Moore v. Mandele

230 N.E.3d 696

2023 IL App (5th) 220289

Etta MOORE, Plaintiff-Appellee,

v.Teresa MANDELE, Defendant-Appellant.

NO. 5-22-0289

Appellate Court of Illinois, Fifth District.

Rule 23 Order Filed April 26, 2023

Motion to Publish Allowed May 26, 2023

Opinion Filed May 26, 2023

Appeal from the Circuit Court of Jackson County. No. 17-L-80, Honorable Christy W. Solverson, Judge, presiding.

Adam S. Johnson, Michael C. Schroer, and Nicholas C. Martin, of Lewis Brisbois Bisgaard & Smith LLP, of Edwardsville, for appellant.

Kristin Barnette McCarthy and Olivia N. Schwartz, of Kralovec, Jambois & Schwartz, of Chicago, and Clyde L. Kuehn, of Mathis, Marifian & Richter, Ltd., of Belleville, for appellee.

OPINION

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

¶ 1 This appeal arises out of a negligence and personal injury lawsuit from the circuit court of Jackson County. Following a five-day trial, the jury returned a verdict in favor of the plaintiff, Etta Moore, finding the defendant, Teresa Mandell, negligent and liable for the plaintiff’s personal injuries and awarding her damages. The defendant now appeals that verdict and award arguing that the trial court erred when it barred (1) evidence and testimony related to the plaintiff’s 2009 preaccident right shoulder injury, (2) admission of evidence and testimony of statements the plaintiff made months before trial to her medical providers in which she denied having functional impairments that she later claimed at trial, and (3) admission of impeachment evidence and testimony of the plaintiff’s medical expert, Dr. Rhode, regarding bias, prior disciplinary actions, communications with counsel, and expert history. The plaintiff’s counsel has conceded that the trial court erred in barring admission of impeachment evidence and testimony regarding Dr. Rhode, and thus, we reverse the trial court’s judgment and remand for a new trial.

¶ 2 I. BACKGROUND

¶ 3 We initially note that for the sake of brevity and judicial economy we only recite the facts relevant and necessary to our disposition of this matter.

¶ 4 A. General Facts and Pretrial History

¶ 5 The plaintiff in this matter was born with spina bifida that paralyzed her legs from the knees down. Despite not being able to walk, she learned to move around her house by crawling or by using her manual wheelchair. When moving about outside of her home, she often employed the aid of a motorized scooter. On September 30, 2015, an accident occurred involving a vehicle operated by the defendant and the plaintiff. The vehicle of the defendant struck the plaintiff, who at the time of the accident was traveling on her motorized scooter and attempting to cross a public roadway. The plaintiff was taken to a hospital nearby and treated for various injuries, including a dislocation to her right shoulder and severe pain. The plaintiff was admitted to the hospital and stayed until her discharge on October 2, 2015.

¶ 6 Following discharge from the hospital, she returned to her home. After a period of transition and limited recovery at home, the plaintiff was prescribed physical therapy for her injuries. The plaintiff participated in the physical therapy but made limited progress. She was then referred to orthopedic surgeon, Dr. Treg Brown. After conservative treatment and monitoring over a few visits, Dr. Brown ordered an MRI of the plaintiff’s injured shoulder. The MRI was completed on January 4, 2016, and Dr. Brown diagnosed, inter alia, a rotator cuff tear. He recommended the plaintiff undergo surgery to repair the rotator cuff. The plaintiff’s rotator cuff repair surgery was performed on March 25, 2016. Three and a half months later, the plaintiff was discharged following a visit with Dr. Brown on August 4, 2016.

¶ 7 Prior to her discharge from Dr. Brown’s care, the plaintiff was undergoing physical therapy to rehabilitate her rotator cuff and shoulder. She continued with this therapy following her discharge. As time passed, the plaintiff began to develop issues relating to the right side of her neck, including pain and soreness, and left shoulder pain.

¶ 8 On September 19, 2017, the plaintiff filed the instant action against the defendant alleging that, as a result of the defendant’s negligence, the plaintiff "sustained serious and permanent injuries; was required, [and] will be required in the future, to seek extensive medical consultation and treatment; has expended and will in the future continue to expend great sums of money to be healed and cured of her maladies; [and has] suffered and will in the future continue to suffer great pain, anguish and suffering."

¶ 9 During the pendency of this lawsuit, the plaintiff was then referred to a pain management specialist, Dr. Akshay Vakharia, by her primary care physician. The plaintiff’s first visit with Dr. Vakharia occurred on August 9, 2018. Dr. Vakharia had the plaintiff continue her previously prescribed pain medication and additionally prescribed a trigger point injection in the plaintiff’s deltoid muscle to reduce the neck pain and shoulder pain.

¶ 10 On September 4, 2019, following continuing pain and other problems with her right shoulder, the plaintiff met with orthopedic surgeon, Dr. Blair Rhode, for a second opinion regarding her injuries. Dr. Rhode ordered an MRI and concluded from the MRI image that the plaintiff’s right shoulder rotator cuff had healed. He recommended the plaintiff see a physical therapist if the pain worsened and indicated there was no further treatment option available but physical therapy for the ongoing pain in the right shoulder. The plaintiff only met with Dr. Rhode on one occasion.

¶ 11 B. Pretrial Discovery and Rulings

¶ 12 The plaintiff in her discovery deposition testified that she had no prior problems with her right shoulder before the accident. However, during discovery, the defendant obtained medical records, which indicated that in 2009 the plaintiff sustained an injury to her right shoulder when she was moving her wheelchair out of her vehicle. Following the injury, the plaintiff reported to the Memorial Hospital of Carbondale emergency room and related complaints about her right shoulder. An X-ray was completed, which disclosed no evidence of acute fracture or dislocation but disclosed mild hypertrophy of one joint. The medical records indicated that the plaintiff had been diagnosed with "right shoulder pain—likely rotator cuff injury vs. strain." Based upon the available record, this is the only medical visit that the plaintiff had related to her right shoulder until after the 2015 accident.

¶ 13 Multiple motions in limine were filed by both parties prior to trial regarding the evidence depositions taken by the parties. Relevant to the issues at hand, the trial court struck the defendant’s cross-examination of Dr. Rhode regarding Dr. Rhode’s communications with the plaintiff regarding preparation of an expert report prior to becoming a treating physician of the plaintiff, Dr. Rhode’s professional reprimands, Dr. Rhode’s prior work as a hired expert physician for plaintiffs and claimants, and Dr. Rhode’s financial compensation derived from expert litigation work.

¶ 14 C. Trial

¶ 15 On December 6, 2021, following an admission of negligence on the part of the defendant, the trial in this matter commenced before a jury on damages. During the trial, it was undisputed that the plaintiff suffered a dislocation of her right shoulder because of the 2015 accident. It was further undisputed that in 2016, after the accident, the plaintiff was discovered to have a right shoulder rotator cuff tear that required surgery to repair. Disputed among the parties, however, was whether the plaintiff’s right shoulder rotator cuff tear was caused by the accident or whether it was a result of a prior alleged injury which occurred in 2009. Also disputed was whether the plaintiff made a full recovery following the surgical repair of her rotator cuff or if she continued to have ongoing pain and functional limitations even after recovery from the surgery.

¶ 16 During the trial, the plaintiff called a number of witnesses to testify, including medical providers and relatives. For brevity, we do not recite the testimony of the witnesses not relevant to the resolution of this disposition.

¶ 17 Dr. Michael Chipman testified that he was the emergency room physician who treated the plaintiff at Carbondale Memorial Hospital following the 2015 accident. He testified that the plaintiff presented to him with right shoulder pain and abrasions to her body. She complained of pain and was given morphine, and eventually Dilaudid, to keep her pain under control. He diagnosed her with a right shoulder dislocation. He testified that following sedation, the plaintiff’s right shoulder was put back into place. He then testified that the plaintiff was admitted to the hospital for further treatment and observation as a result of her continued high level of pain and inability to use her upper arms, especially in combination with her spina bifida, which led to a general fear of her ability to take care of herself. He did not treat her after that visit, and he did not offer any opinions on her recovery or other alleged injuries.

¶ 18 Dr. Quincy Scott, a family care physician with Southern Illinois University Family Medicine (SIU Family Medicine), testified that he also treated the plaintiff. He testified that while in the hospital following the 2015 accident, the plaintiff was treated with regular doses of IV pain medication, but that she still reported high pain, such as "10/10" and "8/10." He testified that he ordered physical and occupational therapy evaluations and treatment for the plaintiff while she was in the hospital. He then discharged the plaintiff with pain medication and prescriptions for home physical therapy, a Hoyer lift, to aid her in getting in and out of bed, and a bedside commode. Dr. Scott then testified regarding the plaintiff’s subsequent visits to his office, where...