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Motion 19-Defendant's Motion for Remittitur of Judgment in Car Accident Case - Part 2

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3. An award for emotional distress is duplicative of the amounts recovered for pain and suffering and disability.

Even if the plaintiff had presented evidence of psychological problems or a medically verifiable disorder, the plaintiff would still not have been entitled to recover for emotional distress separate and apart from the damages that she also recovered for pain and suffering. In Johnson v. May, 223 Ill. App. 3d 477, 585 N.E.2d 224 (1992), the Court set aside as inadequate a damages award where the plaintiff suffered post- traumatic stress syndrome following an automobileaccident. The Court concluded that the” .... medical and psychological testimony overwhelmingly established that [plaintiff] was suffering from a debilitating case of post-traumatic stress disorder ” (223 Ill. App. 3d at 485). The jury had awarded total damages of $43,609.60 itemized to include nothing for disability, $2,000 for disfigurement, $10,000 for pain and suffering, $8,609.60 for past and future medical care, and $23,000 for loss earnings. 223 Ill. App. 3d at 483. However, the jury verdict form did not provide for an award for emotional distress. In determining that the overall award bore no reasonable relationship to the loss suffered, the Court clearly understood that any medical and psychiatric evidence concerning a legitimate psychiatric condition would not justify an award of damages for emotional distress separate and apart from recovery for pain and suffering.

Similarly, in the present case, the $150,000 for emotional distress overlaps with both pain and suffering and disability here. The plaintiff's evidence of her emotional distress is precisely the same evidence that the jury would have used to award her damages for pain and suffering and disability. There was no additional evidence offered whatsoever that allows for such compensation under Illinois law.

4. Because the award of emotional damages was improper, the court should remit the verdict and judgment for emotional distress to $0 with the consent of the plaintiffs or in the alternative enter a partial j.n.o.v with respect to the verdict for emotional damages or in the alternative set aside the verdict and set the matter for a new trial.

Where a jury verdict is excessive, the court has the duty to correct an excessive verdict and may do so by ordering remittitur of a portion of the damages, with the plaintiffs consent. Best v. Taylor Machine Works, 179 I11.2d 367, 689 N.E.2d 1057 (1997) ; Haid v. Tingle, 219 Ill. App. 3d 406, 579 N.E.2d 913 (1991) ; Carter v. Kirk, 256 Ill. App. 3d 938, 628 N.E.2d 318 (1993) (finding trial court properly granted $20,000 remittitur where jury's verdict was excessive because medical evidence failed to support plaintiff's claims). The deference that is traditionally given to the careful deliberative process of the jury in making its determination of damages is overcome if, after examining the evidence presented at trial, the court determines that the verdict was excessive, and in such a case, the court may not allow the verdict to stand but must act to correct the injustice, and failure to do so is itself error. Best v. Taylor Machine Works, 179 I11.2d at 412-13; Haid v. Tingle, 219 111. App. 3d at 410.

In Powers v. Illinois Central Gulf R.R. Co., 91 Ill. 2d 375, 387-88, 438 N.E. 2d 152 (1982), the Illinois Supreme Court reversed a portion of a judgment that was based upon an itemized $50,000 award for the nature, extent and duration of an injury because it was duplicative of such other elements as pain and suffering, economic loss and disability. It rejected the argument that the $50,000 award should not be disturbed because the overall verdict was within the range of the evidence.

There was no legal basis for recovery of emotional distress damages in this case. Further, the instruction, itemized verdict form and the jury's itemized verdict erroneously called for duplication of damages. As a result, the defendants were prejudiced because the jury compensated June Hiscott for emotional distress in addition to separate recovery for past and future pain and suffering and for disability. Finally, as argued above, there was absolutely no evidence to support the jury's award of $150,000 for June Hiscott's emotional distress in addition to her recovery for pain and suffering and for disability. Although an excessive verdict would justify a new trial or a partial j.n.o.v. in the event the plaintiff does not consent to a remittitur ( Bart v. Union Oil Co. of California, 185 Ill. App. 3d 64, 70, 540 N.E.2d 770 (1989) ), a remittitur in the amount of $150,000 is appropriate if the plaintiff consents.

IV. The damages awarded to George Hiscott for his emotional distress were improper.

1. The damages awarded to George Hiscott for his emotional distress were not properly recoverable under Illinois law.

The same analysis discussed above applies to George Hiscott as well. There is no basis for recovery of emotional distress by George Hiscott. His claim appears to be based upon watching his wife while paramedics removed them from the vehicle. As noted in Alexander, recovery for the distress or watching someone after an accident is not compensable. In the present case, there can be no claim that he feared for any injury to himself as the accident was over and extrication had begun. There was no testimony offered that he was fearful for his safety. In fact, his testimony was to the contrary, that he was focused on his wife. As stated above, there is no cognizable legal basis for recovery of the $150,000 for emotional distress and that portion of the verdict must be set aside.

2. There was insufficient evidence to support the damages awarded for emotional distress.

As discussed above with respect to June Hiscott, there is no claim for any medical treatment in the past or intended in the future related to any psychological injury or disorder for George Hiscott. There is no medical treatment for any condition related to any claimed emotional distress. Mr. Hiscott's mere statement that he needs to be more attentive to his wife now simply does not support this award. As noted above, it is the intention of the law in Illinois to allow recovery only for those cases of extreme emotional injury. That is not the case in this matter. Because the evidence is entirely insufficient to justify an award for emotional distress, the verdict of $150,000 for George Hiscott must be set aside.

3. An award for emotional distress is duplicative of the amounts recovered for pain and suffering and disability.

George Hiscott received compensation in the jury verdict for past and future pain and suffering. Any evidence which would support a claim for emotional distress would be the exact same evidence presented to support a claim for pain and suffering. The only exception may be the testimony regarding what he witnessed with respect to his wife's injuries, which is not compensable under Illinois law. Therefore, the evidence considered to support any amount recovered properly for any emotional suffering would be the same as that which supported the amount awarded for pain and suffering. To allow the emotional distress award to stand would not only be contrary to Illinois law, but it would be duplicative and redundant as well.

4. Because the award of emotional damages was improper, the court should remit the verdict and judgment for emotional distress to $0 with the consent of the plaintiffs or in the alternative enter a partial j.n.o.v with respect to the verdict for emotional damages or in the alternative set aside the verdict and set the matter for a new trial.

As stated above, there is no legal basis for an award of emotional distress to George Hiscott. There was no pleading of negligent infliction of emotional distress and no medical treatment for any injury other than the fractures as discussed by Dr. Baier and Mr. Hiscott himself. There was no assertion that he felt he was in a zone of danger upon seeing his wife injured since the accident had ended and the vehicles had stopped. He did not seek any medical care related to any emotional condition whatsoever. He was compensated for his pain and suffering, both past and future, in an amount totaling $55,000. That future pain and suffering amount which was awarded in and of itself defies Dr. Baier's testimony that any continuing discomfort for George Hiscott stems not from the injuries from the accident but from his pre-existing arthritis. Any award for emotional damages is not only contrary to the law in Illinois, but is not supported by the evidence and would result in a duplicative verdict.

As a result, the verdict awarding George Hiscott emotional damages in the amount of $150,000 must be remitted to $0 with plaintiff's consent. Absent that consent, the court should enter a partial j.n.o.v with respect to that portion of the verdict with a judgment entered in the amount of $0 or in the alternative, the verdict and judgment should be set aside entirely with a new trial to proceed.

V. Ronald Weidner and Ronald Weidner, Inc. are entitled to a new trial due to the court's failure to allow relevant evidence relating to Ross Peters' cell phone use.

As the court is aware, Weidner intended to call a representative from Cellular One to testify regarding Peters' use of the cell phone. Peters presented motions in limine regarding references to cell phone use which were reserved for ruling pending confirmation to the court of the time frame the phone was in use and apparently also to confirm that the phone was used by Peters.

Weidner was prohibited from asking Peters if he was on a cell phone at the time of the accident. There was no basis for not allowing that testimony other than that Peters did not want to have that line of evidence presented to the jury. The court ruled that there was no foundation laid for asking that question. However, that question did not seek any information that required a specific foundation. It merely requested Peters' testimony regarding what he was doing at the time of the accident. As discussed at the presentation of Weidner's motion for reconsideration of the court's ruling regarding admissibility of Peters' use of a cell phone, Weidner intended to further confirm with Peters that he had answered an interrogatory which confirmed his cell phone number. As indicated to the court, Weidner was prepared to call the Cellular One Representative who was expected to testify that according to phone records related to phone number that Peters stated belonged to him, a phone call was made at 1:14 p.m. that lasted one minute. The phone was then used again at 1:29 p.m. to call the same number.

Deputy Burns testified that the Lake County Sheriff's Department received a report of an accident at 1:20 p.m. It is reasonable to assume that the accident occurred before that time. How much time elapsed between the accident and the call to the police? We cannot know for sure. We do know that Weidner testified that he called his office to notify the police from the walkie-talkie after he talked to Peters and as he was walking towards the Hiscott vehicle. We cannot possibly know if some neighbor called the police. But, we do know that very shortly after the accident , the police were notified.

The question was raised of whether it could be proved that Peters was using the cell phone referred to in the Cellular One records. Peters answered an interrogatory in which he provided his cell phone number. At the time of Weidner's motion for reconsideration, the court was advised that Weidner would be called to testify that he saw Peters with a cell phone making calls from the accident scene after the accident occurred. This confirms that he had a phone with him. His answer to the interrogatory confirms the phone number of that phone. We also know that Peters' first call was made only 6 minutes before the police were called. Further, we know from the testimony of Charles Behrendt that Peters was driving with only one hand on the wheel as he traveled past Weidner.

There was no suggestion that he was on the phone at the time of the impact. Rather that he was on the phone prior to the impact with the Hiscotts and prior to swerving onto the gravel so that he could not react properly to the Weidner vehicle in the roadway. With a theory of a case against Peters that he was distracted and failed to keep control of his vehicle and failed to react properly, evidence regarding his activity just prior to the impact and at or around the time of his “evasive” maneuver is relevant as it is probative of fact at issue in the case.

At the time of the motion for reconsideration, counsel for Peters relied upon the case of Eleopoulos v. Dzakovich, 94 Ill. App. 3d 595, 418 N.E. 2d 980, 49 Ill. Dec. 960 (1st Dist. 1981). That case is quite different from the case before the court. In Eleopoulos, a witness to an accident between a car and child on a bicycle may have looked into the glove compartment of a car sometime near the accident. No one knew if the witness and defendant looked in the glove compartment before or after the time of the collision. As a result, the court held that evidence regarding the defendant looking into the glove compartment was properly excluded. That is not the case here. In the present case, it is clear that the accident occurred sometime before the police were called at 1:20 p.m. and that the cell phone call was made at 1:14 p.m.

It is not error for the court to exclude evidence if that evidence is remote or does not reasonably bear upon the specific issue under consideration. Eleopoulos, 418 N.E. 2d at 985, 49 Ill. Dec. at 964. The court in Eleopoulos was faced with a situation where the testimony was clear that there was no way of concluding whether the accident happened before of after the defendant saw the bicyclist. In the present case, the issue of Peters' cell phone use was not remote or unrelated to an issue in the case. There was no evidentiary basis to exclude the evidence. Peters' counsel argued and the court reiterated that because Peters denied being on the cell phone, there was no foundation for allowing cell phone evidence. This conclusion defies logic. If one can be precluded from presenting evidence just based upon a party's denial of a fact, there would be little litigation. The purpose of the presentation of evidence in a jury trial is to challenge what is purported by an opponent. That is precisely what Weidner attempted to do here. Weidner was unfairly prejudiced when not allowed to present evidence of a pertinent fact that addressed the issue of whether Peters was distracted immediately before he saw the truck in the road.

Illinois law provides that evidence is relevant and admissible if,” .... it has any tendency to make existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Spencer v. Wandolowski, 264 Ill. App. 3d 611, 636 N.E. 2d 854, 858, 201 Ill. Dec. 422, 426 (1st Dist. 1994). The Spencer court further defined relevancy as that which included materiality of the evidence and its probative value. Materiality is a fact of consequence which refers to the,” .... relationship a particular proposition bears to the ultimate determination of the action.” Further, the court noted that probative value is,” .... the tendency of the evidence to render a particular proposition more or less probable than it would be without the evidence.” Spencer, 636 N.E. 2d at 858, 201 Ill. Dec. at 426.

In Spencer, the trial court excluded evidence that the defendant was travelling on the shoulder 10 minutes before the accident occurred. That ruling was criticized by the Appellate Court and was the basis for a new trial. The court noted that the time between the defendant driving on the shoulder and the accident report was 10 minutes which put the time between the shoulder driving and the accident at less than that. The court distinguished Eleopoulos specifically because the 10-minute time frame was so small. Spencer, 636 N.E. 2d at 860, 201 Ill. Dec. at 428.

Similarly, in the Klavine case, the trial court excluded evidence of the decedent's speed for 300 yards 600 yards before the accident scene as reported by a witness. There was no direct evidence of the decedent's speed. The Appellate Court criticized the exclusion of that evidence and remanded the case for a new trial. The court also noted that what actions a driver was taking before an accident could have a clear bearing on his liability. Klavine v. Hair, 29 Ill. App. 3d 483, 331 N.E. 2d 355, 358 (3rd Dist. 1975).

In the present case, the time frame is even smaller, less than 6 minutes between the phone call and the report of the accident. Further, the issue is not so much what Peters was doing at the time of the impact, but what was going on to prevent him from seeing the Weidner vehicle or the other cars lined up on the roadway. That limitation shortens the pertinent time frame even more. Whether Peters was talking on a cell phone when he should have been watching the road is clearly material and probative of the issues in this case and would make Weidner's position that Peters was not paying attention so that he did not react carefully or properly more probably true.

It was the position of both plaintiffs and Weidner that Peters was not keeping a proper lookout and was not paving attention as he was driving just before the collision with the Hiscotts. Further, Peters defense is that he was paying proper attention and reacted the best anyone could. Weidner should certainly be entitled to refute that. Because of the allegations regarding Peters not paying attention and his denial of that claim, the issue of his use of a cell phone 6 minutes before the police were called is crucial to the case. It is a material issue and the evidence from Cellular One regarding Peters use of cell phone at 1:14 p.m. is probative of that material issue. Therefore, as in Spencer and Klavine, the court should set aside the verdict and submit the case for a new trial.

VI. Ronald Weidner and Ronald Weidner, Inc. are entitled to a new trial due to the court's admission of opinion testimony by Robert Seyfried.

1. The testimony of Robert Seyfried should have been since there was no physical evidence to support his opinions.

The law in Illinois is clear that a party may rely upon opinion witness testimony with respect to those issues that are beyond the ken of the average juror or which require specific scientific analysis. Watkins v. Schmitt, 172 Ill. 2d 193, 665 N.E. 2d 1379, 216 Ill. Dec. 822 (1996). In Watkins, the trial court barred the testimony of the investigating officer who was not trained as an accident reconstructionist. Id. at 1379. The court reiterated its earlier position that the speed of vehicles is not beyond the ken of an average juror. Essentially, without some scientific analysis of physical evidence, expert or opinion witness testimony is inappropriate.

In fact, Mr. Seyfried's testimony was that there was no physical evidence other than a gouge mark at the point of the impact with the Hiscott vehicle present at the scene. That gouge mark was essentially of no consequence since the point of impact with the Hiscott vehicle was not disputed nor was the distance between the Weidner vehicle and the collision contradicted or disputed. He testified that his opinions were based upon his review of the police report and summaries of depositions of certain people provided by Peters' counsel.

There was no testimony from Mr. Seyfried that he applied a scientific analysis of this information other than to break down miles per hour by applying basic math to compute feet per second. This is a calculation based upon information that was not contradicted which is simple math that could be done by an average juror. Further, Mr. Seyfried testified as to the path of travel of Peters' vehicle. This was merely a restatement of the evidence as presented by witnesses to the occurrence and was not supported by any scientific evidence. Finally, Mr. Seyfried was allowed to testify regarding his perception of an emergency situation. That conclusion was based merely upon his reading of the deposition summaries provided by counsel for Peters and not upon any scientific inquiry. In fact, Peters' testimony was that he had no recollection of the time frame during which Mr. Seyfried concluded there was an emergency. Furthermore, Deputy Burns and Charles Behrendt testified that there was no road hazard constituting an emergency as opined by Mr. Seyfried. Not only was Mr. Seyfried's opinion as to an emergency not based on any scientific evidence, but it was completely contradicted by reliable and independent witness testimony.

2. The testimony of Robert Seyfried should have been barred since there was an eyewitness to the accidentwho was competent to testify and did testify regarding the facts of the occurrence.

As stated above, Mr. Seyfried was allowed to testify although his testimony did not provide any information beyond that which was provided by eyewitnesses. Independent witness, Charles Behrendt, was capable and reliable in his recollection of the path of Peters' vehicle. He clearly related his observations regarding the scene of the occurrence and the actions of all parties. Mr. Seyfried's testimony added nothing to these observations other than a recalculation of the terms of Peters' speed. Mr. Behrendt's observation was that dust was flying and that Peters was entirely on the gravel shoulder at some point and back oh the road crossing the centerline. Mr. Behrendt also testified that Peters had only one hand on the steering wheel at the time of the maneuvers at issue. Peters' own testimony was that he lost control of his vehicle. Further, Officer Burns testified regarding the width of the lanes of traffic and the shoulder which demonstrated that Peters had over 10 feet of paved road way and 7 feet of shoulder to maneuver a 6 to 7 foot wide vehicle around the Weidner truck. Nevertheless, Mr. Seyfried was allowed to testify regarding the reaction time for Peters with no basis other than a review of the summaries provided by Peters' attorney.

In light of the competent testimony provided by an independent witness and the investigating officer, there was no basis for the admission of Mr. Seyfried's testimony regarding reaction time, Peters' path of travel or the presence of an emergency situation.

3. The testimony of Robert Seyfried regarding Peters' reaction time should have been barred as it was on an ultimate issue in the case.

An opinion witness may not testify as to an ultimate issue in a litigated matter since such testimony improperly intrudes on the role of the jury. Zavala v. Powermatic, Inc., 167 Ill. 2d 542, 658 N.E. 2d 371, 212 Ill. Dec. 889 (1995). In this case, despite no physical evidence and testimony which contradicted eyewitnesses, the court allowed Peters' expert, Robert Seyfried, to testify regarding Peters' reaction time. This testimony was based upon an estimate of speed and distances provided by eyewitnesses and so was improper expert evidence. Further, the conclusion that Mr. Seyfried reached regarding Peters' reaction time was that Peters' reaction time was good and reasonable which was the ultimate issue presented by the facts and pleadings in this case.

Although in the Zavala case, the court ruled that under those specific facts, the testimony at issue was admissible, the court reiterated the law as stated in many other cases regarding this question, that testimony as to an ultimate issue is generally not permissible.


Based on the foregoing arguments, the defendants, RONALD WEIDNER and RONALD WEIDNER, INC., are entitled to a new trial, remittitur or partial judgment notwithstanding the verdict pursuant to 735 ILCS 5/2-1202. The verdict with respect to apportionment of liability and future pain and suffering of June Hiscott was against the manifest weight of the evidence, which requires that a new trial be granted. The jurors awarded an element of damage, specifically $150,000 in emotional distress to both June Hiscott and George Hiscott, which was not supported by the evidence or allowed under Illinois law. This supports either remittitur , partial j.n.o.v. or a new trial. The court failed to allow admissible, relevant evidence of Peters' use of a cell phone minutes before the police were notified that an accident occurred. The court improperly allowed testimony by Robert Seyfried when his opinions were not based on any scientific evaluation of the evidence and when competent eyewitness testimony was available and presented to the jury.

As a result of the foregoing, the defendants, WEIDNER, were severely prejudiced, so that the verdict should be set aside, the judgment vacated and a new trial awarded on all issues; or in the alternative, partial judgment notwithstanding the verdict should be entered in favor of the defendants with respect to the award for emotional damages; or this Court should enter remittitur of $300,000, due to the award for emotional distress.

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