Emmitt Tiner v. State of Illinois

ORDER

BIRNBAUM, CJ.

The Claimant, Emmitt Tiner (“Claimant”) brings this action against the State of Illinois (“Respondent”) seeking compensation for injuries sustained as a result of being struck by an Illinois Department of Corrections vehicle on June 14, 2007. This Court has jurisdiction pursuant to 705 ILCS 505/8 et seq.

PROCEDURAL HISTORY

Claimant filed his initial Complaint for negligence on May 5, 2009, and an Amended Complaint on February 1, 2010. Respondent tendered its initial Rule 55 Disclosure on June 10, 2010. The parties engaged in discovery for almost five years. On or about April 27, 2015, the parties agreed to hold a final hearing on May 11, 2015.

On May 7, 2015, Respondent produced a 300 plus page document titled “Respondent’s Second Combined Rule 55 Disclosure and Departmental Report.” On May 8, 2015, Claimant filed a Motion to Exclude. A hearing on that motion was heard by Commissioner Cueto. The Commissioner found that the disclosure was untimely and violated the rules of disclosure of departmental reports. As a result, the documents within Respondent’s Second Combined Rule 55 Disclosure and Departmental Report were barred from the final hearing before Commissioner Cueto. We affirm the decision of Commissioner Cueto to exclude the May 7, 2015 Rule 55 Disclosure. We note the too frequent practice of the Department of Corrections via the Illinois Attorney General to do “document dumps” on the eve of trial. This practice often impedes the administration of justice and in those cases the State risks the wholesale exclusion of evidence, as is the case here.

Prior to the hearing, the parties stipulated to the admission of certain evidence depositions as well as exhibits pertaining to other medical records and medical bills. Both parties were permitted to submit closing arguments in the form of written briefs. Following that hearing, on January 28, 2016, this Court entered an Order requesting Oral Argument on the following six issues to aid in the rendering of its decision: 1) Whether Claimant’s pre-existing back injuries sever Respondent’s liability; 2) Whether Respondent is entitled to a set-off for Claimant’s recovery from a third party in a separate civil action; 3) Whether medical bills paid by the Department of Corrections while Claimant was incarcerated are includable in Claimant’s prayer [*129] for relief; 4) Whether Claimant’s lost wages are speculative; 5) Whether Claimant’s damages are limited by the 705 ILCS 505/8(d) and 20 ILCS 405; and 6) Whether Dr. Schultz’s surgery on the wrong vertebra of Claimant constitutes an intervening cause that reduces or eliminates further liability of Respondent. The parties filed supplemental briefs on these issues and Oral Argument was held on March 21, 2016. The Court thanks the parties for their thoughtful briefing and argument on these issues.

TRIAL

On June 14, 2007, Claimant was an inmate at the Shawnee Correctional Center (“Shawnee”). That day, Claimant was working on the inside grounds crew when he was struck when a van driven by an Illinois Department of Corrections employee, Superintendent John Mott, was backing up.

Prior to the hearing, the parties stipulated to the admission of certain evidence depositions as well as exhibits pertaining to other medical records and medical bills. It is uncontroverted that Superintendent Mott was acting within the scope of his employment at the time of the accident.

Respondent asserts that the vehicle barely struck Claimant in the elbow. In support, Respondent cites various records in the initial department disclosure that indicate that Claimant only complained of a slight injury to his elbow and body after the incident. Respondent claims it did not proximately cause Claimant’s injuries, but rather his injuries were caused by a preexisting back condition Claimant had been suffering for some time. Respondent also maintained that Claimant is contributory negligent for his injuries because he failed to look out for vehicle traffic while performing his duties.

Superintendent Mott testified for the Respondent that he was “barely rolling, creeping…” at the time of the impact. Mott further testified that he did not see the impact but realized something was wrong when he heard a thump outside his window. He believed that the outside mirror struck Claimant’s elbow because he observed Claimant holding his elbow. Mott testified that Claimant declined medical treatment and returned to his work duties.

Mott’s testimony was corroborated by the testimony of Correctional Officer Forest Campbell. Campbell testified that he was present at the moment of impact. He testified that he observed the van’s mirror strike Claimant in the forearm. Campbell testified that at the time Claimant insisted that he was okay and did not request medical attention.

Conversely, Claimant asserted that Superintendent Mott’s vehicle struck him from behind with such force that it knocked him into another inmate and then onto the ground. Claimant testified that he sought medical treatment at Shawnee’s medical unit immediately after the vehicle struck him. He was given ice and aspirin and returned to his cell. Later that evening, he had to be taken out of his cell on a stretcher because the pain in his back was so severe that he could not walk. Correctional officers confirmed this chronology of events in their testimony. Claimant testified that over the next few months his physical condition deteriorated. He testified that his physical situation deteriorated to the point that he was confined to a wheel chair and [*130] unable to walk. At the time of the hearing, Claimant remained confined to a wheel chair and testified that he could only walk short distances with the aid of a walker.

Claimant’s testimony was corroborated by that of Aden Reel, a fellow inmate on the work crew who was present during the collision. Reel testified that prior to June 14, 2007, Claimant exhibited no problems moving dumpsters or working on the grounds crew. Reel testified that he believed that the mirror struck Claimant because it was pushed back and that the front fender also struck Claimant because it had a white mark. Reel acknowledged that his back was to the van at the moment of impact. Reel testified that after the impact, Claimant was half bent over with his hands on his knees and Reel helped Claimant down to one knee. Reel testified that later as he and Claimant started dropping off dumpsters, Claimant dropped in pain and needed medical treatment.

The testimony of Claimant and of Reel is contradicted by a number of witnesses. The record documents that prior to the accident Claimant complained of back pain and requested orthopedic shoes to ease his back pain. In addition, the testimony of several members of the prison and medical staff was that Claimant did not complain of significant pain after the accident. In addition, Correctional Officer Little testified that on July 18, 2007, more than a month after the accident, he saw Claimant in the lunch hall exhibiting good mobility and strength in both arms.

On or about January 23, 2008, Claimant got an MRI and other tests at St. Elizabeth’s Hospital in Belleville, Illinois. Claimant then began treating with Dr. Schultz, who ordered nerve conduction studies on June 12, 2008. According to Dr. Schultz’s deposition testimony, the studies revealed peripheral neuropathy. Claimant first underwent two epidural steroid injections between January and March of 2009. After the injections did not resolve the pain, on or about September 30, 2009, Dr. Schultz suggested Claimant have a spinal cord stimulator surgically implanted. Claimant testified that he refused this procedure because he feared it would negatively impact his ability to return to employment as a heavy equipment operator once he was released from prison.

After subsequent EMG and MRI testing, Dr. Schultz suggested Claimant undergo spinal fusion surgery. Dr. Schultz believed that Claimant was suffering from L3-4 discogenic pain syndrome. Dr. Schultz testified that he believed Claimant suffered nerve damage as a result of the June 2007 accident, although Dr. Schultz acknowledged there could have been pre-existing disc degeneration. However, he testified it was the accident which caused Claimant pain in his leg and back. Before any of the requisite pre-surgical testing could be completed, Claimant was released from the Department of Corrections in March of 2010.

On or about July 26, 2010, Claimant underwent a left lateral fusion for his L3-4 level at Memorial Hospital in Belleville, Illinois. According to Dr. Schultz, problems with imaging and an unexpected anatomical variation with the number of Claimant’s ribs caused the surgeon to mistakenly fuse his L2-3 level as opposed to the intended L3-4.

Claimant argued the cause of all medical services, including rehabilitation, was the collision with the Department of Corrections vehicle. Respondent argued that any medical [*131] services rendered from July 26, 2010 were a result of the surgeon’s negligence. Claimant testified that he reached a settlement with Dr. Schultz for the first surgery in the amount of $25,000.00.

Claimant underwent corrective surgery on August 3, 2010 to fuse the correct level. Following the corrective surgery, Claimant resided at a rehab facility and participated in physical therapy. Claimant testified that he continued to experience intense pain in his back after the surgeries. He testified the pain was severe enough to require morphine and other pain medications.

In early 2011, Claimant transitioned home and started living on his own. Claimant obtained a personal attendant who helped set up his home through a social services program. Claimant testified that as of the date of the hearing, his pain still had not resolved.

In March of 2011, Claimant went through a trial spinal cord stimulator surgery as was originally suggested by Dr. Schultz. According to Claimant, the stimulator ultimately failed to provide relief. Dr. Schultz therefore recommended a pump to provide pain medication directly into the spine. Claimant did have the surgery to install it. According to Claimant he had an adverse reaction to the pain medication.

Claimant now treats with Dr. Miguel Granger, a family practitioner, and Dr. William Thom, a pain management doctor. Their evidence depositions were admitted at the final hearing, along with the evidence deposition of Alan J. Raphael, Ph.D., a life care planner.

Dr. Granger started treating Claimant on January 14, 2011. On April 22, 2014, Dr. Granger installed an electronic box in Claimant’s back to assist with pain. Dr. Granger testified that Claimant complained of significant back pain and suffering from spasms. Dr. Granger opined that Claimant suffered from depression and anxiety as the result of being wheelchairbound due to his low back injuries. Dr. Granger diagnosed Claimant with low back pain and opined that the back problems came from the injury sustained in prison. However, Dr. Granger acknowledged Claimant did not mention prior back pain in his consult.

Claimant admitted at the hearing that he suffered a back strain in 2001 but testified that he was still mobile and the condition did not restrain his physical activity. Respondent identified several records in the initial departmental disclosure that illustrated the prior complaints and had the opportunity to cross-examine Claimant concerning the issue at the final hearing.

Dr. William Thom’s treatment started on April 15, 2013. At that time, Claimant complained of low back pain and buttock and posterior lower extremity pain radiating to his foot. Again, Claimant gave a history to Dr. Thom that he was struck by a vehicle that was backing up while he was in prison but did not mention prior back pain. Dr. Thom diagnosed Claimant with post laminectomy syndrome, experiencing pain and disability following an attempt at surgical correction. Nonetheless, Dr. Thom testified that based on his examinations, he could not determine the effect that the improper vertebrae surgery had on Claimant. Dr. Thom’s plan was to transfer Claimant to a pain medication pump and continue physical therapy. Claimant continued to return to Dr. Thom once a month for prescription refills with Claimant’s physical [*132] condition remaining the same. Dr. Thom testified that, as of June 2014, Claimant was still considering a new medication pump but the procedure had not been completed.

Dr. Thom testified that he believed that the onset of Claimant’s symptoms was related to the accident, but that his current symptoms were impacted by the surgical interventions. However, Dr. Thom could not testify as to the degree the surgical intervention impacted Claimant’s physical condition. Dr. Thom also testified that Claimant’s current condition and limitations were permanent. He further testified that he believed Claimant’s health would continue to deteriorate in the future.

Like Dr. Granger, Dr. Thom acknowledged that he did not conduct his own investigation into Claimant’s accident and he did not review any of the medical records from the Illinois Department of Corrections. As with Dr. Thom, Dr. Granger also testified that in giving his history, Claimant did not tell him he had a prior back injury.

Dr. Raphael, the life care planner, testified to the care and needs Claimant will require for the rest of his life. He testified that Claimant has a personal attendant seven days a week for approximately five hours a day. The personal attendant helps with the cooking, cleaning, bathing, laundry and whatever else he may need. Claimant also sees a physical therapist two days a week. For medical appointments, his home care provider provides him with transportation. Dr. Raphael testified that Claimant will require this level of care for the rest of his days.

Prior to his incarceration, Claimant was a heavy equipment operator with Operating Engineers Local 150. Claimant testified he loved his job and planned on returning to it after he was released from prison. Claimant claimed he planned to work until he was 65 or 70 years old.

Rick Dunlap, a Business Representative for Operating Engineers Local 150, testified about the wages Claimant may have earned if he had returned to work. Because Claimant was a member in good standing of Local 150 prior to his incarceration, Mr. Dunlap testified that Claimant would have been allowed to return to the union with full-time work available after his release from prison. Mr. Dunlap, in conjunction with Claimant’s submission to the Court, set forth Claimant’s projected lost wages from 2010 through 2032 based on a 40-hour per week for 38 weeks out of the year. Mr. Dunlap also testified that union members could work overtime. Mr. Dunlap testified that Claimant would have been placed on the bottom of a list for jobs and that he could have withdrawn at any time.

Claimant submitted medical bills in the amount of $436,891.14. In argument, Claimant also requested $2,759,918.00 in lost wages and benefits, and $1,353,020.13 for future medical expenses, which included a life care plan and $5,000,000.00 for pain and suffering and loss of a normal life.

STATEMENT OF ISSUES

In its Supplemental Post-Trial Brief, Respondent withdrew its argument that Dr. Schultz’s surgery was an intervening act that relieved Respondent of liability for Claimant’s [*133] injuries. Instead, Respondent argued, and Claimant stipulated, that Respondent is entitled to a set-off for Claimant’s recovery from Dr. Schultz. Thus, the issues before this Court are: 1) Whether Claimant’s pre-existing back injuries absolve or diminish Respondent’s liability; 2) Whether medical bills paid by the Illinois Department of Corrections or Medicaid are includable in Claimant’s prayer for relief; 3) Whether Claimant’s lost wages are speculative; 4) What future life care and medical needs are compensable; and 5) Whether Claimant’s damages are limited by the 705 ILCS 505/8(d) and 20 ILCS 405.

ANALYSIS

On the issue of Claimant’s pre-existing condition, the Court finds its prior ruling in Jones v. State, 50 Ill.Ct.Cl. 5 (1997), instructive. In that case, the Claimant, Jones, was an inmate at Stateville Correctional Center when he was injured while working on negligently maintained wooden planking in January 1981. Among the most serious injuries Jones claimed was a laminectomy surgical procedure, which occurred in July 1981. However, Jones failed to offer any substantive medical testimony that refuted the Respondent’s assertion that the laminectomy was necessitated by a pre-existing degenerative condition (stenosis) and that the January 1981 fall had little or no impact upon the decision to perform the surgery.

Jones admitted that he experienced great pain while working prior to his accident. An orthopedic surgeon, Dr. Xam-nan Tulyasathien, testified for the Respondent that the laminectomy performed upon Jones in July of 1981 was performed to relieve stenosis, a narrowing of the spinal canal, which was impinging on various nerves, and opined that the stenotic condition was not due to trauma. The Claimant offered no evidence to the contrary. This Court held that the Claimant failed to support his assertions with competent medical certainty and did not award the Claimant damages to the extent he requested.

But the instant case is distinguishable. Here, the Claimant submitted evidence depositions of three treating doctors who testified that the Claimant’s back pain is related to the van accident at Shawnee. Dr. Schultz testified on behalf of Claimant that the impact with the vehicle, and not Claimant’s back strain from 2001, caused Claimant’s pain in his legs and back. Dr. Thom also testified that the onset of Claimant’s back pain is related to the van accident but that his current symptoms were impacted by the surgeries. In addition, Dr. Granger opined that Claimant’s back problems are the result of the van accident. Dr. Thom testified that the onset of symptoms was related to the accident. But we note that the testimony of the three treating physicians is equivocal in one respect or another. Dr. Schultz acknowledged Claimant had pre-existing disc degeneration. The veracity of his testimony is also subject to the consideration that he originally fused the wrong spine level and was sued for this. Dr. Granger’s opinion is limited by the fact that he was not aware of Claimant’s pre-existing back issues. Dr. Thom was similarly unaware of Claimant’s medical history and did opine that Claimant had post laminectomy syndrome of Dr. Schultz surgical intervention.

Respondent offered no medical testimony in rebuttal. Respondent did provide evidence of Claimant’s history of complaints of back pain prior to the accident. Respondent also cites the testimony of the healthcare staff and correctional officers that Claimant demonstrated little distress after the accident.

[*134] The fact that Claimant was performing manual labor duties when the accident occurred is significant. Before the accident, Claimant was able to perform his duties, which involved heavy manual labor. His ability to perform those same duties without pain greatly diminished in the days and weeks following the accident. This strongly suggests that the accident is a significant cause of Claimant’s back problems.

Aden Reel’s testimony further supports this conclusion. At trial, Reel testified that prior to the accident, Claimant was lifting heavy dumpsters by hand. Claimant had been assigned to work with Reel on the inside grounds crew, but stopped immediately after the accident. Reel only saw Claimant once or twice more prior to his release from prison. On both occasions, Claimant was being assisted to and from the chow hall by other inmates.

Claimant’s testimony is that in the days and weeks after the accident, he experienced increasingly painful burning sensations and shooting pains in his back, until he could barely walk.

Even if Claimant’s pre-existing condition had been proven with specificity, it does not operate as a separate occurrence that relieves the Respondent of liability, as the Respondent claims. The Claimant showed that the impact of Superintendent Mott’s vehicle caused his injuries for the reasons stated above, thus completing his prima facie case of negligence. He is therefore entitled to an award of damages from this Court, consistent with our analysis below.

DAMAGES

The next issue is the amount of damages that resulted to Claimant. Prior to discussing the specific damages in this case, the Court notes that tort actions brought in the Court of Claims are normally subject to a $100,000 cap on damages. There is an exception when a claimant is injured due to the negligence of a state employee while operating a state owned vehicle. 705 ILCS 505/8(d). This case falls within the statutory exception. It is undisputed and stipulated that when Superintendent Mott struck Claimant, he was an Illinois state employee driving an Illinois state vehicle acting within the scope of his employment. The $100,000 cap on damages does not apply in this case.

We note that the aggravation of pre-existing condition is a factor, but not an element of damages. Luye v. Schoppel, 348 Ill.App.3d. 767, 773 (1st Dist. 2004). A plaintiff can only recover for that part of his suffering that proximately results from defendant’s negligence and was thereby activated, aggravated or accelerated. Gruidl v. Schell, 166 Ill.App.3d 276, 282 (1st Dist. 1988). It is with this backdrop that we assess the damages in the case at bar.

As to the question of whether the Illinois Auto Liability Fund, 20 ILCS 405/405-105 (11) (The CMS Law) operates as a limit to the amount of Claimant’s damages in this case, the Court need not address this issue as the award set forth in the Order is less than the limitation set forth in the Act.

[*135] A. Lost Wages

In order to recover for future lost wages, the Claimant must show the cash value of wages reasonably certain to be lost in the future. (IPI 30.07). The evidence that Claimant submitted on lost wages, however, consists only of Mr. Dunlap’s speculative testimony.

Mr. Dunlap gave testimony explaining how a member of the union in Claimant’s position, during the years 2010 to 2032, would work a 40-hour work week for 38 weeks a year. These numbers were not applied to Claimant specifically. Mr. Dunlap stated merely that Claimant would have been allowed to return to work in the union full-time, and admitted that he would have been placed at the bottom of the list for jobs and that he could have withdrawn at any time. Furthermore, although Mr. Dunlap testified that union members could work overtime, it was hardly certain that Claimant would have a future job, much less a job that might include some unknown amount of overtime. Therefore, Claimant cannot recover for lost wages in this case.

B. Pain and Suffering

The Claimant has demonstrated that his injuries caused him to experience considerable amounts of pain and suffering and will continue to cause him pain and suffering in the future. The Claimant’s pain has resulted in loss of normal life in the past and will continue to inhibit his ability to pursue the more enjoyable aspects of life in the future. Dr. Raphael, a certified life care planner, testified that Claimant has a personal attendant seven days a week for approximately five hours a day. The personal attendant helps with the cleaning, cooking, bathing, laundry and whatever else the Claimant may need. Claimant also sees a therapist two days a week. For medical appointments, Client First provides him with transportation. Dr. Raphael testified that Claimant’s life will remain this way for the rest of his days. Claimant is 48 years old.

The Claimant himself testified that, as a result of his pain, he had to have a machine implanted on his left side, and electrical cords wrapped around his spinal cord to try to relieve pressure. When that did not work, the Claimant had a pain pump inserted, only to have a severe reaction to the medication. The Claimant needs a wheelchair at all times to get out of the house. He does not have days where his pain is completely gone. Some days, he is bedridden. Claimant describes his bedridden days as “terrible days,” and “okay days” are days where Claimant “thanks God that it wasn’t a bad day.”

C. Set-Off

We note that the parties stipulated to a $25,000.00 set-off for Claimant’s recovery from Dr. Schultz in a separate civil law suit. As such, this Court will deduct $25,000.00 from Claimant’s award.

D. Medical Bills and Life Care Plan

1. Past Medicals

[*136] Plaintiff introduced evidence that Claimant received $436,891.14 in medical care. The Illinois Department of Health and Family Services asserted a lien in the amount of $119,400.86 for medical bills paid by Medicaid.

Under the Collateral Source Rule, benefits received by the injured party from a source wholly independent of, and collateral to, the tortfeasor will not diminish damages otherwise recoverable from the tortfeasor. Wills v. Foster, 229 Ill.2d 393, 399 (2008). The logic behind the Collateral Source Rule is to prevent the wrongdoer from benefitting from expenditures made by the insured party in obtaining insurance coverage. Id. At the same time, the purpose of compensatory damages is to compensate a plaintiff and not to punish a defendant or bestow a windfall upon plaintiffs. Peterson v. Lou Bachrodt Chevrolet, 76 Ill.2d 353, 362 (1979).

In Wills, the Illinois Supreme Court held that from an evidentiary standpoint the fair calculation of medical expenses is the full amount or reasonable value of services provided, rather than the actual amounts paid by Medicaid or Medicare. But the instant case is distinguishable because, unlike the defendant in Wills, the Respondent is the payor of the subject medical expenses. Thus, the sources of payment are wholly dependent rather than wholly independent of Respondent, the tortfeasor in this case.

It would be an absurd result to have the State pay Claimant’s medical bills out of one pocket and then have this Court award damages paid by the State, including these medical expenses, only to have the State attempt to subrogate its rights by collection of a portion of the award through a lien or otherwise. As such, we find that medical bills paid from Medicaid and the Department of Corrections are excluded from the award of the damages. Because of this the Medicaid lien asserted in this case is hereby adjudicated as invalid.

2. Future Medicals and Life Care

As to Claimant’s future medical care, Claimant must show the cash value of future medical expenses reasonably certain to be incurred in the future. (IPI 30.08). All three of Claimant’s treating doctors, including Dr. Raphael, testified that Claimant will be in pain for the rest of his days and that his health will continue to deteriorate. There is little that can be done to improve his condition. Dr. Raphael’s Life Care Plan provides an estimate of the future costs of pain medications, walking aids (including a wheelchair) and personal attendants. But there are no specific accounts of medical treatment that Claimant will undergo in the future. Furthermore, even if Claimant has surgery for a pain pump, as Dr. Thom recommended, no such surgery is scheduled. Therefore, Claimant’s expert testimony to support future medical expenses and life care is speculative. Our calculation for future medical expenses and life care reflects that.

[*137] AWARD

In assessing the testimony of the witnesses, the briefs in support, and all of the evidence and law on the issue of damages, we find for the Claimant as follows:

Past Medical Expenses: $ 0.00

Future Medical Expenses and Life Care Plan: $ 250,000.00

Lost Future Wages: $ 0.00

Past Pain and Suffering $ 125,000.00

Future Pain and Suffering $ 150,000.00

Past Loss of Normal Life: $ 100,000.00

Future Loss of Normal Life: $ 150,000.00

Less set-off settlement with Dr. Schultz: $ (25,000.00)

Total Award: $ 750,000.00

This Court finds for Claimant Emmitt Tiner, against Respondent State of Illinois, and awards Claimant damages in the amount of $750,000.00.

IT IS SO ORDERED.

ORDER

This cause coming on for hearing on Claimant’s Petition for Rehearing Regarding Wage Loss Damages Only, and Respondent’s Objection thereto, and this Court being fully advised in the premises;

In a Petition for Rehearing, the Petition is to state the points supposed to have been overlooked or misapprehended by the Court, with authorities and suggestions stated in support. 74 Ill. Admin. Code § 790.220. New trials are addressed at the sound discretion of the trial court. Wells v. State, 38 Ill.Ct.Cl. 142, 148 (1985), citing in re Marriage of Hopkins, 106 Ill. App. 3d 135 (1982). Generally, motions for a rehearing include reconsideration by the trial court for a “misapprehension” of law. Wells at 148. At other times, such motions allege that there is “newly discovered” evidence for the Court’s consideration. Wells at 148, citing Drury v. Catholic Home Bureau, 34 Ill.2d 84 (1966). Additionally, re-argument cannot be the basis for a Petition for Rehearing. Bowermaster v. State, 6 Ill.Ct.Cl. 322, 323 (1929).

In the case at bar, the Court carefully considered the question of Mr. Tiner’s prospective wage loss. At the end of the day, we concluded and we reaffirm today our conclusion that Mr. Tiner did not meet his burden of proof as it relates to future wage loss.

IT IS HEREBY ORDERED that Claimant’s Petition for Rehearing Regarding Wage Loss Damages Only is DENIED.