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Motion 19-Defendant's Motion for Remittitur of Judgment in Car Accident Case
O'Hagan, Smith & Amundsen, L.L.C., One of the Attorneys for Defendant, Elizabeth Felt Wakeman, O'Hagan, Smith & Amundsen, L.L.C., 666 Russel Ct., Ste. 300a, Woodstock, Il 60098, 815/337-4900
The defendants, RONALD WEIDNER and RONALD WEIDNER and RONALD WEIDNER, INC., hereinafter referred to collectively as WEIDNER, move this Honorable Court for post trial relief pursuant to 735 ILCS 5/2-1202. Specifically, defendants seek an Order setting aside the itemized verdict returned by the jury on March 23, 2000, and the judgment entered thereon, and granting the defendants a new trial on all issues, partial judgment notwithstanding the verdict, or a remittitur of the judgment. In support thereof, the defendants state as follows:
1. On March 23, 2000, this Honorable Court entered a judgment on a jury verdict as follows:
- in favor of the plaintiff, JUNE HISCOTT, and against defendant, ROSS PETERS, in the amount of $52,975.70 plus costs;
- in favor of the plaintiff, GEORGE HAIRCUT, and against defendant, ROSS PETERS, in the amount of $22,980 plus costs;
- in favor of the plaintiff, JUNE HAIRCUT, and against defendants, WEIDNER, in the amount of $476,781.30 plus costs;
- in favor of the plaintiff, GEORGE HAIRCUT, and against defendants, WEIDNER, in the amount of $206,820 plus costs.
A copy of said order is attached hereto and marked as Exhibit 1.
2. That order was based upon jury verdicts which assessed liability in favor of both plaintiffs with liability apportioned to be 90% attributed to WEIDNER and 10% attributed to ROSS PETERS, hereinafter referred to as PETERS. A copy of the verdict in favor of JUNE HAIRCUT is attached hereto and marked as Exhibit 2. A copy of the verdict in favor of GEORGE HAIRCUT is attached hereto and marked as Exhibit 3.
3. The verdict with respect to JUNE HAIRCUT awarded damages as follows:
- The reasonable expense of past medical care, treatment, and services received as a result of the injuries: $79,757
- The present cash value of future reasonable expenses of medical care, treatment and services reasonably certain to be received in the future as a result of the injuries:
- The past pain and suffering experienced as a result of the injuries: $ 100,000
- The pain and suffering reasonably certain to be experience in the future as a result of the injuries: $110,000
- The disability resulting from the injuries: $50,000
- The disfigurement resulting from the injuries: $30,000
- The emotional distress experienced and reasonably certain to be experienced in the future as a result of the injuries: $150,000
4. The verdict with respect to GEORGE HAIRCUT awarded damages as follows:
- The reasonable expense of past medical care, treatment, and services received as a result of the injuries: $24,800
- The past pain and suffering experienced as a result of the injuries: $50,000
- The pain and suffering reasonably certain to be experience in the future as a result of the injuries: $5,000
- The emotional distress experienced and reasonably certain to be experienced in the future as a result of the injuries: $150,000
5. Subsequently, on April 26, 2000, this Honorable Court awarded costs in the amount of $ 1,138.22 in favor of the plaintiff and against defendants, PETERS and WEIDNER. A copy of that order is attached hereto and marked as Exhibit 4.
6. On April 12, 2000, this Honorable Court granted defendants, WEIDNER, an extension of time to file post trial motions until May 22, 2000 due to the court reporter's inability to obtain trial transcripts before May 8, 2000. A copy of said order is attached hereto and marked as Exhibit 5.
On June 17, 1997, Ronald Weidner was driving a truck owned by Ronald Weidner, Inc. northwest bound on Route 60/83 in the Diamond Lake area. A white Cadillac travelling in front of Mr. Weidner suddenly stopped and veered to the right apparently due to the presence of a stopped white full size van. Mr. Weidner was unable to stop without hitting the van. The van was pushed forward into a Jeep stopped in front of the van.
Ross Peters, travelling southeast bound on Route 60/83 saw a portion of Mr. Weidner's truck enter his lane of traffic. He swerved to the right onto the gravel shoulder, returned to his lane of traffic and then crossed into the northwest bound lane of traffic. George and June Hiscott were travelling in the northwest bound lane of traffic and collided with Ross Peters' vehicle head on.
1. Plaintiffs filed a First Amended Complaint at Law which is attached hereto and marked as Exhibit 6. That First Amended Complaint contained 4 counts.
- Count I was filed on behalf of GEORGE HISCOTT and was directed to defendants, WEIDNER, sounding in negligence and seeking compensation for personal injuries.
- Count II was filed on behalf of JUNE HISCOTT and was directed to defendants, WEIDNER, sounding in negligence and seeking compensation for personal injuries.
- Count Ill was filed on behalf of GEORGE HISCOTT and was directed to defendant, PETERS, sounding in negligence and seeking compensation for personal injuries.
- Count IV was filed on behalf of JUNE HISCOTT and was directed to defendant, PETERS, sounding in negligence and seeking compensation for personal injuries.
2. In response to the First Amended Complaint all defendants filed an answer generally denying all material allegations. See Answer of WEIDNER attached hereto and marked as Exhibit 7 and Answer of PETERS attached hereto and marked as Exhibit 8.
3. Further each defendant also filed an affirmative defense asserting the comparative fault of GEORGE HISCOTT. Said affirmative defenses were withdrawn at the time of trial.
4. Defendants, WEIDNER, filed a Counterclaim for Contribution directed to PETERS which is attached hereto and marked as Exhibit 9. PETERS filed an Answer to said Counterclaim which is attached hereto and marked as Exhibit 10.
5. Similarly, PETERS, filed a Counterclaim for Contribution directed to WEIDNER which is attached hereto and marked as Exhibit 11. WEIDNER filed an answer to said Counterclaim which is attached hereto and marked as Exhibit 12.
6. PETERS also filed a Complaint seeking damages for personal injury. That case was consolidated with the case presently at issue and was nonsuited the week before trial.
I. The apportionment of liability in the amount of 90% to Weidner and 10% to Peters was against the manifest weight of the evidence.
Because the apportionment of liability in this case was against the manifest weight of the evidence, a new trial must be granted. In Illinois, the law provides that when reviewing a question of whether a new trial should be granted, the court is not to apply the standard for a directed verdict as outlined in the Pedrick case, but is to weigh the evidence and set aside a verdict if the verdict is contrary to the manifest weight of the evidence. Mizowek v. DeFranco. 64 Ill. 2d 303, 356 N.E. 2d 32, 35, 1 Ill. Dec. 32,36 (1976). In order to determine if a directed verdict should be entered, the court should review the case in accordance with the Pedrick standard which is whether,” .... all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria and Eastern R.R., 37 Ill. 2d 494, 229 N.E. 2d 504, 510 (1967).
When evaluating whether a new trial should be granted the court should weigh the evidence and order a new trial if the verdict is contrary to the evidence. Mizowek v. DeFranco. 64 Ill. 2d 303, 356 N.E. 2d 32, 35,1 Ill. Dec. 32,36 (1976). In so doing, the court is to consider all of the evidence and weigh it independently. In Mizowek, the case involved an automobile accident in which a verdict in favor of the defendant was returned. Plaintiffs motions for j.n.o.v and alternatively for a new trial were denied. The appellate court reversed and remanded with instructions to enter a judgment in favor of the plaintiff. The defendant appealed. The Supreme Court held that there was no basis for a directed verdict or j.n.o.v. since it was clear that when all of the evidence was viewed most favorably to the defendant that it so overwhelmingly favored the plaintiff that no verdict in favor of the defendant could stand. Mizowek, 356 N.E. 2d at 35, 1 Ill. Dec. at 36. However, the court further held that the jury's verdict was contrary to the manifest weight of the evidence so that a new trial was required. Mizowek, 356 N.E. 2d at 36, 1 Ill. Dec. at 36.
The facts in Mizowek were that the plaintiff was a passenger in the front seat of the defendant's car. Plaintiff and defendant were southbound heading towards a stop sign. The defendant stopped at the stop sign and continued on towards a curve in the road. Defendant failed to negotiate the curve, jumped the curb so that the car traveled 116 feet until it struck trees and overturned. Defendant testified that the area was dark and he was having trouble seeing and that he was blinded by the headlights of an on coming car. Several witnesses testified that the defendant was travelling at an excessive rate of speed before jumping the curb. Defendant reported to the investigating officer that his accelerator stuck so his car was picking up speed. Mizowek, 356 N.E.2d at 34, 1 Ill. Dec. at 34. Overall, there were apparently substantial issues of credibility and several versions of the facts of the accident presented at trial.
In the present case, there were essentially two versions of the accident presented. First, Mr. Weidner's testimony which was that he was 12 to 18 inches across the center line when Peters left the road way, entered the gravel shoulder, released the brake and returned to the roadway crossing the center line and impacting the Hiscotts at essentially full speed. Mr. Weidner's version is supported by the testimony of Mr. Behrendt, the independent eyewitness, and to the extent that they witnessed the accident , the Hiscotts themselves. Even Mr. Peters' expert supports Mr. Weidner's report of where Peters' vehicle was when Peters first saw Weidner. Next, there is Peters' version of the story. Peters suggests that he was right at the truck which entirely took up his lane of traffic when he suddenly left the road. He has no recollection of what happened next until the air bag deployed upon impact with the Hiscott vehicle.
The evidence in this case clearly demonstrated that Peters had more opportunity to react safely to the truck in his lane of traffic than Weidner had to react to the van in front of him. Weidner had, according to his testimony, approximately 70 feet in which to react to the sudden swerving of the Cadillac in front of his and his awareness of the van in the roadway. Weidner testified that there was at least 70 feet between his vehicle and Peters vehicle at the time of the impact between the Weidner truck and the white van. Furthermore, Peters had an additional 100 to 125 feet before colliding with the Hiscott vehicle. While Weidner was at most 18 inches into the oncoming lane of traffic, Peters' vehicle was entirely in the lane of oncoming traffic. Finally, Peters was driving with only one hand on the wheel according to the independent eyewitness, Charles Behrendt.
Peters' opinion witness, accident reconstructionist, Robert Seyfried, testified that Peters was at least 50 feet from the Weidner truck when he first saw the truck. Seyfried also testified that there is no possible way that the Weidner truck was entirely in Peters' lane of traffic or that the entire front end of the truck was in Peters' lane of traffic, contradicting Peters own testimony.
Seyfried's opinions regarding speed and reaction time were improperly admitted into evidence over objection of both plaintiffs and Weidner, as discussed below, but still do not support the verdict in this case. Seyfried testified that based upon a travelling distance of 60 feet per second, Peters had approximately 1 second to react. Logic and common sense tell you that Weidner had essentially the same reaction time to the van in front of him. However, Peters had additional time to maintain control of his car as he traversed the additional 100 to 125 feet before he crossed the centerline and collided with the Hiscott vehicle.
Seyfried asserted that it was his opinion that Peters was faced with an emergency situation. As discussed below, that opinion also should have been barred as there was no basis in the depositions for that opinion. Nevertheless, his testimony was allowed to stand. However, that testimony contradicts the testimony of Peters himself at trial. Peters testified that he was not aware of the postman or any other factor between the time he first saw the truck and the time of impact. By his own testimony, all he remembers is leaving the roadway after seeing a truck and then his air bag deploying upon impact. Deputy Burns and Charles Behrendt also testified that there was no hazard on the shoulder that was in Peters' way.
In fact, all of Peters' testimony regarding the facts of the accident have been contradicted, mostly by his own expert. Peters testified that he did not see the truck until he was right on top of it. Seyfried testified that that was impossible and testimony of eyewitnesses to the accident , Behrendt, Burns and Weidner also contradicted Peters' testimony. Peters testified that the truck was entirely in his lane of traffic when Peters first saw it. Seyfried said that was impossible and again the physical damage to the vehicles and the testimony of Weidner, Burns and Behrendt show that it cannot possibly be true. Peters testified that the entire front end or cab of the truck was in his lane. Again, specifically contradicted and disproved by his own expert and reliable eyewitnesses as well as the physical damage.
Testimony was offered by Deputy Burns that Peters' lane of traffic was 12 feet wide with a 7 foot shoulder. His vehicle was between 6 and 7 feet wide. Therefore, Peters had ample space to maneuver his vehicle entirely on the roadway with the Weidner truck 12 to 18 inches over the centerline. None of this testimony was impeached or contradicted.
So, with it clear that there is great support for the position that Peters was in a far better position to avoid an accident , and that he failed to do so. And, with evidence presented that Peters' version of the story is physically impossible, the question for the court is whether this is sufficient to be determined to be against the manifest weight of the evidence so that a new trial is required. To determine if a verdict is against the manifest weight of the evidence, the court must look to whether,” .... the opposite conclusion is clearly evident or where the findings of the jury are unreasonable, arbitrary and not based upon any of the evidence.” Maple v. Gustafson, 151 Ill. 2d 445, 603 N.E. 2d 508, 512, 177 Ill. Dec. 438, 443 (1992). In Maple, the court also discussed that the trial court's decision to grant a new trial would be overturned only with an abuse of discretion. The court outlined the factors which supported deference to the trial judge which seems to also suggest the trial court should consider when ruling on a motion for a new trial. Maple, 603 N.E. 2d at 512, 177 Ill. Dec. at 443. A reviewing court will look to whether the losing party was denied a fair trial. This is discussed in greater detail with respect to the failure to allow evidence regarding Peters' cell phone use and the admission of Seyfried's testimony regarding Peters' speed, path of travel and reaction time. The court will also look to whether the verdict is supported by the evidence. As discussed above, there is no evidence to support Peters' rendition of the facts. The court in Maple further referred to the trial court's ability to judge the credibility of the witnesses. In this case, Ross Peters is not credible which was confirmed with the evidence that consistently contradicted his story.
While deference to a jury's verdict is an important aspect of the civil process, that is not so when a jury's verdict is clearly against the manifest weight of the evidence presented at trial. When a verdict is against the manifest weight of the evidence, it is the court's responsibility and obligation to rectify the erroneous verdict. The court is not to look to whether any verdict in favor of plaintiff or counterplaintiff, Peters, could stand, but rather whether the verdict was against the weight of the evidence. In this case, that would require setting aside the verdict of the jury and setting the matter for a new trial.
II. The damages awarded to June Hiscott for her future pain and suffering were against the manifest weight of the evidence.
Over objection of all defense counsel, the court gave the plaintiff's IPI 30.01 which included (1) reasonable expense of necessary medical care, treatment and services, (2) past pain and suffering (3) future pain and suffering (4) disability and (5) disfigurement, and (6) emotional distress experienced and reasonably certain to be experienced in the future regarding June Hiscott's damages. The jury verdict forms itemized those elements of damages. The jury returned a verdict in the amount of $ $110,000 for future pain and suffering.
The discussion of the application of the effect of a verdict against the manifest weight of the evidence will not be repeated with respect to this point, but the application is entirely the same. A life table was admitted pursuant to stipulation that stated that June Hiscott could be expected to live 11.3 years. Dr. Baier's testimony was that she would not be in need of a knee replacement within the next 20 to 30 years. June Hiscott recovered an amount of money for future medical expenses, which included the possibility of a wrist fusion, although Dr. Baier testified she might have needed that even without the accident. Dr. Baier further testified that with a wrist fusion, she would be pain free. Dr. Baier testified that June Hiscott had prior arthritis and likely suffered some pain associated with that arthritis. There was no medical testimony that June Hiscott continues to suffer from pain or discomfort today other than some limitation of movement with respect to her wrist. If she has the surgery which she recovered payment for, it is uncontradicted that she will be pain free. Finally, June Hiscott's own testimony was that except for one doctor visit, she has not sought medical treatment since 1997 and has taken no medications, prescription or nonprescription, other than homeopathic remedies since 1997.
In Richardson v. Chapman. 175 Ill. 2d 98, 676 N.E. 2d 621, 221 Ill. Dec. 818 (1997), the court remitted the damages awarded to plaintiff as the amount was inconsistent with the expert medical testimony submitted. The Supreme Court noted that an award of damages may be reduced if it is deemed excessive or if it is” ... outside the range of fair and reasonable compensation”. Id. at 621.
In the present case, the damages of $110,000 are completely contrary to the evidence offered by plaintiff's treating physician. Further, it is inconsistent with an award for future medical treatment which includes a wrist fusion which if performed, will leave the plaintiff pain free. The amount is the same amount that plaintiff was awarded for her past pain and suffering, $10,000, essentially extended for the expected duration of her life. That is completely contrary to the evidence where it is uncontroverted that her discomfort for the first 3 months was clearly greater than at any time since her initial recovery. To allow her to recover the same amount annually essentially, as she has received for her last 2 ½ years of discomfort complete defies the evidence in this case. This is particularly so in light of her lack of need for any medical care or medication.
Finally, the award is duplicative of the emotional damages portion of the verdict. If both amounts are allowed to stand, the plaintiff is improperly recovering for the same elements of damages twice based upon the exact same testimony and evidence. As a result, the amount of damages awarded to June Hiscott for future pain and suffering must be remitted in accordance with the consent of plaintiff, or a partial j.n.o.v be granted or a new trial ordered.
III. The damages awarded to June Hiscott for her emotional distress were improper.
1. The damages awarded to June Hiscott for her emotional distress were not properly recoverable under Illinois law.
IPI 30.05.01 does recognize emotional distress as an element of damages, but the comment recognizes these damages as part of a cause of action for negligent infliction of emotional distress in the absence of a physical impact (Illinois Pattern Jury Instructions, Civil (3d ed. 1995), citing Rickey v. Chicago Transit Authority, 98 I11.2d 546, 457 N.E.2d 1 (1983) ; Corgan v. Muehling. 143 I11.2d 296, 574 N.E.2d 602 (1991) ; Lewis v. Westinghouse Electric Corp., 139 Ill. App. 3d 634, 487 N.E.2d 1071 (1985) ; Courtney v. St. Joseph Hospital, 149 Ill. App. 3d 397, 500 N.E.2d 703 (1986) ; Robbins v. Kass, 163 Ill. App. 3d 927, 516 N.E.2d 1023 (1987) ; Koeller v. Cook County. 180 Ill. App. 3d 425, 535 N.E.2d 1118 (1989) ; Seef v. Sutkus, 205 Ill. App. 3d 312, 562 N.E.2d 606 (1990), aff'd on other grounds. 145 I11.2d 336, 586 N.E.2d 510 (1991); Allen v. Otis Elevator Company, 206 Ill. App. 3d 173, 563 N.E.2d 826 (1990) ; Haves v. Illinois Power Company, 225 Ill. App. 3d 819, 587 N.E.2d 559 (1992) ; Leonard v. Kurtz, 234 Ill. App. 3d 553, 600 N.E.2d 896 (1992) ); Jarka v. Yellow Cab Company, 265 Ill. App. 3d 366, 637 N.E.2d 1096 (1994). The plaintiffs, however, neither pleaded nor proved a cause of action for negligent infliction of emotional distress. Instead, the plaintiffs‘theory was based upon ordinary negligence as to all defendants.
Despite the plaintiffs‘failure to plead a cause of action for negligent infliction of emotional distress as part of the First Amended Complaint and over all defendants‘objections, the court included emotional distress as part of the damages in IPI 30.01 and on the verdict forms. The jury returned a verdict with separate awards of $150,000 for emotional distress in addition to $10,000 for past pain and suffering, $110,000 for future pain and suffering and $50,000 for disability.
One cannot recover for emotional distress merely by seeing someone injured without evidence that the plaintiff's emotional distress arose from fear for her own safety. Alexander v. DePaepe, 148 Ill. App. 3d 831, 499 N.E. 2d 1065, 1068, 102 Ill. Dec. 285, 288 (2d Dist. 1986). The 1986 Second District case of Alexander v. DePaepe. is directly on point to the present case. In Alexander, plaintiff was a passenger in a car driven by her fiance. As the result of the collision at issue in the case, plaintiff's fiance died. Plaintiff sought to recover emotional distress as an element of her damages. Id. at 1065. The trial court dismissed plaintiff's claim for negligent infliction of emotional distress. The court noted that one can recover for emotional distress in accordance with the case of Rickey v. CTA. 98 Ill. 2d 546, 457 N.E. 2d 1, 75 Ill. Dec. 211 (1983) only if there is evidence that the plaintiff was fearful of injury to herself. The court noted,” .... it did not widen the scope so greatly as to include plaintiffs whose stress arises from watching another's injury or suffering.” Id.
June Hiscott's claim for emotional distress is apparently based on the emotional distress she suffered from while watching her husband's injuries and recovery. She also appears to seek compensation for feeling that she is of lesser value to employers now despite her ability to continue to work. The law in Illinois is clear that there is no cognizable basis for June Hiscott's claim for emotional distress.
June Hiscott recovered a sum of money to compensate her for her pain and suffering. That would include the frustration that she felt at not being able to work as fully as before, even though she did continue to do her art work and continued to receive payment.
2. There was insufficient evidence to support the damages awarded for emotional distress.
Illinois case law does not support monetary damages for emotional distress when the evidence is so lacking. James J. Allen vs. Otis Elevator Company, 206 Ill.App.3d 173, 563 N.E.2d 826 (1st Dist. 1990). The Appellate Court in Allen provides a detailed history of the case law in Illinois surrounding a claim for emotional distress. Id. In Allen, various plaintiffs were trapped in an elevator for approximately two hours. Id. After eventually being rescued, the plaintiffs began experiencing various emotional problems. Id. For example, the plaintiffs suffered from problems such as inability to sleep, distress in boarding elevators and planes, nervousness, fear of flying, fear of crowds, fear of heights, crying, eating disturbances, and inability to enjoy trips or vacations. Id. None of the plaintiffs received any psychological treatment or counseling regarding the problems. Id.
The Allen court reviewed the history of Illinois law regarding negligent infliction of emotional distress. After determining that the plaintiffs were allowed to seek recovery for emotional distress (contrary to the requisite finding in the present case), the court analyzed whether the plaintiffs had presented sufficient evidence to show physical injury or illness as a result of the emotional distress they suffered. (Id. at p. 182). The Allen court reviewed Robbins v. Kass. 163 Ill.App.3d 927, 516 N.E.2d 1023 (1987) where the court concluded that the physical illness or injury requirement indicates a desire to permit compensation only in cases involving serious emotional distress. The Robbins court found the manifestation suffered by the plaintiff for which she did not receive medical treatment - including crying, sleeplessness, increased migraine headaches and becoming upset when viewing pregnant women - to be insufficient to satisfy the physical consequences requirement. Furthermore, the court in Allen referred to Rahn v. Gerdts, 119 Ill.App.3d 781, 455 N.E.2d 807 (1983) where the court supported a cause of action when the plaintiff was admitted to the hospital and treated for severe depression, anxiety and nervousness. Id. at 183. Ultimately, the Allen court agreed with the Robbins court that the physical illness or injury requirement indicates a desire to permit compensation only in cases involving serious emotional disturbance.
In the present case, there was no claim by June Hiscott of any medical or physical problems associated with emotional distress. She had no medical treatment for emotional distress. Following the holding of Allen and the cases relied on by the Allen, court, June Hiscott's allegations of emotional distress do not rise to the level of the physical manifestations required to recover emotional distress damages.
This case was one in which the plaintiff sought and obtained recovery for bodily injuries as a result of a car accident. It was not based upon negligent infliction of emotional distress, nor on any evidence of a disorder or other legitimate psychiatric condition. Testimony that George Hiscott may be more attentive and affectionate now than before the accident simply does not justify a separate $150,000 award for emotional distress in addition to the jury's awards for pain and suffering and for disability. June Hiscott's testimony regarding her loss of feeling of value also do not justify such an award. According to her own testimony, she continued to work and had a record year for craft show sales the year after the accident. She sought no treatment for any psychological injury or illness and did not testify to an intention to seek such treatment in the future.
As this recovery for emotional distress was not legally cognizable and redundant, the defendants are entitled to a new trial or partial j.n.o.v., if, as argued below, the plaintiff does not consent to a $ 150,000 remittitur. See, Powers v. Illinois Central Gulf R.R. Co. 91 I11.2d 375, 387-88, 438 N.E.2d 152 (1982).