*1 JANKY, PERRY, Plaintiff-Appellant, DORIS Defendant- BARBARA v.
Appellee. Third District No. 3 — 02—0632 Opinion filed 2003. September *2 Marincic, Bowles, EC., Peoria, appellant. Michael Goldfine of for T. of & Timothy Shelton, Culbertson, Chicago, Stephen of and G. Hinshaw & Morris, Culbertson, Peoria, appellee. M. of Hinshaw & for
JUSTICE HOLDRIDGE delivered the court: The plaintiff, Janky, negligence Barbara filed a cause of action against Perry. Janky Doris claimed that her shoulder injured by was of an Perry. as result automobile accident caused A Perry. ruled in favor of Janky’s judgment motion for notwith- standing appeal, Janky argues was denied. On by Perry’s attorney trial court erred allowing to elicit Janky from she complained of shoulder her family occurred; doctor three four before the automobile accident and denying her motion for a notwithstanding the verdict. We affirm.
BACKGROUND 17, April automobile accident at issue occurred on 1999. On date, Janky was a a car passenger in driven her husband. The Jankys’ granddaughter in passenger Janky was the front seat and was in backseat on the stopped light, driver’s side. While at a traffic Janky forward talk granddaughter. leaned to her
Perry car, driving stopped directly was her which was behind the Jankys’ Perry stopped light, car. testified that while for reached object. down to the floor of her car an Perry to retrieve When bent object, slipped Perry’s over retrieve the her foot off the brake. car moved and Jankys’ forward struck the car from behind. As result of collision, Janky’s in left shoulder front of struck driver’s seat her. seat, testified that when her she im- shoulder struck
mediately felt from her shoulder down her After the ac- elbow. cident, Instead, did not seek immediate medical attention. granddaughter and her took the granddaughter’s husband their to visit Jankys father. The then drove home. to their Saturday. accident occurred on a stated that her Sunday. Monday, her husband made continued to hurt on On orthopedist, Morgan. Dr. J. appointment Timothy for with an examination, place took During following exchange direct lawyer Janky: and between *** pr^or “Q. accident, you any problems have with did your left shoulder? Well, pain[,] my It I had but wasn’t down shoulder. was my up (Indicating) in here neck area. often[,]
Q. Now, talking still about the ac- how and we’re before cident, April you often have 17th of how would your you talked about in left shoulder? all, frequent frequent
A. Not at all.” cross-examination, Perry’s attorney Janky, “You On asked your family early as complained physician you?” Janky’s attorney immediately March of didn’t asked to bench, off the Following sidebar was held record. approach sidebar, Janky’s objection the record that judge stated for however, objection, preserved overruled. The nature is in the record. lawyer exchange place Perry’s then took between following Janky:
“Q. you complaints asked if it correct that made isn’t *3 Blair, family early Dr. pain your physician, left to as March of 1995? what, was, know, year you I what it
A. don’t remember when it anything. was or
Q. complaints Dr. you you making remember Blair? Were —do A. Um-hum.
Q. your left About shoulder?
A. Yes. in,
Q. telling you him were that left you remember that Do him that? very painful? you telling Do remember shoulder was A. Yes. (cid:127) Q. April of 1995? That was back in March was, when, dates. A. I’m sure when Q. years ago? But it was several A. Yeah. tear the time that
Q. had a cuff at you you Did know that rotator Dr. you Morgan? went to see
No, A. I didn’t. you
Q. Morgan first doctor that told Dr. Was torn? rotator cuff was
A. Yes. Q. Morgan says You understand that Dr. that the rotator cuff predates Perry? tear You date accident with Miss understand that? Yes, that, He but I do. didn’t tell me know that now.” proceeding, Janky Morgan’s by way
Later in the offered an deposition, jury. Morgan which was read to the stated date, that he April first saw on 1999. On that told Morgan region
“that she had had in the of her shoulder for left several years, but that recently worsened the time an automobile accident. concerned,
farAs as her shoulder was stated physicians seen some any other but had not obtained relief pain.”
Morgan initially said that he an X ray ordered shoulder. The X ray “degenerative showed changes the form of mild spurring and narrowing of the joint.” Morgan acromioclavicular testified that joint the acromioclavicular joint is “the small where the collarbone articulates with top the shoulder bone on of the shoulder.” He said that a portion of the joint. rotator cuff is located Morgan under gave injection cortisone attempt inflam- to relieve the mation in her shoulder. Morgan
When Janky again 10, 1999, saw May Janky told the doctor injection significantly cortisone had not reduced her pain. Morgan said “stated that she had also had some in the region of her neck may which she felt also have worsened since the motor vehicle accident.” (MRI)
Morgan then magnetic ordered a image resonance shoulder. MRI a large “revealed evidence of tear of the rotator *** cuff, tendon, of a “wasting” muscle, retraction” of a and other “degenerative changes” her shoulder. The doctor stated degenerative changes likely were present prior have been the car accident.
Morgan recommended surgery repair Janky’s shoulder condi- tion physical therapy strengthen injury. around muscles that, He stated within a degree certainty, reasonable of medical car accident had aggravated Janky’s previously existing condition.
After the was presented, the trial judge directed in favor Janky jurors of of negligence. issue He instructed the that they still were to decide if Perry’s negligence proximately caused and, so, injury if to Janky’s damages. determine returned a verdict in Perry. favor of In her
Janky judgment notwithstanding moved for a verdict. motion, against Janky argued the verdict was the manifest evidence; of weight by allowing testimony the court erred prior The motion denied regarding Janky’s treatment. Janky appealed.
ANALYSIS I. Janky’s Testimony Concerning Previously Having Sought
Medical Treatment
Perry’s
by permitting
contends that the trial court erred
lawyer
Janky concerning previously having
to elicit
from
sought
proposition, Janky
for her
medical treatment
shoulder. For
(2000).
DeBoer,
49,
Voykin
cites
v. Estate
192 Ill. 2d
evidence of a introduced case, than the first plaintiff, rather Janky’s body. The first part prior injury evidence of a same pain, lawyer previous about her time asked neck. The area of her more of a said that was pain, Janky’s attorney previous asked about her time second experienced pain, previously said infrequently. *5 having been subject Janky’s previous shoulder examination, Perry’s attorney pursued on the mat
raised direct then on proceeding, Janky ter Later the introduced cross-examination. Morgan’s previously sought atten testimony medical pain. Morgan tion for her shoulder and stated his medical neck also predated shoulder condition the car accident. Janky’s attorney opened subject Because the door on the of her preexisting injury treating and later introduced from her physician injury, holding this concerning Voykin we find be inapplicable Thus, to the" trial present case. court did not abuse its by allowing Perry’s attorney question discretion Janky concerning previously seeking attention for her shoulder.
II. Judgment Notwithstanding the Verdict Janky argues that the by denying trial court erred her motion for judgment notwithstanding the verdict. judgment
A
notwithstanding the verdict is to be
only
entered
evidence,
when the
taken in
light
most favorable to the nonmov
ant, so overwhelmingly
contrary
favors
movant that no
could stand. When
trial
reviewing a
court’s
on
ruling
motion,
such
appellate
court cannot
judgment
substitute its
on questions of fact
tried by
jury.
apply
We
a de novo standard of
concerning
review
rulings on
judgments
motions for
notwithstanding the verdict. Morus
v. Kapusta,
339 Ill.
App.
Because a reasonable could have found that Perry’s negligence proximate was not cause of injury. Therefore, we hold as a matter of law that the trial court did err by denying Janky’s motion judgment notwithstanding for a the verdict.
CONCLUSION For foregoing reasons, we affirm the of the Peoria judgment notwith- motion for a County denying Janky’s circuit court standing verdict.
Affirmed.
LYTTON,J., concurs. SCHMIDT, concurring: specially JUSTICE majority, separately write agree holding with the fully regarding plaintiffs address some issues claim. issue, majority correctly points out respect With put prior on plaintiff that it was the who I note preexisting Additionally, and the torn rotator cuff. damages plaintiff sought but the put
did *6 clearly is aggravation preexisting ap- of a condition. for plicable. notwithstanding the
Regarding plaintiff s demand for verdict, undisputed her plaintiff argues preexisting that it is that expert, this accident. Plaintiffs injury aggravated by shoulder was it the torn Timothy M.D., opinion, made clear that in his Morgan, ac- injury preexisted cuff that automobile rotator was chronic her the accident. Dr. pain Plaintiff claims that increased after cident. this accident Morgan opinion aggravated testified his subjective left shoulder was based her plaintiff’s by plaintiffs He made this clear on redirect examination complaints. attorney:
“Q. Doctor, aggravated it this accident remains injury? Ms. cuff rotator telling her aggravated her is based on My opinion that
me that.” was up jury plaintiff to decide whether It was therefore The 12 have chosen to believe jurors historian. could a credible medical They obviously or not. chose the latter. her reason notwithstanding improper is where Judgment verdict or be minds conclusions to drawn might able differ as inferences Engineering, 166 Pasquale Speed v. Products presented. from the facts (1995). notwithstanding the Judgment N.E.2d 1365 Ill. 654 with any together if there is cannot be entered demonstrating therefrom, inferences to be drawn reasonable credibility dispute, factual or where assessment substantial evidence is regarding conflicting or the determination the witnesses N.E.2d Ill. 2d 603 Maple Gustafson, v. 151 to the outcome. decisive light trial, in the looking adduced at at the evidence could have concluded that jury to the most favorable was credible. plaintiff (1) trial, having prior plaintiff At first denied in her She later preexisting testified that been neck. experienced pain prior admitted (2) dispute plaintiff There was a between and the automobile accident. severity impact. Plaintiff regarding defendant nature and in the rear seat when her vehicle leaning testified that she was forward claims threw her left impact from behind. She was struck seat in front of her. A reasonable shoulder into the rear the driver’s jury life might experiences. have this based on jury questioned that, than might probable being found that it rather have was plaintiff the rear impact, thrown forward from would have been drawn that, just back into seat. ac- prior testified cident, she had no idea that she torn or preexisting rotator cuff other permanent or chronic shoulder have injury. also could light doubted this the fact that the professional first saw general after the was not a or practitioner emergency accident physician, room an orthopedic surgeon. the only
Because evidence of of a aggravation either preexisting injury, according to plaintiff’s expert, own was plaintiffs subjective complaint of pain, say, increased we cannot plaintiff urges, the jury required accept her face value.
In re R., (The JR., DONALD Illinois, Minor People of the State
Petitioner-Appellee, R., Jr., v. Donald Respondent-Appellant).
Third District No. 3 — 02—0716 Opinion August 29, filed 2003.