Campbell v. Autenrieb

2018 IL App (5th) 170148

109 N.E.3d 332

Steven CAMPBELL, Plaintiff–Appellant,

v.Kevin AUTENRIEB, Defendant–Appellee.

NO. 5–17–0148

Appellate Court of Illinois, Fifth District.

Opinion Filed: July 10, 2018

Rehearing denied August 13, 2018

Roy C. Dripps III, Charles W. Armbruster III, and Michael T. Blotevogel, of Armbruster, Dripps, Winterscheidt & Blotevogel, LLC, of Maryville, for appellant.

Michael P. Murphy, of Freeark, Harvey & Mendillo, P.C., of Belleville, for appellee.

JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion.

¶ 1 This appeal stems from a two-count complaint brought by plaintiff, Steven Campbell, to recover damages caused by the alleged strict liability and negligence of defendant, Kevin Autenrieb, in failing to keep his dog under control. Plaintiff's action ultimately proceeded to a jury trial, where the trial court directed a verdict on liability in favor of plaintiff and against defendant at the close of all evidence. The jury returned a verdict of $16,000 in damages in favor of plaintiff and against defendant. On appeal, plaintiff argues (1) the trial court erred in admitting certain medical testimony regarding potential alternative causes of plaintiff's injuries and (2) the jury's award of damages was against the manifest weight of the evidence. For the following reasons, we reverse and remand this cause for further proceedings consistent with this opinion.

¶ 2 BACKGROUND

¶ 3 The following pertinent testimony was adduced at trial. We limit our discussion to the evidence necessary to provide context.

¶ 4 A. Plaintiff's Testimony

¶ 5 Plaintiff testified that on July 18, 2012, while he was working for his employer, United Parcel Service (UPS), an unleashed dog owned by defendant lunged at plaintiff and "knocked [him] back." Plaintiff injured his back as a result of the incident. Thereafter, plaintiff went to Midwest Occupational Medicine to receive medical treatment. Plaintiff did not finish his work shift that day.

¶ 6 Plaintiff returned to Midwest Occupational Medicine eight days after the incident and reported he was feeling much better, which plaintiff attributed to the medicine he was taking. Plaintiff volunteered to take vacation time off work during this period "to give [himself] every opportunity to get rid of the pain." Plaintiff testified he was working again by late July or early August 2012 but was not performing his regular duties.

¶ 7 Plaintiff again returned to Midwest Occupational Medicine in September 2012 due to recurring back pain. Plaintiff eventually consulted a specialist, Dr. Kennedy, in November 2012. Dr. Kennedy prescribed plaintiff physical therapy and injections. Plaintiff testified he followed all of Dr. Kennedy's instructions. The last day plaintiff was treated by Dr. Kennedy was March 18, 2016.

¶ 8 Plaintiff testified he missed time from work between July 2012 and September 2015. In July 2014, UPS instructed plaintiff to see Dr. DeGrange, who ordered plaintiff back to work after conducting an examination. Plaintiff testified he was not working prior to being examined by Dr. DeGrange. When plaintiff returned to work, he had not completed all of the physical therapy prescribed by Dr. Kennedy. Plaintiff worked for a couple weeks following his appointment with Dr. DeGrange before injuring his back while moving a deer stand for UPS. Plaintiff subsequently took a leave of absence from work and went to see Dr. Kennedy, who recommended physical therapy and conservative treatment. Plaintiff returned to work in September 2015.

¶ 9 Plaintiff testified that from September 2012 until the present day, "[t]here isn't a day that goes by that I don't have pain." Plaintiff described his pain as a serious bruise in his back and testified he has pain which radiates down his leg. Plaintiff stated he is able to function on some days with medication and struggles on other days. Plaintiff testified he had incurred $200,000 in lost wages since the incident. Plaintiff further testified he no longer vacations and was forced to sell his motorcycle, boat, and camper as a result of the incident.

¶ 10 On cross-examination, plaintiff was impeached based on an incorrect discovery response to a question regarding whether plaintiff was able to return to work following the incident. Plaintiff responded he was unable to return to work and had not returned to work since the incident, when in fact plaintiff had worked for a period of time following the incident. Plaintiff conceded UPS records showed plaintiff engaged in work activity from August 2012 to April 2013. Plaintiff also testified that on the day of the incident, he experienced unbearable pain which he essentially marked as a "ten out of ten pain." When plaintiff returned to Midwest Occupational Medicine the day after the incident, however, he testified he marked his pain level as a 3 or 4 out of 10.

¶ 11 Further evidence adduced on cross-examination showed the physicians who treated plaintiff at Midwest Occupational Medicine following the incident did not recommend that plaintiff be taken off work. From April 2013, when plaintiff took a leave of absence from work, until August 2014, plaintiff testified the only treatment he received was from Dr. Kennedy. Also on cross-examination, plaintiff testified he did not work from October 29, 2014, until September 21, 2015, following an incident in which he was injured while moving a deer stand at work. Plaintiff testified he did not agree that it was common for individuals in his employment position to have bad backs. Plaintiff conceded that no physician had placed any type of restriction on him at the time of trial.

¶ 12 B. Dr. Kennedy's Testimony

¶ 13 Plaintiff presented deposition testimony from Dr. Kennedy, a board-certified neurosurgeon who initially treated plaintiff on November 28, 2012. After performing a physical examination on plaintiff, Dr. Kennedy testified the most notable findings were that plaintiff had significant limitation in the range of motion of his back and plaintiff's ability to bend forward was significantly reduced. Dr. Kennedy recommended physical therapy in addition to injections into the areas of particular tenderness in the muscle groups. Dr. Kennedy continued to treat plaintiff until early 2016. Dr. Kennedy testified that an MRI conducted early in plaintiff's treatment showed bulging discs and an annular fissure. Dr. Kennedy testified it was evident from the MRI that plaintiff's annulus had been injured, which he opined was likely a result of the dog incident.

¶ 14 Dr. Kennedy further testified he was aware of an examination of plaintiff performed by Dr. DeGrange in 2014 that recommended plaintiff return to work without restrictions. Dr. Kennedy testified that Dr. DeGrange's opinion about plaintiff's ability to return to work was very different from his opinion, which concluded plaintiff was not ready to return to work. Dr. Kennedy also testified regarding the incident in which plaintiff injured his back on October 29, 2014, as he was delivering a deer stand. Dr. Kennedy opined this event was not a new injury but an aggravation of his prior injury. Dr. Kennedy opined that because plaintiff "never really fully recovered" from his prior injury, he was "vulnerable to events that otherwise might not bother him."

¶ 15 Dr. Kennedy testified he last saw plaintiff in March 2016. At that time, Kennedy testified plaintiff was generally able to function but was not symptom-free and experienced aching pains. Kennedy opined plaintiff was not medically able to work for UPS without restrictions from July 18, 2012, the date of the dog incident, until he released plaintiff to return to work in September 2015.

¶ 16 C. Dr. DeGrange's Testimony

¶ 17 Defendant presented deposition testimony from Dr. DeGrange, a board-certified doctor who first examined plaintiff in July 2014 at the request of plaintiff's employer, UPS. Dr. DeGrange testified plaintiff had a chief complaint of low back pain, and the symptoms were present on a daily basis. He identified plaintiff's complaint to be at the lumbosacral area. Dr. DeGrange characterized the symptoms as "frequently mild, meaning they were definitely there and noticeable and occasionally moderate causing significant problems with activities either professionally or of daily living." Dr. DeGrange's physical examination of plaintiff concluded he did not look particularly uncomfortable and he did not have acute distress. Dr. DeGrange opined the diagnosis of plaintiff's injury was a lumbar strain. Dr. DeGrange opined plaintiff reached maximum medical improvement by July 26, 2012, which was eight days after the dog incident, and plaintiff did not need any additional medical treatment thereafter. Dr. DeGrange further opined the dog incident may have aggravated plaintiff's preexisting degeneration and plaintiff had no permanent injury to his low back as a result of the dog incident. Dr. DeGrange testified that after seeing plaintiff in July 2014, he did not place any restrictions on plaintiff's activities and released plaintiff to return to work.

¶ 18 Dr. DeGrange also testified he examined plaintiff a second time in February 2015 following the incident in which plaintiff injured himself while moving a deer stand for UPS. Dr. DeGrange's second examination concluded plaintiff sustained a lumbar strain and plaintiff had symptoms of a radiculopathy that involved his right leg. Dr. DeGrange opined that none of the symptoms or findings he made on his second evaluation of plaintiff were related to the dog incident.

¶ 19 D. Cross–Examination Testimony Admitted Over Plaintiff's Objection

¶ 20 During trial, plaintiff sought to exclude certain cross-examination testimony that defense counsel elicited from Dr. Kennedy regarding potential alternative causes of plaintiff's injuries, arguing the testimony was not offered to a reasonable degree of medical certainty. Plaintiff alleged the testimony was prohibited under our supreme court decision in Voykin v. Estate of DeBoer ...