DiFranco v. Kusar
90 N.E.3d 556
| Ill. App. Ct. | 2017Background
- On June 9, 2011, DiFranco was rear‑ended by Kusar; she went by ambulance to GlenOaks ER and later treated with Dr. Anderson, Dr. Frank, and Dr. Rosenblatt and underwent physical therapy and diagnostic testing.
- Medical bills introduced totaled $29,331.88; plaintiff claimed emergency room bills alone were $3,742.75.
- Defendant admitted negligence; at trial disputed proximate causation and whether all treatment was necessary and related to the crash.
- Defense expert Dr. Rabinowitz presented plaintiff’s preexisting, chronic neck/arm complaints dating to 2003 and opined much of the post‑accident complaints fit a continuum of preexisting conditions; he found ER records lacked objective signs of acute cervical strain.
- Jury awarded $1,000 for medical expenses, $0 for pain and suffering, and $0 for loss of normal life; court denied plaintiff’s new‑trial motion and awarded limited costs but disallowed $243.67 in requested "witness fees."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether verdict was against manifest weight for damages / whether a new trial was required | DiFranco: jury ignored proven medical expenses and necessity; Dr. Rabinowitz allegedly corroborated necessity for $15,770.88 of treatment | Kusar: causation and necessity were disputed; preexisting conditions could explain complaints; some billing items may be unreasonable | Court: no abuse of discretion; reasonable jury could limit award given disputed causation, preexisting conditions, billing irregularities |
| Whether $0 award for pain and suffering was legally inadequate | DiFranco: pain and suffering was established and uncontradicted by defense experts | Kusar: plaintiff’s complaints were primarily subjective; objective findings were minimal and preexisting history undermined credibility | Court: $0 permissible; jury could disbelieve subjective pain absent objective signs; award not against manifest weight |
| Whether trial court erred in denying $243.67 in witness fees under 735 ILCS 5/5-108 | DiFranco: fees for obtaining medical records are taxable witness fees because records were used at trial | Kusar: those costs are ordinary litigation expenses (nontaxable) and not statutory court costs | Court: trial court properly disallowed them as taxable costs; statute construed narrowly and these were nontaxable litigation costs |
Key Cases Cited
- Lawlor v. North American Corp. of Illinois, 2012 IL 112530 (standards governing trial court’s review of motion for new trial)
- Anderson v. Zamir, 402 Ill. App. 3d 362 (App. 2010) (where causation and necessity were uncontested, very low damages award reversed)
- Vicencio v. Lincoln-Way Builders, Inc., 204 Ill. 2d 295 (distinguishing taxable court costs from nontaxable litigation costs)
- Snover v. McGraw, 172 Ill. 2d 438 (explaining difficulty quantifying pain and suffering and distinction between subjective complaints and objective symptoms)
- Snelson v. Kamm, 204 Ill. 2d 1 (deference to jury on damages determinations)