Lead Opinion
delivered the opinion of the court:
Judgment was entered against defendant, Cotton Belt Route — St. Louis Southwestern Railway Company, on May 18, 1989, by the circuit court of St. Clair County following jury verdict rendered in favor
Defendant raises the following issues on appeal:
(1) Whether certain comments made during plaintiff’s closing argument resulted in a verdict based on passion and prejudice and prevented defendant from receiving a fair trial;
(2) Whether the trial court abused its discretion by failing to impose discovery sanctions on plaintiff, allowing one of plaintiff’s witnesses to refer to certain notes she had in her possession during testimony, because plaintiff failed to produce a copy of these notes to defendant during discovery;
(3) Whether the trial court erred in refusing to submit to the jury defendant’s tendered instruction No. 5, Illinois Pattern Jury Instructions, Civil, No. 5.01 (2d ed. 1971) (hereinafter IPI Civil 2d No. 5.01), on failure to produce a witness within a party’s power to produce;
(4) Whether the jury’s award of damages for impairment of future earning capacity was proper;
(5) Whether the trial court erred in giving plaintiff’s issues instruction No. 15A, which instructed the jury on plaintiff’s theory of the case that defendant had negligently failed to provide plaintiff with a safe place to work;
(6) Whether the trial court abused its discretion by admitting evidence that following plaintiff’s accident the railroad had placed a spotter on the job; and
(7) Whether the trial court erred in giving plaintiff’s instruction No. 14, the long version of Illinois Pattern Jury Instructions, Civil, No. 15.01 (3d ed. 1991) (hereinafter IPI Civil 3d No. 15.01), on proximate cause, under the evidence presented in this case.
Plaintiff was employed by defendant on August 16, 1978, as a maintenance-of-way laborer. This job involved the maintenance and repair of tracks and included loading and unloading of rails bound for a particular railyard. The injuries involved in count I of plaintiff’s complaint occurred on September 25, 1979, at defendant’s East St. Louis, Illinois, yard. Plaintiff’s employment with defendant was terminated in July 1984 for reasons other than his physical condition after the 1979 accident.
Plaintiff testified that on the day of the incident he and another laborer by the name of Hoover Gatewood were told to go to the west end of the track in the yard to work with Mike Flowers, the cherry picker operator, unloading bundles of railroad ties from a gondola car and putting them onto the side of the road.
A “cherry picker” is a type of crane with a telescopic boom on a turntable. Attached to the boom is a tag-line cable weighing approximately 70 pounds, the end of which is attached to ball weights, which keep tension on the cable to keep it from getting tangled. Large metal hooks weighing approximately 5 to 10 pounds are attached to these weights and attached thereto are smaller hooks, known to the railroad laborers as “tie dogs.” Tie dogs are stabbed into each of the railroad ties, and when the cherry picker’s boom is raised, the ends of the tie dogs dig deeper into the bundle of ties. The cherry picker had windows on all four sides and mirrors on the left side for rear view. Plaintiff testified that the cherry picker had outriggers or “feet” on the four sides which were used when lifting heavy objects since the inflated tires could not support the crane. Use of the outriggers causes the crane’s wheels to be lifted off the ground. Plaintiff further testified that if the crane was to be moved, the outriggers had to be up and the wheels down.
Plaintiff testified that on the day of the incident Flowers was operating the cherry picker, and Gatewood and he were both
Flowers testified that at the time of the accident he was looking directly at plaintiff. He testified that the distance from the ground to the crane would have been five feet with another four feet from there to where the boom was level, a total distance from ground to boom of nine feet in the boom’s horizontal position. He also testified that because the boom cannot go lower than the horizontal on the crane, the boom would always be above the operator’s head and never lower than his line of sight. Flowers recalled that he had lowered the cables so plaintiff could hook the tie dogs into each end of the ties and that he had let the tag line, weight, and hook down to give him enough slack. When plaintiff reached the tie dogs, Flowers let the boom down. Plaintiff hooked the ties and started to raise up when the hook caught him on one side of the back. Flowers, however, testified that the boom had not moved.
Although Gatewood couldn’t remember whether plaintiff was on the ties in the gondola car or on the ground when the accident occurred, he testified that it was the boom which had struck plaintiff’s back.
Gatewood testified that when the boom moves, the cab and operator move with it, and so the operator could not have a view of someone working around him all the time. Plaintiff testified that it was railroad custom to assign a crew member to act as a spotter in order to let the crane operator know where those workers were that the operator would not be able to see.
Willie Dickerson, employed by defendant railroad for 18 years and a foreman on another crew on the day plaintiff was injured, agreed with this testimony. Dickerson stated that because of the way the cab was made, it was necessary to have a spotter in situations where the boom blocks the vision of the crane operator and that this was the usual and customary practice of defendant railroad. Dickerson stated that it was up to the foreman to decide whether they should have a spotter, but he opined that a spotter is necessary to tell the operator when to move even if he can see the worker.
Flowers admitted that there were instances where you would need a spotter but testified that a spotter would not have been “feasible” at the time of plaintiff’s accident because he was able to look at plaintiff through the front window of the crane’s cab.
Gatewood also testified that during the afternoon of plaintiff’s accident two additional men were sent to the work site and one of those men acted as a spotter.
Plaintiff testified that he got down off the bundles and told Gate-wood and Flowers that he could not work any more that day. He was driven to the railroad doctor’s office by a supervisor who also had
Plaintiff next presented himself for treatment with Dr. Robert Bolton in July 1980 because after a few months the pain had gotten worse. Plaintiff testified that he had sharp, throbbing pain in his neck, back, left arm, and leg. Dr. Bolton diagnosed cervical strain with straightening of the cervical vertebrae and scoliosis of the cervical vertebrae, thoracic vertebral strain syndrome with scoliosis, and lumbar strain syndrome with rotation of the lumbar vertebrae. Dr. Bolton prescribed muscle relaxants, medication for pain, and physical therapy. Plaintiff was also hospitalized by Dr. Bolton for 20 days that same month, during which time a myelogram was performed and plaintiff received physical therapy. Plaintiff testified that the pain decreased but never went away entirely.
Plaintiff testified he was transferred by defendant in 1982 to Kansas City, and while he was stationed there he was treated by a chiropractor. He was furloughed by defendant in 1982. Defendant called plaintiff back to employment as a laborer in 1983, but he was suspended later that year. Plaintiff testified that after he was dismissed by defendant, he applied for at least 30 jobs in the Kansas City area, and he was turned down for a number of those jobs because he had reported on the job applications that he had a prior injury to his back.
Plaintiff presented himself for treatment again with Dr. Bolton in January 1984. Dr. Bolton, who operates the St. Louis Industrial and Family Medical Center and screens prospective employees for local businesses, testified that he would leave it up to management whether or not they would want to hire an individual such as plaintiff, who had a past medical history of injury or some form of X-ray finding. Dr. Bolton testified that although plaintiff’s neurological exam was normal at that time, plaintiff would continue to have tenderness in the cervical area and muscle spasm, and he opined that plaintiff would continue to have pain and need treatment in the future and would be limited in the types of sports he had previously engaged in and work he could do. Dr. Bolton explained that soft tissue injuries heal with scar tissue, which is permanent but which will not show up in an X ray. This was the last medical treatment plaintiff had received prior to the trial because, plaintiff testified, he could not pay the doctor bills and the railroad refused to pay them. Plaintiff admitted, however, that he could be treated at a Veterans’ Administration hospital. Plaintiff’s total medical expenses for the back injury were $10,034.44.
After his discharge from employment with defendant in 1984, plaintiff and his wife moved to California, but he did not report the back injury in his job search there. He worked for three to four months at a wood shop and for one day working construction. He testified that he had quit a third job at a food processing plant after seven weeks. He testified that this job did not require much heavy lifting. He testified that he had left each of these jobs because of back pain, and he was also unable to pass a physical exam for a firefighter position in Modesto, California, because of his back injury.
The last job plaintiff had in California was driving a truck for Sunrise Redi-Mix. He earned $8 per hour in this position. Plaintiff was required to undergo a preemployment physical to obtain this job. Dr. Alexis Dasig, who specializes in industrial medicine, performed the physical examination. Dr. Dasig testified that according to the evaluation, plaintiff could lift 100 pounds from the horizontal a distance of 18 inches and from the vertical a distance of 36 inches, using 44.6% of his body strength. Dr. Dasig testified this was a normal finding. Plaintiff was able to lift 60 pounds from floor to waist five times without pain. He was able to lift 60 pounds and carry it 50 feet without pain. He was able to hold 15 pounds with arms outstretched for 15 seconds without pain and drag 100 pounds for 10 feet then lift the weight to waist
Plaintiff left his job with Sunrise Redi-Mix to move with his wife to New Mexico, where his wife’s sister lived. Plaintiff is presently working for the State of New Mexico as a prison guard. He was required to pass a physical exam when he obtained this job. He receives $8 per hour in his position as a prison guard. The last pay scale plaintiff received while working for the railroad was $12.12 per hour. Plaintiff testified that if he had not been dismissed by defendant in 1984, he could not have continued to work for defendant as a laborer because of the back injury. He could not say whether he would rather work for defendant or in his present prison guard position. Plaintiff testified that he has had throbbing continuous pain in his lower to middle back on his right side since the accident, and he occasionally will get a sharp pain followed by numbness in his left arm and leg. Plaintiff also reported that the injury had put a strain on his marriage, making him short-tempered with his wife, decreasing their marital relations, and preventing him from being able to help with chores around the house.
Upon suggestion of plaintiff’s counsel, defendant’s medical expert, Dr. Rosenbaum, testified prior to the close of plaintiff’s case so that he could be the first to testify in the morning of the third day of trial. Dr. Rosenbaum performed a neurological examination of plaintiff on December 7, 1987. His medical conclusion was that plaintiff’s neurological examination was normal, without evidence of any disorder of the brain, spine, or central or peripheral nervous system. Dr. Rosenbaum opined that plaintiff may have initially sustained a soft tissue injury of the back which should, in the course of events, have healed. During cross-examination, he was asked whether it was true that his examination of plaintiff took nine minutes and that the medical history taken of plaintiff took 18 minutes. Dr. Rosenbaum denied each of these propositions. Plaintiff’s counsel also asked Dr. Rosenbaum whether plaintiff’s exhibits 102 through 118, medical reports prepared by Dr. Rosenbaum for different patients, said essentially the same as the report prepared for plaintiff’s examination. Dr. Rosenbaum testified that since a neurological examination is a structured procedure, the reports should be similar, but he denied that he had a prepared format on the computer in his office so that all he had to do was plug in the history and a few other things.
Mary Schulte, a private nurse hired by plaintiff’s counsel to attend the physical examination of plaintiff by Dr. Rosenbaum, testified, after Dr. Bolton’s evidence deposition was read into the record, that she had accompanied clients of plaintiff’s counsel to defense-expert examinations on other occasions between March 1987 and January 1988. She testified that she wrote down the time when the examination started and ended and when the history started and ended. Schulte was asked when plaintiff’s examination started on December 7, 1987, and she pulled her notes from her purse. Defendant objected to the use of the notes to refresh Schulte’s memory because the notes were discoverable and plaintiff had failed to produce them, in violation of a pretrial conference order requiring that both parties produce any discoverable matter which had not yet been produced.
Over defendant’s objection, Schulte testified that the medical history taken by Dr. Rosenbaum took a total of 18 minutes and the examination took a total of nine minutes. She also testified that Dr. Rosenbaum did not perform some of the tests referred to in his report during his examination of plaintiff. While Schulte admitted that she would normally give plaintiff’s counsel a copy of the notes she would make when she accompanied the clients on their examinations, she insisted that she had not given plaintiff’s counsel a copy of the notes taken at plaintiff’s examination nor had she
During the instructions conference, defendant objected to plaintiff’s tendered instructions regarding damages for future medical treatment and impairment of future earning capacity. Defendant argued that there was no basis on which the jury could award a dollar figure for future medical expenses. Plaintiff contended that Dr. Bolton’s testimony that plaintiff would need future medical treatment for his back was sufficient to send the issue to the jury. The court gave plaintiff’s instruction on damages for future medical treatment for count I of plaintiff’s complaint. Defendant argued that there was insufficient evidence in the record to support any computation by the jury of impairment of future job capacity. The court gave plaintiff’s instruction as to impairment of future earning capacity.
Defendant also objected to the inclusion in plaintiff’s tendered issues instruction of the phrases, “the failure to provide a reasonably safe place to work” and “the failure to provide sufficient personnel in which to perform the work,” on the grounds that these were general statements of the duty owed by defendant rather than specific allegations of how defendant was negligent. The court overruled the objection. Defendant also objected to plaintiff’s tendered instruction on proximate cause, the long version of IPI Civil 3d No. 15.01, because there was no evidence of any cause for plaintiff’s injury other than the railroad’s alleged negligence. The court overruled the objection.
Defendant offered an instruction regarding the adverse inference to be made from plaintiff’s failure to produce his wife to testify concerning the effect of plaintiff’s injuries on their marital life. The court refused the instruction. Plaintiff did not offer a similar instruction with regard to defendant’s failure to produce certain evidence or witnesses within its control.
During closing argument, counsel for defendant discussed the evidence in support of its defense of physical impossibility. Counsel argued that Flowers, who was the only witness to have ever operated a crane, testified that in its horizontal position the distance between the ground and the boom was nine feet with the chain, weight, and hook suspended therefrom. Counsel argued that if plaintiff, who was 76 inches in height, had been standing upright on the four tie bundles, which approximated 28 inches in height, for a total height of eight feet six inches, he would have cleared the boom, which was no less than nine feet above the ground in its horizontal position. Therefore, counsel concluded, it was physically impossible for the boom to have struck plaintiff and was more likely that when plaintiff raised up and stepped back, his back or side hit the hook suspended from the boom.
During the rebuttal section of plaintiff’s closing argument, counsel made the following statement:
“They have people *** that work on these cases within the Railroad. That is common sense. [Objection overruled.] Now, let me ask you something. Did they know about the accident in 1979? Sure they did. Did they go out and have people take statements? You heard about it here ***. [Objection overruled.] Now, since they know about the accident, they take statements. Now, where are the pictures of the cherry picker? Where are the measurements that they are trying to tell you and me that it is physically impossible, of the cherry picker? *** He says he calls the supervisor, this Mike Flowers, on custom and practice. Come on. Do you think, if that *** was a custom and practice they wouldn’t have paraded a whole bunch of witnesses in here that that was the custom and practice? [Objection overruled.]”
After the jury retired to consider its verdict, defendant moved for a mistrial because of various comments made during
The court denied defendant’s motion for mistrial. The jury returned with a verdict on count I in the amount of $175,000, of which $115,000 represented damages for past and future medical care and treatment. This appeal followed.
The first issue we shall address is whether the trial court abused its discretion by (1) failing to impose discovery sanctions on plaintiff, allowing Mary Schulte to refer to notes she had made when she observed a physical examination of plaintiff by Dr. Rosenbaum, defendant’s medical expert, and/or (2) denying defendant’s motion to strike Schulte’s testimony about plaintiff’s examination by Dr. Rosenbaum. Defendant contends that plaintiff violated the pretrial order concerning discovery by failing to produce a copy of notes which Schulte had made during plaintiff’s examination. Defendant further contends that because of calling Dr. Rosenbaum out of order, prior to the testimony of Schulte, he was put at a disadvantage of not being able to counter Schulte’s testimony during the defense’s case. Plaintiff insists, however, that there was no skullduggery involved in suggesting that Dr. Rosenbaum testify out of turn prior to the close of his case and that the suggestion was made out of courtesy to the doctor. Indeed, as plaintiff points out, Schulte was intended as a rebuttal witness to impeach Dr. Rosenbaum’s testimony concerning plaintiff’s examination and would have, in any event, been called to testify after Dr. Rosenbaum.
Under Supreme Court Rule 219(c), if a party unreasonably refuses to comply with any order entered under the discovery rules the court, on motion, may enter such orders as are just, including, among others, that a witness be barred from testifying concerning that issue. (134 Ill. 2d R. 219(c)(iv).) Whether to impose sanctions against a party for noncompliance with discovery rules is within the discretion of the trial court. (Amos v. Norfolk & Western Ry. Co. (1989),
Defendant next argues that the trial court abused its discretion by admitting evidence that following plaintiff’s accident the railroad had placed a spotter on the job which plaintiff had been performing when he was injured. During examination of Flowers as an adverse witness, counsel for plaintiff was questioning Flowers with regard to the testimony of Willie Dickerson that it was the usual and customary practice of the railroad to provide a spotter or flagman in a situation such as the one in which plaintiff was injured. Counsel asked Flowers:
“Q. *** [WJould it be feasible to use a flagman or spotter, as a safety precaution, for you as an operator, in a situation like this?”
At this point counsel for defendant asked to approach the bench and a conference was held, the content of which was not made a part of the record. Counsel for plaintiff then asked Flowers:
“Q. What do you mean, Mr. Flowers, when you say it would not be feasible?
A. Well, where I can see the men, and we know what job we got to do, and I can see the men directly, it is not feasible to have another man standing out there and be watching them than for me seeing the people doing the work.”
Following this response, the court recessed and heard argument of counsel as to plaintiffs right to ask whether or not a spotter or flagman was placed on the job the same day after the incident in which plaintiff was injured. Defendant’s counsel argued then, as he does now, that in the context of Flowers’ response the witness interpreted the word “feasible” to mean “necessary under the circumstances,” rather than “possible,” and that post-occurrence changes cannot be shown as evidence. Counsel for plaintiff argued that this evidence could be allowed to prove ownership, feasibility of precautionary measures, or for impeachment, and he was trying to lay a foundation for impeachment since adding a spotter to the crew the very afternoon of the accident contradicted Flowers’ testimony that using a spotter was not feasible. The court allowed counsel for plaintiff to ask Flowers during further adverse examination whether after plaintiff left the job on this day the railroad sent two men over to replace him, one of whom was there to be a flagman and spotter. Flowers responded that he did not recall how many men were sent or whether one acted as a spotter or flagman. Hoover Gatewood later testified that two men replaced plaintiff that afternoon, one of whom was on the ground to give the machine operator signals, to watch the two men hooking ties on the gondola car, and to unhook ties.
While we agree with defendant that the established rule in Illinois is that post-occurrence changes are not admissible to prove negligence on a defendant’s part (Dillon v. U.S. Steel Corp. (1987),
There was already testimony in the case of Willie Dickerson that it was customary for the railroad to provide a spotter in a situation such as the one in which plaintiff was injured, and this testimony
Defendant has raised various objections to the jury’s instructions. In reviewing each of these objections, we will apply the rule that the criterion for determining the adequacy of jury instructions is whether, taken as a whole and in series, they fairly, fully, and comprehensively apprised the jury as to the applicable legal principles. Greenfield v. Consolidated Rail Cory. (1986),
Defendant first contends that the trial court erred in refusing to give defendant’s tendered instruction No. 5, IPI Civil 2d No. 5.01, with respect to the failure of plaintiff to produce his wife to testify as to the effect of plaintiff’s back injury on their life together. Moreover, defendant contends that the error in refusing to give defendant’s instruction No. 5 was compounded by allowing plaintiff’s counsel in final argument to comment on defendant’s failure to produce pictures of the cherry picker crane and the custom-and-practice witnesses under defendant’s control, when there was no instruction of the jury to be made on the adverse inference from failure to produce a witness or evidence which was in the party’s power to produce.
IPI Civil 2d No. 5.01 instructs that where a party fails to produce a witness or offer evidence within his power to produce, the jury may infer that the testimony of the witness would be adverse to that party. As a general matter, the adverse inference is available when the missing witness was under the control of the party to be charged and could have been produced by reasonable diligence, the witness was not equally available to the party requesting that the inference be made, a reasonably prudent person would have produced the witness if the party believed that the testimony would be favorable, and no reasonable excuse for the failure to produce the witness is shown. (Schaffner v. Chicago & North Western Transportation Co. (1989),
Defendant offered its instruction No. 5 because plaintiff testified about his mental situation following the injury and how all of this had affected his wife. Plaintiff’s counsel noted at the hearing on the post-trial motion to vacate that he did not choose to call plaintiff’s wife as a witness because he feared possible prejudice against plaintiff because he and his wife are of different races and because the couple was contemplating and, in fact, did obtain a divorce following the jury trial. Moreover, his wife was living in New Mexico and plaintiff did not want to have the transportation expense of bringing her to Illinois to testify. As plaintiff notes in his argument to this court, further testimony by plaintiff’s wife would have been cumulative as to the issue of how plaintiff’s back injury caused certain marital difficulties, and plaintiff’s complaint did not include a claim for loss of consortium. Although plaintiffs concern of prejudice was not of record at the time the court ruled on the giving of this instruction, allegations of plaintiff’s marital difficulties were of record, and so we agree that reasonable excuse for the failure to produce the witness was shown and that accordingly the trial court properly refused defendant’s tendered instruction No. 5.
The same criteria govern the use of this pattern instruction and the allowance of comment in closing argument regarding the adverse inference from a party’s failure to produce a witness. (Schaffner,
In the Schaffner case, one of the codefendants was permitted in closing argument to comment adversely that another codefendant had failed to call one of its employees as a witness, when no instruction with regard to the inference to be drawn from the failure of a party to produce a witness within its control was tendered by the first codefendant and no instruction on that subject was given by the court. On review, no abuse of discretion was found in allowing such comment on closing argument because under the criteria stated above, the court found that the witness had been hired by the party as an investigator and was therefore under the control of the party, the investigator was not a resident of this State, the investigator who investigated and photographed the accident scene would presumably have been presented if the party had believed that his testimony would have been favorable, and no good reason had been offered by the party for its failure to call its investigator as a witness. Schaffner,
Defendant argues, however, that there was no proof that the photographic evidence was under defendant’s control because it leased this equipment and plaintiff’s counsel knew that it had good reason not to produce Tommy Johnson, the supervisor on the day of plaintiff’s accident, to testify because of the train derailment in California. As plaintiff notes in his brief to this court, comments regarding absence of custom-and-usage "witnesses and photographs of the cherry picker crane were made by counsel during his rebuttal to defendant’s closing argument, in response
The scope of closing argument is within the sound discretion of the trial court, and an argument must be prejudicial for a reviewing court to reverse on these grounds. (Lee v. Grand Trunk Western R.R. Co. (1986),
We will next examine whether the trial court erred in giving plaintiff’s issues instruction No. 15A, which instructed the jury on plaintiff’s theory of the case that defendant had negligently failed to provide plaintiff with a safe place to work and sufficient personnel to conduct his work. Defendant contends that this instruction was improper because it submitted general rather than specific allegations of negligence and an allegation of negligence which could not have been a proximate cause of plaintiff’s accident. Plaintiff’s instruction No. 15A provided, in pertinent part, as follows:
“That in Count I (September 25, 1979) the plaintiff claims that he was injured and sustained damage, and that the defendant was negligent in one or more of the following respects:
1. It failed to provide the plaintiff with a reasonably safe place to work;
2. It failed to provide sufficient personnel for the plaintiff to conduct his work in a reasonably safe manner;
3. The defendant, through its agents, negligently struck the plaintiff with their cherry picker ***.”
As to the first alleged impropriety, defendant contends that the instruction permitted the jury to believe, by its general allegations of negligence, that the mere happening of an accident to a railroad employee constitutes negligence. Defendant is correct in noting that the Federal Employers’ Liability Act (Federal Act) imposes liability only for negligent acts. (Milom v. New York Central R.R. Co. (7th Cir. 1957),
An issues instruction tells the jury what points are in controversy between the parties and thereby simplifies their task of applying the law to the facts. (Illinois Pattern Jury Instructions, Civil, No. 20.00, Introduction, at 20-4 (3d ed. 1991).) The issues instruction should inform the jury of the issues raised by the pleadings in a clear and concise manner, and this can be accomplished by a summary of the pleadings, succinctly stated without repetition and without undue emphasis. (Signa v. Alluri (1953),
Defendant also claims impropriety in the second allegation of the issues instruction in that the evidence failed to show that the absence of an additional worker to act as a spotter was a proximate cause of plaintiff’s accident. There was testimony, however, from plaintiff, Gatewood, and Dickerson that spotters were used to let the crane operator know where certain workers were, due to the operator’s impaired visibility inside the cab, and to signal the operator when to move the boom. Moreover, Gatewood testified that following plaintiff’s accident, defendant sent two additional men to the work site, and one of those men acted as a spotter, to watch the machine and the men unhooking ties and to give signals to the operator. Defendant contends that because Flowers testified that he was looking directly at plaintiff immediately before the accident, the need for the spotter was negated and there was nothing a spotter could have done to prevent the accident. However, plaintiff testified that he looked at Flowers before he got on the bundles and before Flowers had finished repositioning the cherry picker but that after he was on the bundles hooking the tie dogs, his back was to the cab of the crane. A trial court has discretion in deciding which issues are raised by the evidence. (Ellis,
Defendant lastly argues that since there was no evidence of other causes besides the defendant’s negligence, the giving of plaintiff’s proximate cause instruction was error and allowed the jury to speculate as to other causes when none were involved. More specifically, defendant argues that the short-form proximate cause instruction tendered by it as defendant’s instruction No. 3 should have been given, rather than the long-form proximate cause instruction plaintiff tendered and given as plaintiff’s instruction No. 14, because the only possible cause of plaintiff’s injury shown by the evidence was the alleged negligent acts or omissions of the defendant and its agents. Both of these instructions are versions of IPI Civil 3d No. 15.01, which reads as follows:
“When I use the expression ‘proximate cause,’ I mean [that] [a] [any] cause which, in natural or probable sequence, produced the injury complained of. [It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.]”
Defendant’s tendered instruction No. 3 read as follows:
“When I use the expression ‘proximate cause’ I mean that cause which, in natural or probable sequence, produced the injury complained of.”
Plaintiff’s instruction No. 14, which the court gave to the jury, added the last two bracketed sentences of IPI Civil 3d No. 15.01.
Some courts have held that where there is no evidence that a third party’s negligence was involved in the injury to plaintiff, the long form of IPI Civil 3d No. 15.01 is inapplicable (Bass v. Washington-Kinney Co. (1983),
“While it is possible that the long form of the instruction could, in remote circumstances, prove confusing to a jury when only two parties are involved in an accident, we do not think this is such a case. Other instructions did not allude to the possible acts of third parties; they clearly instructed the jury on how to apportion damages if it found that both parties were negligent and advised the jurors to calculate the comparative negligence of the parties assuming that ‘100% represents [their] total combined negligence.’ Viewed in their entirety, the instructions fully and fairly apprised the jury of the relevant principles [citation] relating to treatment of the plaintiff’s fault.” Casey,111 Ill. 2d at 348-49 ,490 N.E.2d at 7 .
We note in the instant case that plaintiff’s instruction No. 32, Illinois Pattern Jury Instructions, Civil, No. 45.05 (3d ed. 1991), was given to the jury without objection of defendant. This instruction, like the instruction given in the Casey case, advised the jury to calculate the comparative negligence of the plaintiff and defendant. However, the instruction in the instant case also charged the jury to calculate the comparative negligence of all other persons whose negligence proximately contributed
As noted in the drafting committee’s comments to the third edition of IPI Civil No. 15.01, recent decisions have demonstrated a reluctance, similar to that in the Casey case, to hold that the long form of the instruction prejudiced a party. The committee further concluded that it will rarely be error to give the long form of the instruction, and the short form may now be restricted to those cases where the evidence shows that the sole cause of the plaintiff’s injury (other than plaintiff’s predisposition) was the conduct of a single defendant and there is no evidence that the plaintiff’s conduct was a contributing cause.
Committee commentary on use of this pattern instruction in the second edition of Illinois Pattern Jury Instructions provided that the instruction in its entirety, including the last two sentences, should be used only when there is evidence of a concurring or contributing cause to the injury, other than acts or omissions of the plaintiff. In comparison, the Notes on Use for this instruction in the third edition of IPI provide that in cases where there is no evidence that the conduct of any person other than a single defendant was a concurring or contributing cause, the short version without the bracketed material may be used. Therefore, use of the long form seems to be preferred, considering adoption of comparative negligence, with suggested use of the short form being discretionary, rather than mandatory, in situations where there is only one plaintiff and one defendant.
Moreover, although the jury assessed 0% as plaintiff’s comparative negligence in count I, the mere fact that the court gave, without objection, plaintiff’s instruction as to the calculation of comparative negligence indicates to this court that there was evidence in the record that plaintiff’s conduct could have been a contributing cause to his injury. Therefore, because the issue of plaintiff’s comparative negligence would go to the jury, the court did not err in finding that the long form rather than the short form should be used, given the Committee Comments in the third edition of Illinois Pattern Jury Instructions Civil No. 15.01.
We will next address the issue of whether the jury properly awarded damages based on the impairment of plaintiff’s future earning capacity. Defendant contends that the only evidence presented on the measure of damages for plaintiff’s impairment of earning capacity was that he now earns $8 per hour and that he earned $12 per hour as a laborer for defendant railroad. Defendant contends that there was no medical testimony that plaintiff was unable to do the physical labor required on a railroad. Defendant concludes that it was pure speculation by the jury whether or not another railroad would hire plaintiff knowing of his past medical history.
Plaintiff testified, however, that in his job search in Kansas City following his dismissal in 1983, he mentioned the 1979 back injury in the job applications but was turned down for numerous jobs. He testified that he was accepted for employment at various jobs in California when he omitted information about the prior back injury. He also testified that it was necessary for him to leave a number of jobs he had obtained because of the pain. Plaintiff testified that he now and in the past has throbbing continuous pain in his lower to middle back on his right side and that he will get sharp pain followed by numbness in his left leg and left arm on occasion. Finally, plaintiff testified that had he not been discharged in 1984, he would not have been able to continue to work for defendant with his back condition, and the injury had changed the type of work that he was able to do. Dr. Bolton also testified that plaintiff’s injury left permanent scar tissue, that plaintiff would always be plagued with intermittent pain, and that in his opinion it would be up to the individual employer whether they should hire an applicant such as plaintiff with a history of prior back injury.
Finally, we will address the issue of whether comments made by plaintiff’s counsel during closing argument resulted in a verdict based on passion and prejudice, preventing defendant from receiving a fair trial. Defendant first contends that plaintiff’s counsel made the following personal-opinion and adverse-characterization comments concerning Dr. Rosenbaum, defendant’s medical expert witness, which were unsupported by the record and which diverted the jury’s attention from a trial of plaintiff’s case to a trial of defendant’s witness:
(1) Comments that counsel was personally “incensed,” “antagonized,” and “insulted” that Dr. Rosenbaum was hired to come in and find nothing wrong with plaintiff in order to “beat out people like [plaintiff] out of the money they are entitled to” and that “if the jury was not [also] incensed they were not the people he thought he picked for the jury.”
(2) Comments characterizing Dr. Rosenbaum as a “greased pig” that he had been “trying to catch for a long time” and that “Dr. Rosenbaum spends the biggest part of his professional career trying to beat people like [plaintiff out of what they got coming. Does that affect you in this case? Does that affect the way this case was handled?”
(3) The comment, “[t]he only way you can keep this jury system strong, that you are privileged to be a part of, is to not let people like the railroad, and people like Dr. Rosenbaum get away with the things that have been happening in this courtroom while you have been here. You have got to stand up and be counted. Stand up and be counted. And I challenge you to do this on the things that have been happening.” (No objection.)
(4) The comment, “I would ask you to set the conscience of this community and say to the Railroad [objection sustained] and you say to the Railroad, we want to be dealt with honestly. [Objection overruled.] We don’t want to be fiddled with. We don’t want games played with us, and we are going to award the full amount of damages in this case.”
Defendant further contends that counsel argued facts within his own knowledge and not within any of the testimony:
(1) That defendant railroad had the supervisor of litigation in the courtroom. (An objection was sustained.)
(2) That the railroad had people that work on these cases within the railroad. (An objection was overruled.)
(3) That defense counsel was a “very, very experienced defense lawyer” whose firm is very big. (No objection.)
Defendant also contends that plaintiff’s counsel made the following inflammatory comments during closing argument:
(1) The comment defense counsel had made fun of plaintiff’s slowness and his speech yet plaintiff’s counsel also sought undue sympathy from the jury by stating that his client was not an “Einstein” and could not speak well. (No objection.)
(2) The comment made in arguing against the defense of physical impossibility, “Now what do you believe? My
Defendant contends that the cumulative effect of plaintiff’s improper arguments was grossly prejudicial to defendant’s right to a fair and impartial trial and that the jury’s award for future medical care and treatment was therefore the result of passion and prejudice. Defendant contends that there was no evidence as to the type, frequency, or amount of medical treatment plaintiff would require and that the only evidence on the question of future medical expenses was the testimony of Dr. Bolton that plaintiff has needed treatment for almost four years and, in his opinion, plaintiff would need treatment in the future. Defendant argues that the $104,965.56 future portion of the jury’s award for past and future medical expenses resulted from plaintiff’s inflammatory closing argument, especially considering that proven special damages were only $10,034.44. Defendant seeks vacation of the judgment and remand for a new trial with instructions to plaintiff’s counsel to refrain from making the inflammatory comments referred to above. In the alternative, defendant seeks a remittitur of the judgment to $10,034.44, representing a $104,965.56 reduction in the amount of the jury’s award, because any award for future medical expenses was against the manifest weight of the evidence.
We shall address each of the alleged improper comments made during plaintiff’s closing argument seriatim. Initially, we note that the standard of review of the argument complained of is whether the remarks were of such character as to have prevented defendant from receiving a fair trial. (Trice v. Illinois Central Gulf R.R. Co. (1984),
With regard to defendant’s contention that plaintiff’s closing argument was replete with inflammatory personal opinions, plaintiff points out that the record shows that in almost every instance, defendant made no objection or the court sustained defendant’s objection. Generally, failure to object to comments made during closing argument is considered a waiver of the objection (Chloupek,
Defendant did not object when plaintiff’s counsel, in referring to the almost identical examination reports prepared by Dr. Eosenbaum as a defense expert in other cases, stated:
“And, if you are not insensed [sic] as I was, as you could tell what I did and how I felt, if you are not insensed, [sic] then
you are not the people I think I picked for this jury.” (Emphasis added.)
Defendant also did not object to the following portion of plaintiff’s rebuttal argument, except for the last statement thereof:
“And then they do the epitome. I just wanted to show you, I don’t know whether this antagonizes you as it does me, or if it insults you as it does me, but the technique, the way they defended this case, *** was they bring in this Rosenbaum, this doctor.
On the farm, we used to have sometimes a picnic and fairs. We had greased pig contests. Maybe none of you have ever been to one. But, I will tell you, a pig is a hard thing to catch anyway, but a greased pig is really hard. And I have been trying to catch this greased pig for a long time. You could tell that by the cross[-]examination. And I caught him. I finally caught him. And I am so proud that we caught him in this case.
What they do, and you can see what they do, they hire him to find nothing wrong, and that is exactly what he does. He comes high, but he does exactly why they hire him. You can see why we send a nurse there because you heard from her that all the stuff he obviously, when you read this, he has on a computer, he doesn’t even do *** a lot of the tests that he claims he does.
And what they do is, they hire a guy like that. Does that affect your judgment on the way they are treating one of their former employees and their defense in this case? Does it in-sense [sic] you as it does me?” (Emphasis added.)
Defendant objected to the last statement, contending that the argument had nothing to do with the issues of the case, but the court overruled the objection as final argument.
Defendant compares the closing argument remarks of plaintiff’s counsel comparing Dr. Rosenbaum to a “greased pig” to the remarks of counsel in Regan v. Vizza (1978),
We find that the comments here were more in the nature of questioning Dr. Rosenbaum’s credibility rather than insult or abuse of a witness upon no legitimate ground in the evidence. In Regan, where defendant’s counsel compared plaintiff’s medical expert to a “hired gun,” the testimony showed that this witness was a specialist physician who worked at the hospital where plaintiff sought medical attention and was referred not by plaintiff’s attorney but by the emergency room physician who first treated the plaintiff. (Regan,
Moreover, plaintiff argues that comments attacking the credibility of Dr. Rosenbaum and his diagnosis finding nothing medically wrong with plaintiff were justified as a fair response to defendant’s attacks in its closing argument on the diagnosis and prognosis of plaintiff’s injuries made by plaintiff’s treating physicians. The jury determines credibility of witnesses and the weight to be given their testimony. (Elliott v. Koch (1990),
We agree -with defendant that it is improper for counsel to argue to the jury facts in his own knowledge which had not been testified to by any witness. (Bulleri v. Chicago Transit Authority (1963),
Finally, as to comments regarding the jury being the conscience of the community, where plaintiff is not entitled to exemplary damages it is improper to argue that a large verdict should be rendered as a deterrent to other wrongdoers. (Chicago Union Traction Co. v. Lauth (1905),
Damages are peculiarly an issue of fact for a jury to determine and are subject to reversal when excessive, that is, a reviewing court will not disturb a jury’s award of damages unless obviously the result of passion or prejudice. (Chambers v. Rush-Presbyterian-St. Luke’s Medical Center (1987),
Plaintiff’s counsel suggested $300,000 as reasonable damages to award plaintiff for the injuries alleged in count I of the complaint, and the jury awarded $175,000. Out of this award the jury assessed $115,000 for past and future medical expenses, thus the $104,965.56 portion representing future medical expenses was approximately 10 times the amount of plaintiff’s proven special damages of $10,034.44. Although defendant argues that this proves that the verdict was a result of passion and prejudice, the record indicates that plaintiff was 35 years old at the time of trial and had a remaining life expectancy of 34.1 years. Plaintiff also testified that he did not seek any medical care after 1984 because he could not pay the bills, so the jury could reasonably have assumed that plaintiff’s past medical expenses could have been much higher and accordingly projected future medical expenses in an amount 10 times higher than the special damages. Moreover, Dr. Bolton testified that plaintiff’s injury was permanent and that he would have intermittent pain in the future. Thus, the jury could reasonably have found that for the rest of plaintiffs life he would quite assuredly need access to some continuing medical care for his injury and that nearly $105,000 approximated the cost of that care over the next 34 years. We conclude, therefore, that the verdict does not fall outside the limits of fair and reasonable compensation, that there is no indication that it resulted from passion or prejudice, and that it is not so large as to shock the judicial conscience under the facts of this case.
Accordingly, the May 18, 1989, judgment of the circuit court of St. Clair County is affirmed.
Affirmed.
HARRISON, J., concurs.
Dissenting Opinion
dissenting:
I write this dissent because I believe numerous comments made by plaintiff’s counsel during closing argument, particularly on rebuttal, taken as a whole prevented defendant from receiving a fair trial. Specifically, I find fault with counsel’s adverse characterizations of Dr. Rosenbaum in connection with counsel’s inflammatory personal opinions which served only to arouse the prejudice and passions of the
I further disagree with the majority with respect to the issue of discovery sanctions for failing to produce a copy of the notes Mary Schulte made during plaintiff’s medical examination. Regardless of whether the withholding of the notes was intentional or not, the fact of the matter is that the notes were not disclosed in discovery. I believe Schulte should not have been allowed to testify from these notes. To hold otherwise countenances violation of discovery rules. (See Ferenbach v. DeSyllas (1977),