The Fifth District Appellate Court on Friday awarded a fourth trial to a southern Illinois woman who claims she was injured when the driver of another vehicle rear-ended her in 2006.
Although the jury in her third trial entered a $30,286.46 verdict in her favor, plaintiff Kathryn L. Vanoosting appealed, arguing that she was deprived a fair trial when the Union County Circuit Court refused her testimony that a lack of medical insurance prevented her from seeking medical attention in the years prior to the trial.
She also claimed that the jury's $0 award for loss of a normal life was the result of an improper argument made by defense counsel, who referred to her damages request for both loss of a normal life and pain and suffering as "double-dipping."
In an 11-page opinion written by Justice Stephen L. Spomer, the unanimous appeals panel said although evidence over the existence of health insurance is typically inadmissible, such evidence can be admitted to prove relevant issues raised in the case.
"Here, the plaintiff's testimony that she did not seek further treatment due to her lack of insurance is of consequence to her claim for future medical expenses and to the rebuttal of defense theory that she no longer has pain and suffering or a need for treatment due to her lack of treatment in the last three years," Spomer wrote for the appeals panel.
"Accordingly, we find that the plaintiff's proffered testimony is relevant under Illinois rules."
Vanoosting sued Carl Sellers in 2008 for negligence, alleging that she received injuries when he rear-ended her vehicle two years earlier. She sought damages in the amount of about $90,000 for past and future pain and suffering, loss of a normal life, disability and loss of earning capacity.
In 2010, Sellers filed an admission of negligence, sending the case to trial on the sole issue of damages. The circuit court declared a mistrial based on statements made by a juror in chambers. Shortly after the second trial began in January 2011, the circuit court declared another mistrial.
The basis for the second mistrial, which Vanoosting focused on in her appeal, dealt with her testimony during cross examination and redirect. Responding to a question from defense counsel, Vanoosting said she had not been to the doctor in the three years preceding trial. On redirect, Vanoosting's attorney asked whether she had health insurance at either the time of the wreck or now, to which she answered "no."
Based on the health insurance question posed by Vanoosting's lawyer, Seller's defense attorney requested a mistrial, which the court granted. Before the third trial began, Vanoosting filed a motion in liminie to introduce evidence that she didn't have health insurance or in the alternative, to bar defendant from introducing evidence that she hadn't gone to the doctor in three years.
The appellate court ruling said that it appeared that the lower court denied Vanoosting's motion, but granted her request to bar defense counsel from introducing evidence that she sought little or no medical attention in the three years before trial.
During trial, however, defense counsel told the jury that Vanoosting had not seen a doctor since 2008. Vanoosting then told the jury that even though she requested a clean bill of health six weeks after the incident in order to secure a job, she was still in pain and started seeing a specialized dentist for jaw problems.
When her attorney asked if there were obstacles that prevented her from receiving treatment, defense counsel objected and the circuit court instructed the jury to disregard the question. In an offer of proof given outside the presence of the jury, Vanoosting testified that she did not have health insurance and her car insurance only covered two years of medical treatment. She said she would seek further medical treatment if the jury awarded her expenses to do so.
During closing arguments, Vanoosting's attorney asked the jury to award her client $90,000, including $18,000 for past medical expenses, $12,000 for future medical bills, $30,000 for pain and suffering and $30,000 for loss of a normal life.
Defense counsel referred to Vanoosting's damages request for both pain and suffering and loss of a normal life as "double dipping," a term Vanoosting's attorney objected to. The circuit court didn't rule on the objection, but told defense counsel that his reference to "double dipping" could be confusing to the jury.
The jury returned a verdict, awarding Vanoosting about $18,000 for medical expenses, $12,000 for pain and suffering and $0 for loss of a normal life. But, on Friday, the appeals panel reversed the lower court and remanded the case back with directions that Vanoosting get a new trial, which will be her fourth.
"Although we are mindful of the potential impact that the plaintiff's financial position may have on the sympathies of the jury," the panel held that the lower court "could have restricted the evidence to its proper purpose and scope and instructed the jury accordingly" by tailoring its instructions to the jury.
The panel ruled that the lower court's error in excluding Vanoosting's testimony warrants a new trial because the case was close enough on its facts for the jury to decide either way.
"[T]the contested testimony relates directly to the central controversy of the case, namely, the extent of the plaintiff's damages and whether the plaintiff is entitled to damages for future pain and suffering, medical expenses and loss of a normal life," the ruling states.
"This is especially true in light of defense counsel's strategy of repeatedly highlighting the fact that plaintiff had no treatment for her injuries in the three years prior to trial in his cross examination of witnesses and closing argument."
Because the panel awarded a new trial, it did not rule on Vanoosting's arguments over the jury's $0 verdict for loss of a normal life and defense counsel's reference to her damages request for both loss or a normal life and pain and suffering as "double dipping."
It did, however, point out that Illinois law considers these two claims separate elements of damages. The panel also said that defense counsel's "double dipping" statement "is an improper legal argument" and that "any objection to such a comment should be sustained."
Union County Judge Mark Boie presided over the trial. Justices Thomas M. Welch and Melissa A. Chapman concurred with Spomer in Friday's ruling.
Marion attorney Stephen W. Stone represented Vanoosting and James B. Bleyer, also of Marion, represented Sellers.
The Fifth District Appellate Court case number is No. 5-11-0365.