NOTICE

Decision filed 08/31/16. The text of this decision may be NO. 5-15-0557 changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of IN THE the same.

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

LARRY CLARO, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) St. Clair County. ) v. ) No. 14-L-236 ) SHIRLEY ANN DeLONG, ) Honorable ) Vincent J. Lopinot, Defendant-Appellee. ) Judge, presiding. ________________________________________________________________________

JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion. Presiding Justice Schwarm and Justice Stewart concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, Larry Claro, appeals from a judgment of the circuit court of St. Clair

County in favor of defendant, Shirley Ann DeLong, entered after a jury returned a

general verdict in favor of defendant in a negligence action brought by plaintiff after

defendant collided with plaintiff's vehicle. The issues on appeal are (1) whether the

verdict in favor of defendant was against the manifest weight of the evidence and (2)

whether plaintiff was entitled to a judgment notwithstanding verdict (judgment n.o.v.).

For the following reasons, we reverse and remand with directions to enter judgment in

favor of plaintiff and to hold a new trial on the issue of damages only. 1 ¶2 FACTS

¶3 On January 11, 2013, plaintiff was driving his Honda Accord and was stopped at a

stoplight when he was rear-ended by defendant, who was driving a Dodge Durango.

Prior to trial, defendant admitted liability, and a jury trial was held on the issue of

damages only. At the time of trial, plaintiff was 57 years old. The accident in question

occurred when plaintiff was 55.

¶4 Plaintiff works as an auto body repairman. He testified he started working at his

father's body shop as a young man. Over the years, he has worked in several different

auto body shops. At the time of trial, he was employed by an auto body shop doing

heavy repair work with the chance to possibly buy the business from its current owners.

¶5 Defendant testified she was stopped behind plaintiff at a stoplight. She estimated

she was stopped for five or six seconds when the brake released "like there was air in the

line or something. It just went down." Her vehicle then rolled two or three feet into

plaintiff's vehicle. She said there was "very little impact." She testified that both she and

plaintiff exited their vehicles to check to see if everyone was okay, which they were. The

parties called the police, took care of business, and both drove away from the scene.

Defendant admitted plaintiff was certainly caught off guard and surprised at the time of

impact. She said she drove away from the scene even though her brakes malfunctioned

because the brakes had never done that before, and she "just assumed everything was

okay."

¶6 Plaintiff testified defendant struck him while she was traveling between 15 to 20

miles per hour and that immediately after the accident defendant was flustered. 2 Defendant opened her left rear door, fumbled around on the floorboard, and retrieved a

cell phone. Plaintiff did not immediately seek medical attention. Plaintiff testified in the

days and weeks following the accident, he was sore and aching in his right shoulder. He

took ibuprofen and thought the pain would get better, but the pain worsened.

¶7 Plaintiff continued to work and did not miss any time from his job as a result of

the accident. However, due to increasing pain, he got to the point where he could not

sleep well. His girlfriend recommended he go to a chiropractor, Dr. Dale Fischer.

Plaintiff sought treatment with Dr. Fischer, and that treatment initially helped. However,

when his recovery hit a plateau, Dr. Fischer referred him to Dr. Matthew Gornet, an

orthopedic surgeon.

¶8 Plaintiff saw Dr. Gornet three times in 2013. Plaintiff went back to see Dr. Gornet

on June 11, 2015, after plaintiff continued to experience neck pain. Ultimately, Dr.

Gornet recommended a steroid injection, which helped reduce plaintiff's symptoms.

However, plaintiff still experiences pain in the right side of his neck and down his

shoulder, especially when he is doing something strenuous. Plaintiff testified the pain is

tolerable if he is sitting in a chair watching television, but at the end of a 10-hour work

shift, his pain is "not good."

¶9 Plaintiff testified that he suffered a herniated disc in his lower back 13 years ago

as a result of picking up a tailgate off the floor. He missed six weeks of work due to that

injury, but was up to light duty after three months and ultimately released for full duty.

Plaintiff testified that prior to the instant accident, he did not take ibuprofen for pain, but

he now takes it two to three times per week. 3 ¶ 10 Plaintiff fixed his own car. He said the amount of damage sustained in the impact

was much greater than damage that would be caused by tapping a bumper. Plaintiff

explained that it did not appear as though his car sustained much damage, but when he

took the bumper off, he found significant damage and that the impact "pushed in the rear

body panel, which is actually a structural piece that ties the whole rear of the vehicle

together for safety. And the area of the taillight would be pushed in a little bit. And there

was also damage on the trunk lid."

¶ 11 Plaintiff further testified about medical bills he incurred as a result of the accident

for services provided by Dr. Fischer, Dr. Gornet, and MRI Partners of Chesterfield, and

Dr. Kaylea Boutwell. Plaintiff's exhibit No. 1 shows medical bills totaling $17,772.79.

¶ 12 Both Dr. Fischer and Dr. Gornet testified the symptoms plaintiff experienced were

consistent with a rear-end collision and opined that within a reasonable degree of medical

certainty plaintiff's complaints and need for treatment were related to the January 11,

2013, accident. Dr. Fischer testified that he initially evaluated plaintiff on February 14,

2013, at which time plaintiff gave a history of a motor vehicle accident in January.

Plaintiff said he did not have any neck or shoulder pain prior to the accident. Dr. Fischer

noted that plaintiff could not even hold his head up straight on the day of his initial

examination and that upon physical examination plaintiff demonstrated a significantly

limited range of motion.

¶ 13 Dr. Fischer testified it is extremely common for patients to wait to seek treatment

after an injury in the hope that the condition will resolve itself. Dr. Fischer testified the

X-rays he took of plaintiff showed more than just degenerative changes, and he initially 4 diagnosed plaintiff with at least a severe strain of the cervical spine. Dr. Fischer initially

recommended conservative treatment through ultrasound and supplementation, after

which plaintiff's pain decreased from a 10 to a 5 on the pain scale. When plaintiff's pain

plateaued at that level, Dr. Fischer referred plaintiff to Dr. Gornet.

¶ 14 Dr. Gornet, a board-certified orthopedic surgeon whose practice is devoted

exclusively to spinal surgery, testified that plaintiff's choice to see a chiropractor rather

than a physician was appropriate for his symptoms and it is common for Dr. Fischer to

refer patients to him if chiropractic care does not alleviate all of a patient's symptoms.

Dr. Gornet testified plaintiff has structural injury to his cervical spine, which was causing

his neck, right shoulder, and arm pain. An MRI performed on August 12, 2013, showed

two herniated discs. Plaintiff has right-sided herniation at C5-6, causing narrowing of the

nerve channel, and a smaller herniation at C6-7. Dr. Gornet believes the herniation at

C5-6 is due to the car accident, but the herniation at C6-7 is due to degenerative changes.

Dr. Gornet treated plaintiff on June 10, August 12, and November 11, 2013. Dr. Gornet

did not place any restrictions on plaintiff.

¶ 15 Plaintiff testified he tried to live with his symptoms, but when his symptoms did

not dissipate, he returned to Dr. Gornet on June 11, 2015. Plaintiff confirmed he did not

sustain any new injuries since the 2013 auto accident. Dr. Gornet ordered a second

cervical spine MRI to ensure plaintiff's pathology had not changed. The results of the

second MRI revealed the same pathology and confirmed that the herniated discs were the

source of plaintiff's symptoms. Both MRI films were introduced into evidence.

5 ¶ 16 Dr. Gornet recommended a steroid injection, which calms inflammation and

relieves symptoms. Dr. Gornet referred plaintiff to Dr. Boutwell, who performed the

injection in July 2015. When plaintiff came back to Dr. Gornet after the injection,

plaintiff said his conditions improved after the injection. Dr. Gornet advised plaintiff to

live with his symptoms as long as possible. He testified plaintiff can receive additional

injections, but if the injections do not continue to work, Dr. Gornet would recommend

disc replacement surgery, which would cost around $60,000. Dr Gornet testified that

symptoms like plaintiff's "tend to always come back."

¶ 17 Dr. Gornet testified that within a reasonable degree of medical certainty, plaintiff's

injuries and probable need for additional treatment are related to the January 11, 2013,

auto accident, noting that plaintiff had no significant problems before the accident.

Defense counsel questioned Dr. Gornet about defendant's exhibit No. 1, in which Dr.

Fischer noted that plaintiff sustained a herniated disc 13 years ago. Dr. Gornet testified

on redirect that there was no mention of where the herniated disc was located and no

mention of a prior cervical MRI and nothing to indicate that plaintiff required any

injections prior to the accident.

¶ 18 Both plaintiff's Verdict Form A and defendant's General Verdict Form C were

submitted to the jury. The general verdict was submitted over plaintiff's objection. After

deliberations, the jury returned the general verdict form finding in favor of defendant and

against plaintiff. No damages were awarded. Plaintiff moved for judgment n.o.v., which

the trial court denied. Plaintiff filed a timely notice of appeal.

6 ¶ 19 ANALYSIS

¶ 20 The first issue is whether the verdict in favor of defendant and against plaintiff is

against the manifest weight of the evidence. Plaintiff contends that here where defendant

admitted liability and there was uncontroverted evidence linking his injuries to the

accident, the jury's general verdict is against the manifest weight of the evidence and he

is entitled to a new trial on the issue of damages. Defendant responds that even though

she admitted liability, there was sufficient evidence in the record for the jury to conclude

that plaintiff was not injured as a proximate result of the accident. After careful

consideration, we agree with plaintiff.

¶ 21 A reviewing court will set aside a jury's verdict if it is " 'contrary to the manifest

weight of the evidence.' " Maple v. Gustafson,

,

(1992) (quoting Mizowek v. De Franco,

,

(1976)).

A verdict is against the manifest weight of the evidence in cases in which the opposite

conclusion is clearly evident or the findings of the jury are unreasonable, arbitrary, and

not based upon the evidence.

Because the jury entered a general verdict, we do not

know on what basis it made its findings.

,

. For example, we

do not know whether the jury entered its verdict in favor of defendant because it found no

causal connection between plaintiff's alleged injuries and the accident or whether it found

plaintiff suffered no damages as a result of the accident. However, we find the evidence

at trial overwhelmingly established plaintiff was injured in the collision and suffered

damages, and a contrary verdict cannot stand.

7 ¶ 22 The instant case is similar to Wiggins v. Bonsack,

,

. In that case, the plaintiff appealed after a jury returned a general verdict in

favor of defendant in an automobile case. The record showed the accident occurred when

the defendant was attempting to make a left turn out of a gas station at a busy

intersection, which required her to cross two lanes of traffic headed in the opposite

direction. Id. ¶ 17. After a man in a red truck made a waving motion, the defendant

assumed it was safe for her to make the turn. Id. The defendant admitted she could not

see the lane next to the red truck and never saw the plaintiff's car prior to impact. Id. The

defendant thought the man in the red truck was mainly at fault but admitted she was also

at fault for trusting the man in the red truck when she could not see into the lane of

oncoming southbound traffic in which the plaintiff was traveling. Id. The defendant also

admitted the plaintiff did nothing to cause the accident. Id.

¶ 23 The plaintiff argued the evidence at trial overwhelmingly established she was

injured in the collision and a contrary verdict could never stand. Id. ¶ 22. The plaintiff

offered the testimony of her chiropractor, who testified the plaintiff's injuries were

consistent with the type of accident that occurred and her delay in treatment was not

unusual given her tender years of 15 and her belief the symptoms would disappear. The

defendant offered no evidence to the contrary. Id. ¶ 26. Nevertheless, the defendant

argued the evidence did not establish the plaintiff was injured in the collision, and she

was not required to present her own medical testimony but properly discredited the

plaintiff and her chiropractor on cross-examination. Id. The defendant asserted that

8 given the delay in symptoms and an 87-day delay in treatment, plaintiff was not entitled

to either a judgment n.o.v. or a new trial. Id.

¶ 24 We reversed the general verdict in favor of the defendant and remanded with

directions to enter judgment in favor of the plaintiff and hold a new trial on the issue of

damages, because the record was clear that the defendant's negligence was the proximate

cause of the accident and it was difficult to imagine how an inference could be drawn that

the plaintiff did not suffer any actual injury due to defendant's negligence. Id. ¶¶ 26-27.

We disagree with defendant's assertion that the instant case is inapposite of Wiggins. We

find the instant case even stronger than Wiggins because here defendant actually admitted

liability before the trial even started. The only issue was damages.

¶ 25 Plaintiff's treating chiropractor and orthopedic surgeon both testified there was a

causal connection between the accident and plaintiff's injuries. Both medical

professionals testified it was not unreasonable for plaintiff not to immediately seek

medical attention. Defendant offered no contrary medical opinion. Moreover, there was

no evidence of any intervening accident that would have caused plaintiff's injuries.

While there was a question of a prior herniation, it is clear that was a low back injury

some 13 years prior to the accident in question. The instant injury and resulting pain

were in plaintiff's neck and right shoulder.

¶ 26 Even considering degenerative changes have occurred in plaintiff and might be

causing him some pain, the record is clear that plaintiff suffered injuries due to the rear-

end collision caused by defendant. Dr. Fischer testified X-rays he took showed more

than mere degenerative changes in plaintiff. He initially diagnosed plaintiff with at least 9 a severe strain of the cervical spine. Dr. Gornet later diagnosed plaintiff with a herniated

disc at C5-6, which he said was caused by defendant's January 11, 2013, rear-end

collision with plaintiff. Plaintiff testified about medical bills he incurred as a result of the

accident with defendant. Under these circumstances, we fail to see how a reasonable

inference could be drawn from the evidence presented that plaintiff did not actually suffer

any injuries or damages due to defendant's negligence. Due to our determination on the

first issue, we need not address the second issue.

¶ 27 For the foregoing reasons, we reverse the judgment of the circuit court of St. Clair

County and remand with directions to hold a new trial on the issue of plaintiff's damages.

¶ 28 Reversed and remanded with directions.

10

NO. 5-15-0557

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

LARRY CLARO, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) St. Clair County. ) v. ) No. 14-L-236 ) SHIRLEY ANN DeLONG, ) Honorable ) Vincent J. Lopinot, Defendant-Appellee. ) Judge, presiding. ________________________________________________________________________

Opinion Filed: August 31, 2016 ________________________________________________________________________

Justices: Honorable Richard P. Goldenhersh, J.

Honorable S. Gene Schwarm, P.J., and Honorable Bruce D. Stewart, J., Concur ________________________________________________________________________

Attorneys Michelle M. Rich, Kristina D. Cooksey, Thomas C. Rich, Thomas C. for Rich, P.C., 6 Executive Drive, Suite 3, Fairview Heights, IL 62208 Appellant ________________________________________________________________________

Attorneys Daniel L. Bradley, Darrell J. Flesner, DeFranco & Bradley, P.C., for 141 Market Place, Suite 104, Fairview Heights, IL 62208 Appellee ________________________________________________________________________