Motion 20-Plaintiff's Opposition to Remittitur of Judgment in Car Accident Case

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IV. The Damages The Jury Awarded To George Hiscott For His Emotional Distress Were Proper
(a) Damages awarded to George Hiscott for emotional distress were properly recoverable under Illinois law.

The same analysis and caselaw discussed above applies to the jury's verdict for George Hiscott as well. WEIDNER mistakenly argues that,” his claim appears to be based upon watching his wife while paramedics removed them from the vehicle.” (See WEIDNER's motion, Section IV(1)). While it is true that one cannot recover damages for emotional distress based solely on witnessing another's injuries, WEIDNER again ignores the evidence presented at trial.

George Hiscott testified as to the significant emotional distress associated with the limitations imposed by his injuries in the months following the collision. He also discussed the emotional distress he currently has now in living a life of confinement and limitation. The jury also heard George testify that he does not feel completely whole because there are a lot of things, such as handiwork around the house, that he cannot do anymore. Clearly, this evidence supported the jury's determination that George Hiscott suffered real and significant emotional distress arising out of the injuries he sustained in the collision.

As a result, it was not against the manifest weight of the evidence, and WEIDNER's Post Trial Motion should be denied.

(b) There was sufficient evidence to support the damages awarded to George Hiscott for his emotional distress.

Once again, the same analysis and caselaw discussed above with respect to June Hiscott on this issue apply equally to George Hiscott. Contrary to WEIDNER's assertion, it is not a requirement in an action seeking damages for emotional distress for a plaintiff to have suffered a physical injury or illness as a result of the emotional distress. Corgan v. Muehlinq, 143 Ill.2d 296, 158 Ill.Dec. 489 (1991); see also, Brogan v. Mitchell Int'l, Inc., 181 Ill.2d 178, 229 Ill.Dec. 503 (1998).

The existence or nonexistence of medical testimony is one factor for the jury to consider in weighing the evidence, but the amount of damages to award lies within the sound discretion of the jury. Clark, 232 Ill.Dec. 6. In the instant case, the jury's determination that George Hiscott suffered real and significant emotional distress was supported by the evidence, previously discussed above.

Thus, the verdict was not against the manifest weight of the evidence. As a result, WEIDNER's motion should be denied.

(c) The jury's decision to award George Hiscott damages for emotional distress is not duplicative of theamounts recovered for pain and suffering and disability.

This issue has been previously addressed with respect to June, and the same discussion applies to George Hiscott. There is simply no support for WEIDNER's argument that the jury's decision to award damages for emotional distress, pain and suffering, and disability was improper. They each represent a separate element of damages provided for in the Illinois Pattern Jury Instructions, and the jury's decision to award George Hiscott damages for each was supported by the evidence.

The jury's basis for determining George Hiscott was entitled to damages for emotional distress has been previously set forth above. It is obvious that the evidence supported the jury's decision to award damages to George Hiscott for emotional distress.

It should be noted that the jury's award for disability was also supported by the evidence. There was testimony that George Hiscott was in a bed, and using a wheelchair, walker or cane for a number of months after this occurrence. As a result, the jury was clearly within its right to conclude that he was entitled to damages for disability.

In addition, the decision to award George Hiscott pain and suffering was also supported by the evidence. George testified as to the pain he experienced in the months following the collision, and that he still had certain items of pain today.

Therefore, the jury's verdict for George Hiscott's emotional distress is not duplicative of the awards for pain and suffering and disability, and WEIDNER's Post Trial Motion should be denied.

(d) The jury's award of damages to George Hiscott for emotional distress is not an excessive verdict.

The analysis and law discussed above with respect to June Hiscott and WEIDNER's claim of an “excessive verdict” applies to George Hiscott as well. Given the evidence presented at trial, the jury's verdict of $ 150,000 for George Hiscott's emotional distress does not shock the conscience of the court. The jury's damage award is not subject to remittitur since it “falls within the flexible range of conclusions which can reasonably be supported by the facts.” See, Best, 228 Ill.Dec. at 658. Accordingly, WEIDNER's Post Trial Motion should be denied.

V. The Court's ruling prohibiting presentation of evidence by the Weidner defendants pertaining to Ross Peters' use of a cell phone was appropriate and the defendants are not entitled to a new trial based on said rulings.

There are three reasons why defendants' Motion for a New Trial based on the Court's rulings barring interrogation into the cell phone must be denied:

(a) there was no evidence to indicate that Mr. Peters was using his car phone at the time of the collision or immediately prior to it;

(b) defense counsel failed to conduct reasonable discovery into obvious sources for information who would have confirmed their assertions;

(c) the case law does not support their contention.

It was very clear that the Weidner defendants could not produce any evidence establishing the exact time of the collision, nor that Ross Peters was using his car phone at that time. The only testimony elicited at the time of trial pertaining to the cell phone was from Ross Peters who denied such usage at the time of the collision. Further, defense counsel did not interrogate the only independent witness, Mr. Behrendt, as to whether or not he observed Mr. Peters using the telephone prior to or at the time of the collision. The only testimony forthcoming from Mr. Behrendt was that he could not see the right hand of Mr. Peters prior to Mr. Peters' impact with the Hiscott vehicle. (See the testimony of Mr. Behrendt at pages 55 through 57.)

Defendants' offer of proof pertaining to the potential testimony of Ms. Margaret Preister, the Cellular One representative, could only establish that Mr. Peters was on the phone from 1:14 p.m. to 1:15 p.m. From the testimony of Lake County Sheriff's deputy, Mr. Burn, it could only be established that the Lake County Sheriff received a phone call pertaining to the accident at 1:20 p.m. The testimony, therefore, was very clear that Mr. Peters was not on the telephone between 1:15 and 1:20. Lacking any specific testimony as to the phone usage in the five minute gap, and being unable to present any offers of proof as to that usage or the exact time of the accident, the Court's rulings barring such testimony and interrogation was proper. The prejudicial nature of the testimony far outweighed any evidentiary value.

Secondly, the Weidner defendants inability to present any further testimony was due to the lack of diligence in developing or discovering those facts. Among the witnesses who might have been able to establish either the time of the accident or testify to whether Mr. Peters was using the telephone at the time of or immediately before the accident, were the following:

1. Mr. Weidner;

2. The driver of the white van, which Mr. Weidner struck;

3. The driver of green Jeep Cherokee, which was struck by the white van;

4. Mr. and Mrs. Hiscott;

5. Officer Burns;

6. The owner of telephone number 847-970-9461 which was the phone, number Mr. Peters had called at 1:14 p.m. and 1:29. p.m. before and after the accident.

Significantly, defense counsel had obtained the phone records from Cellular One in July of 1999, (See Exhibit “B” attached hereto.) In August of 1999, defense counsel for Mr. Weidner disclosed Ms. Preister's identity and the fact that she would testify “that on June 17, 1997, at approximately 1:14 p.m., Mr. Peters called telephone number, (847) 970-9461. At that time, he participated in a telephone conversation which lasted approximately one minute. She will also testify that at approximately 1:29 p.m., Mr. Peters again called (847) 970-9461 and participated in a telephone conversation which lasted approximately two minutes.” (See defendant, Weidners' answers to 213 (f) and (g) interrogatories attached hereto as Exhibit “C”.)

Although private inquiry may have been made, at no time during the course of the litigation, did defense counsel attempt to conduct any discovery, into the identity of the individual owning that phone number or, more importantly, whether that individual would testify that Mr. Peters was talking to him or her at the time of the collision. The Weidner defendants cannot come before this Court, having failed to diligently pursue leads available to them, and ask this Court to reverse a verdict based upon its finding that. no foundation could be layed to make the evidence credible and worthy of admission.

Lastly, defendant's reliance on Spencer v. Wandolowski, 264 Ill.App.3d 611, 636 N.E.2d 854 (1st Dist., 2d Div., 1994), is misplaced. In Spencer, the Appellate Court reversed the Trial Court's ruling which barred a state trooper's testimony that she saw the plaintiff travelling on the shoulder of a congested expressway approximately ten (10) minutes before she received a report of an accident involving the plaintiff's motorcyclist. The Appellate Court so ruled because it felt the testimony of Officer Rhodes presented evidence probative of a continuous course of conduct between the observation and the event complained of to cause that evidence to be probative, ( Wandolowski, 201 Ill.Dec. at 426).

In so ruling, the Appellate Court distinguished the Spencer case from those cases, including Eleopoulous v. Bzakovich, 94 Ill.App.3d 595, 418 N.E.2d 980, 49 Ill.Dec. 960 (1st Dist., 4th Div., 1981), where there were opportunities for changes in the observed events within a short time span or distance of the event complained of. Neither the Spencer case nor Klavine v. Hair, 29 Ill.App.3d 483, 331 N.E.2d 355 (3rd Dist., 1975), cited by defendants, support defendants' contention because, in the present case, the defendants have not, nor can they, demonstrate a continuation of Ross Peters' phone call, or the likelihood the call was in progress prior to the collision complained of. In fact, in the present case, unlike in Klavine and Spencer, there is greater evidence that Mr. Peters was not on the phone at the time of the collision than there is any bases for an inference that he was.

In Spencer, the court stated that “such evidence [of continuous conduct prior to a collision] is admissible .... i_f the facts and circumstances support a reasonable inference that the conduct testified to continued from the point of observation to the place of the accident” (emphasis added), Spencer, 201 Ill.Dec. at 426. In the present case, unlike in Spencer, it can be definitively established that Mr. Peters was only on the phone for one minute, between 1:14 and 1:15 p.m. Therefore, it is clearly established that he was off the phone for at least five minutes prior to the initial call to Lake County Sheriff. No continuous use of the phone was established, nor offers of proof that Peters was using it at the time of the collision made or of the time of the collision itself.

Further, if this court were to ignore the testimony of Peters and - Behrendt, and find that this evidence was of value as circumstantial evidence due to a paucity of other witnesses, the absence of the eyewitnesses must be acknowledged to be the result of the failure of the very defense attorneys who want to use this evidence to prove Mr. Peters' use of the cell phone. Arguably, the owner of the phone number Mr. Peters called at 1:14 p.m. could have answered the question with finality. Had reasonable inquiry been made, his testimony could have been presented or an offer of proof made.

Therefore, the circumstantial nature of the cell phone became circumstantial as the result of defense counsel's failure to establish the direct evidence necessary to prove that Mr. Peters was on the car phone. Equally important is the fact that, unlike in Spencer, it is more likely that the conduct in question, the use of the cell phone, terminated prior to the collision than continued to the point of the collision. In short, without the adequate foundation necessary to elicit testimony into the use of the cell phone, its prejudicial nature outweighed any probative value or materiality.

In Spencer, the court found that Officer Rhodes' testimony was probative of the traffic conditions as well as plaintiff's actions because there were no eyewitnesses and that it was likely, or could be inferred, that the conduct of the plaintiff continued from the point of observation until the collision. In the present case, no such inference can reasonably be made. The case, of Eleopoulous v. Bzakovich, 94 Ill.App.3d 595, 418 N.E.2d 980, 49 111. Dec. 960, (1st Dist., 1981), is most factually similar to the present case and is controlling.

In Eleopoulous, the plaintiff appealed the trial court's ruling that evidence pertaining to the defendant's search of his glove compartment at or around the time of the accident was inadmissible. The plaintiff was attempting to use this evidence to demonstrate that the defendant was not paying attention or being observant at the time of the collision. In affirming the decision of the Trial Court, the Appellate Court stated that “because the plaintiff could not connect the testimony to the relevant time frame, we do not believe that the Trial Court erred in excluding it.” Eleopoulous, 49 Ill.Dec. at 965. In reaching this conclusion, the court also stated that:

“The admissibility of evidence concerning a parties conduct prior to an accident turns on the degree to which the evidence tends to show that actually or probably occurred at the time of the collision ....The Trial Court has the discretion to admit such evidence where the facts and circumstances support a reasonable inference that the conduct testified to continued from the point of observation to the place of collision (emphasis added) .... It is not considered error to exclude testimony which, in the judgment of the Trial Court does not reasonably bear upon the specific issue under consideration.”

In the present case, Ross Peters testified to the fact that he was not on the phone at the time of the occurrence. The offer of proof by the Weidner defendants attorney, indicates only that Mr. Peters was on the phone at 1:14 and off the phone at 1:15 and that the Lake County Sheriff received a phone call at 1:20. There is absolutely no evidence that Mr. Peters was on the telephone for the five minutes between 1:15 and 1:20 that would contradict Mr. Peters' own testimony. Again, the numerous sources of potential testimony who might have contradicted Mr. Peters, or given any clue as to whether the accident may have occurred at 1:15, were not pursued by defense counsel. Regardless, the well-recognized requirement of the likelihood of continued activity has not been and cannot be met in this case. In fact, it is more probable than not that Mr. Peters had terminated his phone call well prior to the collision. Eleopoulous supports plaintiff's contention that the court's rulings were appropriate.

In conclusion, there being no testimony as to continuous use of the car phone; the defendant having failed to reasonably pursue discovery to obtain evidence which would have supported this contention, including taking the deposition of the person on the other end of the phone call with Mr. Peters, and the absence of case law supporting its contention, defendants' motion to set the verdict aside based on this court's rulings pertaining to the phone call must be denied.

VI. Weidner Is Not Entitled To A New Trial Due To The Court's Admission Of Opinion Testimony By Robert Seyfried

Expert reconstruction testimony is proper, even where there is an eyewitness, if what the expert offers is knowledge and application of principles of science beyond the ken of the average juror. Zavala v. Powermatic, Inc., 167 Ill.2d 542, 212 Ill.Dec. 889 (1995). The testimony of Robert Seyfried satisfied this standard, as he discussed the physical evidence he relied on as well as the scientific explanation for his opinions. The trial court properly admitted his opinion testimony.

In addition, WEIDNER's argument that the testimony was improper because it included an opinion as to the ultimate issue in the litigation has already been addressed and rejected by the Illinois Supreme Court. In Zavala, the Court held that expert opinion testimony on an ultimate fact or issue in the case does not impermissibly intrude on the fact finder's role. Zavala, 212 Ill.Dec. at 891. The Court reasoned that the trier of fact is not required to accept the expert's conclusion. Id. Therefore, WEIDNER's argument is contrary to Illinois law, and his Post Trial Motion claiming he did not receive a fair trial should be denied.

VII. Conclusion

WHEREFORE, the plaintiffs, JUNE HISCOTT and GEORGE HISCOTT, pray that this Honorable Court enter an order denying WEIDNER's Post Trial Motion, and granting plaintiffs any other relief this court deems just and proper.

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