neck and that he
had knotting in his right shoulder. He described the knot as
causing a constant pain in his right shoulder, requiring the use of
prescription medications from the time of the accident until the
time of trial. He testified that he had difficulty sleeping at
night and that he had difficulty performing his work. He testified
that his job as a salesman involved air travel two or three days a
week and required that he carry samples, catalogues, and a lap-top
computer. He testified that, since the surgery, he has needed
assistance carrying his materials on business trips and that this
has caused him substantial inconvenience.
On April 26, 1994, the plaintiff filed a negligence action
against Lazarus, Gibson, and Admiral. Prior to trial, Lazarus
settled with the plaintiff in the amount of $98,000. The case
therefore proceeded to trial against defendants Gibson and Admiral.
At the close of the evidence, the trial court granted the
plaintiff's motion for a directed verdict on the issue of agency
between Gibson and Admiral. The jury then returned a verdict in
the plaintiff's favor, itemized as follows:
Past Medical Expenses $ 21,014
Loss of Normal Life 0
Disfigurement 0
Past and Future Pain and Suffering 6,000
Lost Income 10,400
Property Damages 1,438
TOTAL $ 38,852
The jury found the plaintiff 10% at fault, Gibson 40% at fault, and
Lazarus 50% at fault. On February 7, 1996, the trial court reduced
the plaintiff's judgment to zero after taking into account a
$98,000 setoff from the settlement that the plaintiff received from
Lazarus. The plaintiff filed a post-trial motion seeking a new
trial on the ground that the jury's failure to award anything for
loss of normal life and disfigurement was inconsistent with the
remainder of the verdict. The trial court denied the post-trial
motion, and the plaintiff filed a timely notice of appeal.
The plaintiff's first argument on appeal is that the jury's
award, which included damages for medical expenses, lost income,
and pain and suffering, was irreconcilably inconsistent because
there was not a corresponding award for loss of normal life and
disfigurement. The plaintiff argues that, since the jury awarded
virtually all of the submitted medical bills and his entire claim
for lost wages, it necessarily found that his herniated discs and
surgical procedures were proximately caused by the automobile
accident. He argues that the jury disregarded proven elements of
damages when it denied any recovery for loss of normal life and
disfigurement.
A jury's award of damages is entitled to substantial
deference. Snover v. McGraw, 172 Ill. 2d 438, 447 (1996). The
determination of damages is a question of fact that is within the
discretion of the jury. Snover, 172 Ill. 2d at 447. On review, a
jury's award of damages will not be disturbed "unless a proven
element of damages was ignored, the verdict resulted from passion
or prejudice, or the award bears no reasonable relationship to the
loss suffered." Gill v. Foster, 157 Ill. 2d 304, 315 (1993).
The plaintiff directs us to a line of cases which hold that an
award for medical expenses without a corresponding award for pain
and suffering and/or disability and disfigurement requires reversal
per se. See Slavin v. Saltzman, 268 Ill. App. 3d 392, 403 (1994);
Sands v. Glass, 267 Ill. App. 3d 45, 50-51 (1994); Martin v. Cain,
219 Ill. App. 3d 110, 115 (1991); Kumorek v. Moyers, 203 Ill. App.
3d 908, 913 (1990). However, our supreme court recently examined
this line of cases and held that a jury may award pain-related
medical expenses and, at the same time, may also determine that the
evidence of pain and suffering was insufficient to support a
monetary award. Snover v. McGraw, 172 Ill. 2d 438, 448 (1996). In
rejecting the reversal per se rule, the court emphasized that such
a determination turns solely on the facts of the case and that,
under certain circumstances, an award for pain and suffering may be
inappropriate. Snover, 172 Ill. 2d at 448. The court concluded by
reaffirming the traditional rules that a jury's assessment of
damages is entitled to substantial deference and that a ruling on
a new trial is best made by the trial court in a post-trial motion.
Snover, 172 Ill. 2d at 449. A reviewing court should not reverse
the trial court's ruling on a post-trial motion absent an abuse of
discretion. Snover, 172 Ill. 2d at 449.
In the instant case, the jury awarded damages for past and
future medical expenses and for pain and suffering, but failed to
award any damages for loss of normal life and disfigurement. The
Appellate Court, Third District, was presented with this precise
circumstance in White v. Lueth, 283 Ill. App. 3d 714, 717 (1996).
In that case, the plaintiff was struck by a truck, causing him to
lose five teeth. White, 283 Ill. App. 3d at 715. The jury awarded
him $70,000 for past and future medical expenses and for pain and
suffering, but awarded him zero dollars for disfigurement and
disability. White, 283 Ill. App. 3d at 717. The trial court
denied his post-trial motion seeking a new trial on damages.
White, 283 Ill. App. 3d at 716.
On appeal, the White court acknowledged that the case was
different from Snover, but nonetheless held that the facts of the
case presented a compelling reason to reject the reversal per se
rule. 283 Ill. App. 3d at 717. The court commented:
"Here, we do not necessarily have a corresponding nexus
between disability and disfigurement and the other compensable
damage elements. While pain-related medication and treatment
are necessary to combat pain and suffering, disability speaks
to a 'loss of a normal life' [citation] and disfigurement to
an impairment to beauty, symmetry or appearance [citation].
We therefore conclude that an award for past and future
medical expenses and pain and suffering, without an award for
disability and disfigurement, is not reversible per se."
White, 283 Ill. App. 3d at 717-18.
As the plaintiff correctly notes, prior to Snover, this court
repeatedly held that it is inconsistent for a jury to award damages
for pain and suffering but fail to make any award for disability
and disfigurement. See Slavin v. Saltzman, 268 Ill. App. 3d 392,
403 (1994); Sands v. Glass, 267 Ill. App. 3d 45, 50-51 (1994). In
these cases, this court noted that it was inconsistent for the jury
to find that the plaintiff "was injured and that this injury
resulted in pain, medical costs, and lost wages, but that the
injury did not cause disability and disfigurement." Slavin, 268
Ill. App. 3d at 403. We also held that the phrase "disability"
encompassed damages for loss of normal life and was not limited
solely to compensation for permanent disability. Slavin, 268 Ill.
App. 3d at 403.
We agree with the defendants that these precedents must be re-
examined in light of Snover. Under the rule of law articulated in
Snover, a jury has complete discretion to award damages in the
manner it sees fit, provided that the award falls within "the
confines of the evidence." Snover, 172 Ill. 2d at 449. It is then
for the trial court to determine during a post-trial motion whether
the jury's award is supported by the evidence. Snover, 172 Ill. 2d
at 449. The trial court's ruling on a motion for a new trial will
not be reversed unless the trial court abused its discretion.
Snover, 172 Ill. 2d at 449.
An application of these principles to the instant case leads
us to conclude that an award for medical expenses and pain and
suffering, without a corresponding award for disability and
disfigurement, does not warrant automatic reversal. Instead, our
review will be limited to a consideration of whether the jury's
award falls within "the confines of the evidence" and whether the
trial court abused its discretion in ruling on the post-trial
motion. See Snover, 172 Ill. 2d at 449. Therefore, to the extent
that our decisions in Slavin and Sands adopt the reversible per se
rule, they are overruled.
In so ruling, however, we note that our ultimate disposition
in Sands withstands scrutiny under Snover. In Sands, the trial
court granted the plaintiff's motion for a new trial, after it had
determined that the jury had ignored uncontroverted evidence of the
plaintiff's disability. Sands, 267 Ill. App. 3d at 51. We
affirmed the trial court's order, holding that the trial court had
not abused its discretion in determining that the jury's award was
inconsistent with the evidence. Sands, 267 Ill. App. 3d at 51.
This is the precise inquiry mandated by Snover. Snover, 172 Ill.
2d at 449.
Turning to the facts of the instant case, the evidence
presented by the plaintiff relating to the permanency of his
injuries was not uncontroverted. Although Dr. Thakkar testified
that the plaintiff still suffered from a painful muscular problem
in the right shoulder, Dr. Panchal testified that the plaintiff's
injuries were not permanent and that he would be able to resume his
normal life without limitation. It was within the sole province of
the jury to determine the weight and credibility to be given to
this conflicting medical testimony. See Maple v. Gustafson, 151
Ill. 2d 445, 452 (1992). The jury was therefore free to give Dr.
Panchal's testimony greater weight than Dr. Thakkar's.
As the plaintiff correctly notes, he did present some evidence
at trial relating to his loss of normal life. Specifically, he
testified that he suffered from ongoing pain, that he had
difficulty sleeping at night, and that he had difficulty performing
his job as a salesman. However, we also note that, contrary to Dr.
Ekeberg's testimony, the plaintiff denied that he ever had problems
with his neck prior to the accident. Therefore, not only was there
reason for the jury to question the plaintiff's credibility, but
there was also evidence from which the jury could infer that the
plaintiff's change in lifestyle predated the accident.
The only evidence of disfigurement presented at trial was the
surgical incision on the front of the plaintiff's neck. He
exhibited his neck to the jury at the end of his case, and his
attorney used a flashlight to illuminate the surgical incision. In
discussing damages during closing argument, his attorney argued
that the scar was especially disfiguring in light of his occupation
as a salesman. However, the plaintiff did not give any testimony
that the surgical incision caused him either embarrassment or
grief. Nor was there any testimony from any witness that the scar
was noticeable. It was certainly within the jury's province to
determine whether the surgical incision resulted in an invisible
scar. Where a jury can reasonably determine that damages are
minimal, a jury's failure to award damages for disfigurement after
surgery should not be set aside. Simon v. Van Steenlandt, 278 Ill.
App. 3d 1017, 1021 (1996).
In light of this conflicting evidence relating to the nature
and extent of the plaintiff's loss of normal life and
disfigurement, we conclude that the jury's decision not to award
any damages for these categories was within the confines of the
evidence. We note that the jury did award a sum equal to almost
all of the plaintiff's medical expenses and lost wages, as well as
a $6,000 award for pain and suffering. As discussed by our supreme
court in Snover, the jury's computations in determining a dollar
amount for damage categories such as disfigurement and loss of
normal life are especially difficult to quantify and are subject to
compromise. Snover, 172 Ill. 2d at 448. The record contains no
suggestion of mistake, confusion, partiality, or prejudice on the
part of the jury. See Snover, 172 Ill. 2d at 449. Therefore, we
find sufficient evidence to support the jury's verdict awarding no
damages for disfigurement and loss of normal life and conclude that
the trial court did not abuse its discretion in denying the
plaintiff's motion for a new trial. See White, 283 Ill. App. 3d at
718.
For his other argument on appeal, the plaintiff complains of
certain acts of misconduct committed by James Keane, Gibson's
attorney. This misconduct occurred during a brief court recess
during Dr. Thakkar's testimony. During this recess, while the
courtroom was vacant, Keane paged through and removed a medical
record from Dr. Thakkar's files which had been left on the witness
stand. Keane's actions were committed without the knowledge or
permission of Dr. Thakkar, the plaintiff, or the plaintiff's
attorney. When the trial reconvened, Keane presented the medical
record to Dr. Thakkar during his cross-examination, without
advising her that he had removed the document from her original
file. The medical record contained notes of the plaintiff's
physical therapist and referred to improvements in the plaintiff's
condition while undergoing therapy. When Dr. Thakkar was presented
with this medical record, not realizing that Keane had removed the
document from her file, she stated that she had never seen the
document before. In the presence of the jury, Keane then told Dr.
Thakkar that he had taken the record from her file.
The plaintiff's attorney immediately objected, and the trial
court reserved its ruling on the objection until after the jury was
dismissed for the day. After hearing argument from both counsel,
the trial court admonished Keane for his conduct and ordered him to
pay a $100 sanction. Despite the plaintiff's request for
additional relief, the trial court found that the plaintiff had not
been prejudiced by Keane's conduct and ruled that no further
statement regarding the incident needed to be made to the jury.
The plaintiff argues that Keane's conduct was a violation of
the physician-patient privilege and was so prejudicial that he is
entitled to a new trial. He argues that Keane's conduct was a
deliberate attempt to discredit Dr. Thakkar's testimony and to make
her appear confused and argumentative in front of the jury. During
his closing argument, Keane repeatedly questioned Dr. Thakkar's
competency to testify regarding the plaintiff's diagnosis and
treatment.
Although improper argument and attorney misconduct can be the
basis for granting a new trial, that determination is left to the
sound discretion of the trial court and should not be disturbed on
appeal. Bisset v. Village of Lemont, 119 Ill. App. 3d 863, 865
(1983). The attitude and demeanor of counsel, as well as the
atmosphere of the courtroom, cannot be reproduced in the record,
and the trial court is in a superior position to assess and
determine the effect of improper conduct on the part of counsel.
Bisset, 119 Ill. App. 3d at 865.
In the instant case, we conclude that the trial court did not
abuse its discretion in refusing to grant the plaintiff a new
trial. Although we certainly agree that Keane's conduct was
improper and should be discouraged, we believe that the manner in
which the trial court dealt with the misconduct was appropriate.
We fail to see how Keane's conduct violated the physician-patient
privilege articulated in Petrillo v. Syntex Laboratories, Inc., 148
Ill. App. 3d 581, 591 (1986), as the plaintiff had already tendered
a complete copy of Dr. Thakkar's medical file to the defendants
during discovery. Furthermore, we do not find that Dr. Thakkar was
subjected to unfair surprise by being presented with a medical
record out of her own patient file which she had presumably
reviewed prior to testifying. We therefore conclude that the
plaintiff was not unduly prejudiced by Keane's conduct and that the
trial court did not abuse its discretion in denying the plaintiff's
motion for a new trial.
For the foregoing reasons, the judgment of the circuit court
of Lake County is affirmed.
Affirmed.
DOYLE and RATHJE, JJ., concur.