{ "id": 2512819, "name": "JOHN R. ONION, Plaintiff-Appellee, v. CHICAGO AND ILLINOIS MIDLAND RAILWAY COMPANY, Defendant-Appellant", "name_abbreviation": "Onion v. Chicago & Illinois Midland Railway Co.", "decision_date": "1989-11-30", "docket_number": "No. 4\u201489\u20140275", "first_page": "318", "last_page": "322", "citations": [ { "type": "official", "cite": "191 Ill. App. 3d 318" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "193 N.E.2d 879", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "888" }, { "page": "888" } ], "opinion_index": 0 }, { "cite": "43 Ill. App. 2d 460", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5244821 ], "weight": 2, "pin_cites": [ { "page": "475" }, { "page": "475" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/43/0460-01" ] }, { "cite": "390 N.E.2d 1384", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1388" }, { "page": "1388" } ], "opinion_index": 0 }, { "cite": "73 Ill. App. 3d 74", "category": "reporters:state", "reporter": "Ill. 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ONION, Plaintiff-Appellee, v. CHICAGO AND ILLINOIS MIDLAND RAILWAY COMPANY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE STEIGMANN\ndelivered the opinion of the court:\nDefendant, Chicago and Illinois Midland Railway Company, appeals (1) the trial court\u2019s decision to give a jury instruction on pain and suffering, and (2) the trial court's refusal of an instruction on the nontaxability of the jury award.\nPlaintiff, John R. Onion, a railroad employee, brought a personal injury action against his employer, the defendant, pursuant to the Federal Employers\u2019 Liability Act (FELA) (45 U.S.C. \u00a751 et seq. (1982)). Over defendant\u2019s objection the trial court decided not to instruct the jury that any damages awarded to plaintiff would not be subject to income tax. Defendant similarly objected to the court\u2019s decision to instruct the jury that it may consider plaintiff\u2019s future pain and suffering. Defendant claims that no evidence of plaintiff\u2019s pain and suffering was presented at trial.\nThe trial court\u2019s decision to give or to refuse a jury instruction must be affirmed if the court\u2019s decision was correct on any ground. A correct decision must be affirmed even if based on an incorrect reason. Kingston v. Turner (1987), 115 Ill. 2d 445, 455-56, 505 N.E.2d 320, 324; Pioneer Hi-Bred Corn Co. v. Northern Illinois Gas Co. (1975), 61 Ill. 2d 6,14, 329 N.E.2d 228, 231.\nThe United States Supreme Court dealt with the issue of whether it was error to refuse to instruct a jury on the nontaxability of the jury\u2019s award in Norfolk & Western Ry. Co. v. Liepelt (1980), 444 U.S. 490, 62 L. Ed. 2d 689, 100 S. Ct. 755. Specifically, the Court stated:\n\u201cAlthough the law is perfectly clear, it is entirely possible that the members of the jury may assume that a plaintiff\u2019s recovery in a case of this kind will be subject to federal taxation, and that the award should be increased substantially in order to be sure that the injured party is fully compensated. The Missouri Supreme Court expressed the opinion that \u2018it is reasonable to assume the average juror would believe [that its verdict will] be subject to such taxes.\u2019 Dempsey v. Thompson, 363 Mo. 339, 346, 251 S.W.2d 42, 45 (1952).\u201d Liepelt, 444 U.S. at 496-97, 62 L. Ed. 2d at 695, 100 S. Ct. at 759.\nThe Court further held:\n\u201c[I]t was error to refuse the requested instruction in this case. That instruction was brief and could be easily understood. It would not complicate the trial by making additional qualifying or supplemental instructions necessary. It would not be prejudicial to either party, but would merely eliminate an area of doubt or speculation that might have an improper impact on the computation of the amount of damages.\u201d Liepelt, 444 U.S. at 498, 62 L. Ed. 2d at 696, 100 S. Ct. at 759-60.\nLiepelt was brought pursuant to the FELA and concerned a wrongful death claim. However, Liepelt is not limited to wrongful death cases. See Oltersdorf v. Chesapeake & Ohio R.R. Co. (1980), 83 Ill. App. 3d 457, 404 N.E.2d 320, where the holding in Liepelt was applied to an FELA personal injury action. Both Liepelt and Oltersdorf held that the trial court\u2019s failure to give this instruction warranted reversal. Oltersdorf, 83 Ill. App. 3d at 464, 404 N.E.2d at 325.\nAlthough FELA actions may be brought in either State or Federal court, Federal law controls as to instructions on damages. (Liepelt, 444 U.S. at 493, 62 L. Ed. 2d at 693, 100 S. Ct. at 757.) However, cases based solely on Illinois law are not entitled to a Liepelt instruction. Klawonn v. Mitchell (1985), 105 Ill. 2d 450, 456, 475 N.E.2d 857, 860.\nSince the instant case is based on Federal law, the Liepelt instruction should have been given to the jury. The trial court\u2019s failure to do so was reversible error.\nThe second issue on appeal concerns the trial court\u2019s decision to instruct the jury as to the plaintiff\u2019s future pain and suffering. \u201cSome evidence\u201d on this point from either an expert or a layperson warrants the giving of a jury instruction. (Harvey v. Norfolk & Western Ry. Co. (1979), 73 Ill. App. 3d 74, 81, 390 N.E.2d 1384, 1388;\nMcNealy v. Illinois Central R.R. Co. (1963), 43 Ill. App. 2d 460, 475, 193 N.E.2d 879, 888.) The testimony regarding plaintiff\u2019s future pain and suffering is as follows:\n\u201cQ. Now from January fourth to the time you returned to work, how many of those days would you say you experienced pain as compared to days you didn\u2019t experience pain?\nA. Every one of them.\nQ. And how would you describe the severity of the pain you experienced?\nA. It slowly kept getting worse.\nQ. And where did you have the pain?\nA. In the back of my neck, my shoulders and in my left arm.\nQ. Is there anything about the accident you sustained on January 4,1987, that still [a]ffects you here today?\nA. Yes, it does.\nQ. In what way?\nA. Well one when I sit. My arm, my fingers, the back of my arm, right in through here, most of this finger, and back side of this will start getting numb.\nQ. What else, if anything]?]\nA. After sitting for a while I get burning in the back of my neck.\nQ. Where about exactly?\nA. Right toward the base of my neck and in my shoulder.\u201d Plaintiff later testified to the following:\n\u201cQ. Mr. Onion do you use your back, neck and left arm the same as you did prior to January 4,1987?\nA. No, I don\u2019t. I take it a lot easier now than what I use to.\nQ. Why is that?\nA. Any heavy lifting now or anything that I do that [is] strenuous causes a pain in my neck, causes numbness [to] start in my left arm and in my two fingers.\u201d\nIn addition, defendant\u2019s expert, John Meyer, M.D., testified as follows:\n\u201cQ. Doctor there are many back and neck injuries that manifest themselves for months and months and even years in some people, isn\u2019t that correct?\nA. That is possible.\nQ. And in between the times that they show up, people appear to be in pretty good shape, don\u2019t they?\nA. That is conceivable. I would imagine. Usually by the\ntime they get well for any period of time it is usually another injury.\nQ. It is easy to reinjure yourself after you have [been] hurt.\nA. It is possible.\nQ. In fact he has had back and neck injuries in the past.\nA. He did.\nQ. It wouldn\u2019t be hard to believe Mr. Onion\u2019s back and neck would be subject to reinjury?\nA. That is possible.\u201d\nIllinois case law provides very little guidance as to the degree of proof that constitutes \u201csome evidence\u201d required for a pain and suffering instruction. In two decisions, expert testimony as to the permanence of the pain caused by the accident was held to meet this standard. Harvey, 73 Ill. App. 3d at 81, 390 N.E.2d at 1388; McNealy, 43 Ill. App. 2d at 475,193 N.E.2d at 888.\nThe only expert testimony which clearly addresses the permanence of plaintiff\u2019s injury is Dr. Meyer\u2019s testimony that reinjury of plaintiff\u2019s back and neck was possible. Nonexpert testimony concerning plaintiff\u2019s future pain and suffering was elicited from plaintiff himself. Illinois law does not require that the evidence supporting a jury instruction on future pain and suffering be only in the form of expert testimony, and we see no reason to change this rule of law. Jurors are capable of properly evaluating a plaintiff\u2019s testimony as to pain and suffering, and they will no doubt take into account a plaintiff\u2019s interest in the outcome of the lawsuit as well as a plaintiff\u2019s lack of technical expertise on what his or her future physical condition, and related pain, may be.\nTherefore, we hold that based on both plaintiff\u2019s and Dr. Meyer\u2019s testimony, \u201csome evidence\u201d of plaintiff\u2019s future pain and suffering was presented at trial. The trial court\u2019s decision to give the jury this instruction was not an abuse of discretion.\nAccordingly, the judgment in favor of plaintiff and against respondent is affirmed, the award of damages is reversed, and this cause, in accordance with the views expressed in this opinion, is remanded for retrial solely on the issue of damages.\nAffirmed in part; reversed in part and remanded with directions.\nMcCULLOUGH, P. J., and KNECHT, J., concur.", "type": "majority", "author": "JUSTICE STEIGMANN" } ], "attorneys": [ "Graham & Graham, of Springfield (Charles E. Holt, of counsel), for appellant.", "William H. Knuppel, of Boggs & Knuppel, P.C., of Havana, for appellee." ], "corrections": "", "head_matter": "JOHN R. ONION, Plaintiff-Appellee, v. CHICAGO AND ILLINOIS MIDLAND RAILWAY COMPANY, Defendant-Appellant.\nFourth District\nNo. 4\u201489\u20140275\nOpinion filed November 30, 1989.\nGraham & Graham, of Springfield (Charles E. Holt, of counsel), for appellant.\nWilliam H. Knuppel, of Boggs & Knuppel, P.C., of Havana, for appellee." }, "file_name": "0318-01", "first_page_order": 340, "last_page_order": 344 }