{ "id": 2989181, "name": "ROGER FICKEN, Plaintiff-Appellant, v. ALTON AND SOUTHERN RAILWAY COMPANY, Defendant-Appellee", "name_abbreviation": "Ficken v. Alton & Southern Railway Co.", "decision_date": "1993-12-30", "docket_number": "No. 5\u201491\u20140513", "first_page": "1047", "last_page": "1066", "citations": [ { "type": "official", "cite": "255 Ill. App. 3d 1047" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "532 N.E.2d 903", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "177 Ill. App. 3d 207", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3621397 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/177/0207-01" ] }, { "cite": "430 N.E.2d 377", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "102 Ill. App. 3d 851", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3072071 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/0851-01" ] }, { "cite": "468 N.E.2d 1228", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1235" } ], "opinion_index": 0 }, { "cite": "102 Ill. 2d 505", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3156104 ], "pin_cites": [ { "page": "519" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/102/0505-01" ] }, { "cite": "487 N.E.2d 798", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "806" } ], "opinion_index": 0 }, { "cite": "139 Ill. App. 3d 397", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3568898 ], "pin_cites": [ { "page": "407" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/139/0397-01" ] }, { "cite": "502 N.E.2d 1200", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "151 Ill. App. 3d 250", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3541210 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/151/0250-01" ] }, { "cite": "548 N.E.2d 96", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "101" }, { "page": "102" } ], "opinion_index": 0 }, { "cite": "191 Ill. App. 3d 637", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2510686 ], "weight": 3, "pin_cites": [ { "page": "646" }, { "page": "646" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/191/0637-01" ] }, { "cite": "586 N.E.2d 352", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "355" } ], "opinion_index": 0 }, { "cite": "224 Ill. App. 3d 229", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5252040 ], "weight": 2, "pin_cites": [ { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/224/0229-01" ] }, { "cite": "529 N.E.2d 525", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "124 Ill. 2d 226", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3217866 ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0226-01" ] }, { "cite": "353 N.E.2d 273", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "41 Ill. App. 3d 25", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2491301 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/41/0025-01" ] }, { "cite": "533 N.E.2d 894", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 5, "year": 1976, "pin_cites": [ { "page": "897" }, { "page": "897" }, { "page": "897", "parenthetical": "Ryan, J., dissenting" }, { "page": "898", "parenthetical": "Miller, J., dissenting" } ], "opinion_index": 0 }, { "cite": "126 Ill. 2d 171", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5557493 ], "weight": 5, "year": 1976, "pin_cites": [ { "page": "176" }, { "page": "176" }, { "page": "177-78" }, { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/126/0171-01" ] }, { "cite": "72 N.E. 755", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "213 Ill. 274", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3313503 ], "opinion_index": 0, "case_paths": [ "/ill/213/0274-01" ] }, { "cite": "562 N.E.2d 1086", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1952, "pin_cites": [ { "page": "1089-1100" } ], "opinion_index": 0 }, { "cite": "204 Ill. App. 3d 961", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2577282 ], "year": 1952, "pin_cites": [ { "page": "983" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/204/0961-01" ] }, { "cite": "543 N.E.2d 1328", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1335" } ], "opinion_index": 0 }, { "cite": "188 Ill. App. 3d 193", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2689735 ], "pin_cites": [ { "page": "204" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/188/0193-01" ] }, { "cite": "394 N.E.2d 391", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "76 Ill. 2d 451", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2983021 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/76/0451-01" ] }, { "cite": "104 N.E.2d 635", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "640" }, { "page": "640" } ], "opinion_index": 0 }, { "cite": "346 Ill. App. 220", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2432400 ], "weight": 2, "pin_cites": [ { "page": "231" }, { "page": "231" } ], "opinion_index": 0, "case_paths": [ "/ill-app/346/0220-01" ] }, { "cite": "45 U.S.C.A. \u00a751", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1986, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1415, "char_count": 43458, "ocr_confidence": 0.768, "pagerank": { "raw": 1.5876251364495247e-07, "percentile": 0.681496874914329 }, "sha256": "d528f5f59529dffeff6fcc47bf33b8fd15411cd21cf2f30cb23906d65bd2ec42", "simhash": "1:af161208a72fc92c", "word_count": 7361 }, "last_updated": "2023-07-14T21:02:11.364828+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ROGER FICKEN, Plaintiff-Appellant, v. ALTON AND SOUTHERN RAILWAY COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE GOLDENHERSH\ndelivered the opinion of the court:\nPlaintiff, Roger Ficken, appeals from the judgment of the circuit court of Madison County entered after the jury returned a general verdict in favor of defendant, Alton & Southern Railroad Company, in this action brought under the Federal Employers\u2019 Liability Act (FELA) (45 U.S.C.A. \u00a751 et seq. (1986)). In this cause, plaintiff raises two issues: (1) whether the jury verdict was against the manifest weight of the evidence, and (2) whether numerous rulings of the trial court, either individually or collectively, resulted in a denial of plaintiff\u2019s right to a fair trial as guaranteed under the FELA. We reverse and remand for a new trial.\nI\nWe will relate only those facts necessary for an understanding of our determination in this case. Plaintiff was employed as a switchman by defendant. Early in March 1989, plaintiff was injured while performing a \u201ctrimming\u201d operation, which involves closing the gaps between cars on a track to make room for additional cars. The trim job is done in the bowl yard, an area where the track dips in the middle and is higher at the two ends. The cars are shoved from the east end to the west end of the track. During a trimming maneuver, the switchman looks down the tracks to determine where the gaps are located and then gives the conductor an appropriate sign with his lamp. On the night in question, plaintiff looked down the track and saw three gaps. Plaintiff was standing on the steps of the engine hanging on with one hand and signaled to the engineer to shove until he believed the gaps were closed. Plaintiff was just about ready to signal for the engineer to stop when the train hit another group of cars he had not seen and did not anticipate. During a trimming maneuver there is a jarring which results when the cars hit together and, if impact is not anticipated, one can receive a jolt.\nPlaintiff and five other railroad employees all testified that they were uncomfortable performing the trim job because it involved \u201cshoving in the blind.\u201d This means that one never knows how far he is going to go before he hits another car. Plaintiff and his witnesses all felt more comfortable when there was a \u201cbull ring man\u201d on the job at the west end of the track. The bull ring man would position himself in the west end of the bull yard and communicate with the trim crew via walkie-talkie. He would tell the switchman how far he could drift before coming in contact with the next car. The bull ring man\u2019s main function was to keep the cars on the west end of the track from running out to the lead track. The bull ring position had been eliminated by defendant sometime in the early 1980\u2019s.\nPlaintiff and his witnesses all testified that they would be more comfortable coupling each individual car rather than letting the cars drift down the bull yard. When coupling, each gap is closed one at a time until the train comes to the point. There is always a switchman on the ground next to the car to be coupled giving directions to the engineer to slow down or stop.\nFloyd Cooper, defendant\u2019s superintendent, was called as an adverse witness. He disagreed that the crews were \u201cshoving in the blind\u201d on the trim job. He also stated that it was not the duty of the bull ring man to walk the track for a train crew or tell the crew where the gaps were located. Those duties were to be performed by the groundmen. Cooper could not remember receiving any complaints concerning the method employed in performing the trim job. Plaintiff attempted to introduce documents to impeach Cooper on this point. The trial court denied plaintiff\u2019s request to introduce these documents, finding them to be irrelevant to the issues and/or hearsay. We will discuss these documents, namely the \u201cBruner\u201d and the \u201cHeath\u201d documents, later in this opinion.\nWhile performing the trimming incident in question, plaintiff twisted around approximately 180 degrees and slammed into the front of the engine when the unanticipated impact occurred. Plaintiff had the wind knocked out of him and experienced pain in his rib cage and lower back. He immediately told the conductor about the incident. Plaintiff continued to work for a number of hours until the pain in his rib cage got so severe that he asked the conductor if someone could take him to the hospital. He received nonnarcotic pain killers in the emergency room. Plaintiff used those until they ran out, and then he just kept working through the pain. Approximately three weeks after the incident, on March 29, 1989, plaintiff sought treatment from a chiropractor, Dr. Timothy Hackney, who had treated him for prior back injuries. Plaintiff advised defendant, through Floyd Cooper, superintendent of the railroad, that he was seeing a chiropractor. Cooper then advised defendant to see the company doctor. The company doctor took X rays, instructed plaintiff not to work anymore, and recommended plaintiff see Dr. Syed Ali, a neurologist. Plaintiff sought treatment from Dr. Ali and, at the time of the trial, was still under treatment with Dr. Ali and his partner, Dr. Riaz Naseer.\nDr. Ali testified that he first saw plaintiff on April 6, 1989. Dr. Ali diagnosed plaintiff as suffering from lumbar radiculopathy. Radiculopathy essentially means nerve root irritation. Dr. Ali performed a myelogram on plaintiff. It \u201crevealed a disc herniation lateralizing to the left side at the L4-L5 level.\u201d Dr. Ali opined that the fact plaintiff was able to return to work after previous injuries meant that any previous inflammation of the nerve root had healed itself. Dr. Ali further opined, based upon a reasonable degree of medical certainty, that plaintiff\u2019s lumbar radiculopathy was a direct result of the injuries he sustained during the accident in question. Dr. Ali further opined that plaintiff\u2019s physical condition, even after surgery, would continue to cause him pain and suffering in the future as it had in the past. Dr. Ali testified that plaintiff should not participate in heavy industrial labor, such as a switchman\u2019s position, and concluded plaintiff was physically disabled.\nDefense counsel objected to any testimony by Dr. Ali concerning Dr. Ali\u2019s examination of plaintiff the morning Dr. Ali was to testify. The trial court sustained defendant\u2019s objection. In addition, the trial court would not allow Dr. Ali to testify about any examination after July 1989, since Dr. Ali\u2019s partner, Dr. Naseer, had performed all examinations taking place after that date. The trial court stated that such testimony would be inadmissible hearsay.\nPlaintiff also sought treatment with Dr. George Schoedinger, an orthopedic surgeon. Plaintiff\u2019s first visit with Dr. Schoedinger was on May 30, 1989. Dr. Schoedinger advised against engaging in \u201cheavy industrial activity and specifically railroad work.\u201d Ultimately, Dr. Schoedinger found a disc rupture at the L4-L5 level and on October 11, 1990, performed a lumbar discectomy. After reviewing plaintiff\u2019s history of prior back trouble, Dr. Schoedinger testified that plaintiff\u2019s symptoms began prior to the March 1989 incident and, therefore, the March 1989 incident was \u201can aggravation of a pre-existing difficulty.\u201d Dr. Schoedinger opined that it would not be in plaintiff\u2019s best interest to resume heavy industrial activity. Plaintiff had suffered a permanent injury to his disc and would be subject to reinjury in the future.\nAs indicated, plaintiff had a previous history of back trouble. In the early 1980\u2019s, plaintiff was furloughed from the railroad. During that time, plaintiff worked for another company and during that employment twice injured his back. The first time plaintiff hurt his back lifting a metal grate and was off work for approximately one month. The second injury occurred when plaintiff was pulling up a hose and it got stuck. Plaintiff was off work for a few months because of that injury. In August 1986, plaintiff injured his back after lifting a picnic table. In November 1986, plaintiff injured his back while straightening out a draw bar. After this fourth injury, plaintiff was called back to the railroad, took a reemployment physical examination, given by defendant, and passed.\nDuring the jury instruction conference, plaintiff tendered Illinois Pattern Jury Instructions, Civil, No. 30.01 (3d ed. 1989) (hereinafter IPI Civil 3d), the pattern jury instruction relating to damages for the aggravation of a preexisting condition. The trial court, sua sponte, refused to give the instruction which contained IPI Civil 3d No. 30.03 on the grounds that the aggravation of a preexisting condition is not a separate element of damages. Ultimately, a general verdict in favor of defendant and against plaintiff was returned, and judgment was entered thereon.\nII\nPlaintiff raises numerous allegations of error which he argues either individually or collectively resulted in his being denied a fair trial. We agree with plaintiff that the cumulation of the following errors denied him a fair trial.\nFirst, plaintiff contends the trial court erred in refusing to give IPI Civil 3d No. 30.03, as part of IPI Civil 3d No. 30.01, instructing the jury that a proper element of damage is \u201cthe aggravation of any pre-existing ailment or condition.\u201d Defendant replies that \u201cthe jury instructions given on the aggravation of a pre-existing condition fairly and fully apprised the jury of plaintiff\u2019s theory of damages and any error in giving the damage instructions complained of did not affect the jury\u2019s decision on the issue of liability.\u201d We find that the trial court erred in refusing to give IPI Civil 3d No. 30.03.\nIPI Civil 3d No. 30.03 simply reads:\n\u201c30.03 Measure of Damages \u2014 Aggravation of Pre-Existing Ailment or Condition\nThe aggravation of any pre-existing ailment or condition.\u201d (IPI Civil 3d No. 30.03.)\nThe Notes on Use following the instruction state:\n\u201cThis element is to be inserted between the two paragraphs of IPI 30.01 when the evidence justifies its use.\u201d (IPI Civil 3d No. 30.03, Notes on Use.)\nThe comment on this damage instruction states:\n\u201cAn aggravation of a pre-existing ailment or condition has been recognized as a separate element of compensable damages in Illinois.\u201d (IPI Civil 3d No. 30.03, Comment.)\nIt then cites Behles v. Chicago Transit Authority (1952), 346 Ill. App. 220, 231, 104 N.E.2d 635, 640.\nThe trial court refused to give IPI Civil 3d No. 30.03 as part of IPI Civil 3d No. 30.01, which was to be part of plaintiff\u2019s number 18-A. The trial court, acting sua sponte, stated:\n\u201cTHE COURT: *** The Court objects to this instruction and refuses to give it.\n[Plaintiff\u2019s attorney]: Why?\nTHE COURT: Because the aggravation of any preexisting ailment or condition is not a separate element of damage.\n[Plaintiff\u2019s attorney]: It is in the I.P.I.\nTHE COURT: The I.P.I. is wrong. Let me explain this to you.\n[Plaintiff\u2019s attorney]: I understand.\nTHE COURT: This instruction should read \u2014 see, you need to get a new book. I think even in the new book, but I mean the preamble is wrong. You\u2019ve left out nature, extent and nature of the injury. They took it out as an element of damage, but it\u2019s something they should consider. The way this should read is that you must then fix the amount of money which will reasonably \u2014 fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damage, and then it says something like including the nature, extent and duration thereof, and you may further take into consideration the aggravation of any preexisting ailment or cannot proved [sic] by the evidence to result in [sic] the negligence of the defendant, and then you list them. But what this does is you get compensated for the disability and for the pain and suffering of the aggravated injury. You don\u2019t get compensated because your injury was aggravated, that\u2019s not a separate element of damage, and the I.RI. is just wrong, the new one is wrong.\n[Plaintiff\u2019s attorney]: It doesn\u2019t say anything in the preamble about the aggravation.\nTHE COURT: I know. The I.P.I. I said is wrong.\n* * *\nTHE COURT: You still get compensated for the pain and suffering, you get compensated for the disability, and because you had an old injury you get a separate blank for damages? I won\u2019t give it. It\u2019s wrong.\n[Plaintiff\u2019s attorney]: Can you show it\u2019s over my\u2014\nTHE COURT: Absolutely you can take it on appeal. There needs to be an Appellate Court decision. I\u2019ve been ranting and raving for two years now. I\u2019ve never given it and I wouldn\u2019t give it. It\u2019s not a separate element of damage. You put in the preamble they may take into consideration the aggravation of any preexisting, but the elements are still the same elements.\u201d\nIn place of the IPI instruction tendered by plaintiff, the court gave the following instruction:\n\u201cIf you decide for the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following elements of damages proved by the evidence to have resulted from the negligence of the defendant, taking into consideration the nature, extent and duration of the injury and taking into consideration the aggravation of any pre-existing ailment or condition.\n(a) The disability resulting from the injury.\n(b) The pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries.\n(c) The value of earnings lost and the present cash value of the earnings reasonably certain to be lost in the future.\nWhether any of these elements of damages was proved by the evidence is for you to determine.\u201d\nThe trial court also gave IPI Civil 3d No. 30.21, which reads:\n\u201c30.21 Measure of Damages \u2014 Personal Injury \u2014 Aggravation of Pre-Existing Condition \u2014 No Limitations\nIf you decide for the plaintiff on the question of liability, you may not deny or limit the plaintiff\u2019s right to damages resulting from this occurrence because any injury resulted from an aggravation of a pre-existing condition or a pre-existing condition which rendered the plaintiff more susceptible to injury.\u201d (IPI Civil 3d No. 30.21.)\nIPI Civil 3d No. 30.21 is a new instruction. The Notes on Use instruct a court to give IPI Civil 3d No. 30.21 whenever IPI Civil 3d No. 30.03 is given. IPI Civil 3d No. 30.21 is a direct result of our supreme court\u2019s decision in Balestri v. Terminal Freight Cooperative Association (1979), 76 Ill. 2d 451, 394 N.E.2d 391, in which it was determined that IPI Civil No. 30.01, even with the inclusion of IPI Civil No. 30.03, did not adequately instruct the jury on the issue of aggravation of a preexisting condition.\nSupreme Court Rule 239 instructs a trial court to use IPI instructions when applicable:\n\u201cRule 239. Instructions\n(a) Use of IPI Instruction; Requirements of Other Instructions. Whenever Illinois Pattern Jury Instructions (IPI) contains an instruction applicable in a civil case, giving due consideration to the facts and the prevailing law, and the court determines that the jury should be instructed on the subject, the IPI instruction shall be used, unless the court determines that it does not accurately state the law.\u201d (134 Ill. 2d R. 239.)\nIn the instant case, plaintiff\u2019s testimony showed that he had suffered back injuries on four separate previous occasions, the last one being in November 1986. However, plaintiff received a reemployment physical in December 1986. He passed that physical and was allowed to return to work. According to Dr. Schoedinger\u2019s testimony, plaintiff\u2019s injury constituted an aggravation of a preexisting condition. Under the facts presented, we cannot agree with defendant that the instructions as a whole fairly and fully advised the jury as to the issue of aggravation of a preexisting condition.\nThe law is clear that a tortfeasor is liable for injuries he causes, including the aggravation of any preexisting condition. (Balestri v. Terminal Freight Cooperative Association (1979), 76 Ill. 2d 451, 394 N.E.2d 391; Wheeler v. Roselawn Memory Gardens (1989), 188 Ill. App. 3d 193, 204, 543 N.E.2d 1328, 1335.) The aggravation of a preexisting ailment or condition is a separate element of compensable damages. (Grimming v. Alton & Southern Ry. Co. (1990), 204 Ill. App. 3d 961, 983, 562 N.E.2d 1086, 1089-1100; Behles v. Chicago Transit Authority (1952), 346 Ill. App. 220, 231, 104 N.E.2d 635, 640.) We do not agree with the trial court that IPI Civil 3d No. 30.03 permits a double recovery. Instead, we believe that the combination of IPI Civil 3d No. 30.03 and IPI Civil 3d No. 30.21 correctly states the law in Elinois that a tortfeasor is liable for injuries he causes, including aggravation of a preexisting condition. (Chicago City Ry. Co. v. Saxby (1904), 213 Ill. 274, 72 N.E. 755.) To give IPI Civil 3d No. 30.21 without IPI Civil 3d No. 30.03 is, in our estimation, confusing; IPI Civil 3d No. 30.03 should also have been given.\nDefendant further contends that because the instructions complained of concern damages, even assuming we find them to be incorrect, they do not constitute reversible error because they did not affect the jury\u2019s determination of liability. What defendant fails to consider is that a general verdict form was used in the instant case. The verdict simply read:\n\u201cWe, the Jury, find for the defendant, ALTON & SOUTHERN RAILWAY COMPANY, and against the plaintiff, ROGER FICKEN.\u201d\nWe have no way of determining whether the instructions complained of affected the jury\u2019s determination as to liability or merely damages.\nIll\nThe second contention raised by plaintiff is that the trial court erred in refusing to allow plaintiff\u2019s treating physician, Dr. Ali, to testify as to his examination of plaintiff at the courthouse on the morning of trial. Plaintiff also contends that the trial court erred in limiting Dr. Ali\u2019s testimony to his own examination of plaintiff in July 1989, rather than allowing Dr. Ali to rely on the notes and records of his partner, Dr. Naseer. Dr. Naseer saw plaintiff on August 14, 1990. Dr. Ali testified that he and Dr. Naseer see each other\u2019s patients \u201cinterchangeably\u201d and \u201crely on each other\u2019s notes and records.\u201d Defendant replies that plaintiff suffered no prejudice from the exclusi\u00f3n of Dr. Ali\u2019s testimony because plaintiff was allowed to elicit opinions from Dr. Ali through a hypothetical question. Defendant further contends that any error was waived because plaintiff failed to make an offer of proof as to what Dr. Ali would have testified to concerning the corridor examination. Likewise, the trial court never ruled on defendant\u2019s objection to the possible questioning of Dr. Ali based upon Dr. Naseer\u2019s August 1990 examination of plaintiff. Before the trial court ruled on this matter, plaintiff\u2019s counsel interjected, stating he would ask the doctor his opinion by way of hypothetical. We believe that the trial court was unduly restrictive and such restriction constituted error.\nThe law is clear that a treating physician may give opinion testimony regarding the permanent nature of a patient\u2019s injuries, providing a recent examination has been performed. (Wilson v. Chicago Transit Authority (1988), 126 Ill. 2d 171, 533 N.E.2d 894; Henricks v. Nyberg, Inc. (1976), 41 Ill. App. 3d 25, 353 N.E.2d 273.) In Wilson, our supreme court allowed testimony by a treating physician concerning the permanency of plaintiff\u2019s injuries based on an examination conducted on the last day of trial without disclosure to the defendant.\nThe defendant argued that the physician was an expert within the meaning of Supreme Court Rule 220, but the Wilson court found that not to be the case. (See also Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 529 N.E.2d 525.) Wilson also considered whether such an examination was contrived by the plaintiff in order to withhold information from the defendant. The Wilson court stated that the record did not \u201cunambiguously support\u201d the assertion that the plaintiff had engaged in a conceived plan of nondisclosure. (Wilson, 126 Ill. 2d at 176, 533 N.E.2d at 897.) Wilson then went on to hold that \u201c[t]his type of surprise *** must be avoided by adequate trial preparation and not through reliance on the \u2018protection\u2019 of Supreme Court Rule 220.\u201d (Wilson, 126 Ill. 2d at 176, 533 N.E.2d at 897.) Two justices dissented, noting that no amount of trial preparation would have prevented the surprise resulting from the treating physician\u2019s examination the morning of trial. The dissenting opinions concluded that allowing this practice gives the plaintiff an undue advantage and is \u201cnot playing by the rules.\u201d Wilson, 126 Ill. 2d at 177-78, 533 N.E.2d at 897 (Ryan, J., dissenting); Wilson, 126 Ill. 2d at 178, 533 N.E.2d at 898 (Miller, J., dissenting).\nIn the instant case, the trial court took the following view:\n\u201cTHE COURT: I am familiar with the cases that allow this. I want to take a quick look at them again. However, I can say that I don\u2019t agree with them. I really feel, particularly in this instance where you have a doctor [who] has not seen him since August of 1990, so that\u2019s September, October, November, December, January, February, that\u2019s six months ago, in effect the Court would feel that he\u2019s no longer a treating physician at this point since he is not seen in six months, has no appointment to see him in the future, to wait in the last minute and have him examined in the corridors, I don\u2019t like. I don\u2019t care really what the cases say. I don\u2019t like it and I think that it\u2019s improper at this juncture. It\u2019s nothing more than in my opinion a [Rule] 220 examination by a doctor who was his treating physician at one point but is no longer that, and I want to take a look at the cases, but I don\u2019t like it, I don\u2019t think it\u2019s fair, I don\u2019t think it gives the defendant a fair opportunity to defend the case.\n[Defendant\u2019s attorney]: I\u2019d like to say one other thing. In case we have not elected to request an independent medical examination pursuant to Supreme Court Rule 215, we have known what the medical is. I have no idea what this doctor is going to say on the basis of this examination that\u2019s performed today in the middle of trial. I think it's greatly unfair to me because I can\u2019t come in \u2014 and if this doctor says something that I would like to refute I could have an exam, I'm obviously prevented from having such an exam at this point.\nTHE COURT: Let me think about it a minute, but my preliminary ruling is the objection is going to be sustained. I don\u2019t think it\u2019s fair for those reasons. They have prepared for trial based on the last examination by Schoedinger, which was in November, they\u2014\n[Plaintiff\u2019s attorney]: John.\nTHE COURT: John whatever, they elected not to have a [Rule] 215 examination, and then we get an exam, in the corridor in the middle of trial, if he now says there is some future problem which is going to cause future surgery or whatever, they are handicapped now.\n[Plaintiff\u2019s attorney]: He\u2019s not going to say that.\nTHE COURT: It doesn\u2019t make any difference what he's going to say for whatever it is. How can they have an equal opportunity? Now, do you want to delay the trial for two weeks while they get an independent exam at this time?\n[Plaintiff\u2019s attorney]: No, I don\u2019t.\nTHE COURT: I just don\u2019t-\n[Plaintiff\u2019s attorney]: But when I had him look at the man this morning I relied on those cases.\nTHE COURT: That\u2019s f\u00edne, and we haven\u2019t hurt the trial so far, but I don\u2019t agree with the cases, I guess.\n[Plaintiff\u2019s attorney]: I understand that.\nTHE COURT: I don\u2019t think it\u2019s proper. I don\u2019t think it\u2019s proper. I think that it\u2019s sandbagging in the worst order, which is all of what [Rules] 215 and 220 is [sic] supposed to get away from. We will see if we can find the cases, and let me take a look at them.\n(Recess)\nTHE COURT: I\u2019ve had a few moments now to reflect on what I said before and I\u2019m going to stay with my ruling. I will not allow him to testify as to a corridor examination. I think it is absolutely outrageous. I don\u2019t know how anybody could ever prepare for trial if this is allowed. I think the recent Supreme Court case indicates that it is discretionary with the judge, and I also think that in that case there were several extenuating circumstances, although I don\u2019t even think they mitigate that much. After the examination apparently the plaintiff disclosed the examination to the defendant to interview the doctor before he hit the stand.\nSecondly, in that case the defendant did not ask for a continuance to get another examination, which I understand from the tenor of what the defendant said in this case is not the case, that if he is put in that position that he would feel that he should have an opportunity to have an independent exam.\nI think also the Supreme Court said that it is discretionary with the trial judge, in the exercise of my discretion, and I feel that it is totally unfair to the defendant. I will sustain the objection, and he will not be allowed to testify as to the corridor examination.\u201d\nThe majority in Wilson agreed that a treating physician can testify concerning the permanency of plaintiff\u2019s injuries based upon an examination performed the day of trial. Moreover, the dissents in Wilson make it clear that the court was aware of the problems presented by such testimony. Other courts have also considered such problems. Whether such testimony allows a plaintiff to go forward under a \u201cconceived plan of nondisclosure\u201d has been considered by our colleagues on the First District Appellate Court in the recent opinion of Phelps v. Chicago Transit Authority (1991), 224 Ill. App. 3d 229, 586 N.E.2d 352. The Phelps court specifically stated:\n\u201cThe Wilson decision demonstrates, however, that the supreme court is well aware of the problems caused by such undisclosed last-minute examinations. Despite this awareness, the court has not acted to amend its discovery rules to address the situation. Perhaps this is an area which should be covered by supreme court rules or appropriate legislation. However, given the complete lack of authority supporting the CTA\u2019s position, we decline to reverse the trial court\u2019s decision to admit the testimony in question.\u201d (Phelps, 224 Ill. App. 3d at 233, 586 N.E.2d at 355.)\nWe agree with the Phelps court that the supreme court was well aware of the problems caused by undisclosed last-minute examinations, but the court determined that testimony based upon such examinations was nevertheless admissible. In the instant case, we believe the trial court erred in not allowing Dr. Ali to testify based upon his examination of plaintiff earlier in the day.\nMoreover, the record discloses that the error was further compounded by the trial court\u2019s refusal to allow Dr. Ali to testify based upon his examination of the record and notes of his partner, Dr. Na-seer, from an August 1990 examination of plaintiff. Defendant is incorrect that plaintiff acquiesced in defendant\u2019s objection to Dr. Ali relying on Dr. Naseer's notes. The following excerpt from the record clearly indicates that the trial court was not going to allow Dr. Ali to rely on Dr. Naseer\u2019s notes and that Dr. All\u2019s testimony would be limited to his own examination of plaintiff in July 1989.\n\u201c[Defendant\u2019s attorney]: Now, Your Honor one thing. I anticipate, and I\u2019m not sure how we were going to handle this with the doctor, because one of the things that I want to ask the doctor is the last time he examined the plaintiff, and I want\u2014 because I think Dr. Naseer was the one that saw him in August of last year, I think Dr. Ali hasn\u2019t seen him since July of 1989, and I\u2019m trying to\u2014\nTHE COURT: Then I think the doctor ought to be brought back in here and instructed he can in no way rely upon that examination and must answer all questions as of the last time he saw him in July of 1989.\n[Plaintiff\u2019s attorney]: Wait a second. As of August of \u201990 because Ali and his partner relies [sie] on each other\u2019s records, he can rely on the records. It\u2019s one thing to keep out my exam this morning, but it\u2019s another thing to throw away all the records he\u2019s relying on.\nTHE COURT: Do you really want me to answer that? Do you want to make an issue of that? I\u2019ll answer it.\n[Plaintiff\u2019s attorney]: Are you saying he can\u2019t provide him the records?\nTHE COURT: Are you asking me now on the record to make a statement? I\u2019ll make the statement.\n[Plaintiff\u2019s attorney]: I don\u2019t want to put on the record when you start talking about like that the hair starts to stand up.\nTHE COURT: It ought to, because there is a very simple answer to what you\u2019re saying. Do you want the answer?\n[Plaintiff\u2019s attorney]: I don\u2019t know that I want it on the record.\nTHE COURT: It\u2019s the only way I\u2019m going to give you an answer.\n[Plaintiff\u2019s attorney]: I suppose I may as well hear it.\nTHE COURT: Do you want to hear it? The Court doesn\u2019t feel he can rely upon the records of August of 1990 since he didn\u2019t see him after that date. When did he rely upon him for the further treatment and care of the patient? He never relied on those records. He never saw him again. The reason they are admissible and not hearsay is because it\u2019s an exception which says that if a doctor later relies upon them in his further diagnosis and treatment of the patient the doctor accepts them as so accurate to use them as a basis for care and treatment, that if he\u2019s willing to rely upon them why aren\u2019t we, but if the last time this doctor saw him was July of 1989, he was just seen by another doctor in August of 1990, this doctor never saw him after August of 1990, how can he have relied upon these records? He didn\u2019t rely on them. He never saw them, did he, he didn\u2019t see \u2014 he never saw them in any physician/patient contact nor did he use them.\n[Plaintiff\u2019s attorney]: I think you\u2019re being unduly restrictive. I really do.\nTHE COURT: That\u2019s what makes horse races. I don\u2019t because I don\u2019t think he relied on them in August of 1990. How did he rely on them? When can he rely on them?\n[Plaintiff\u2019s attorney]: He\u2019s the man\u2019s treating physician. He and his partner see each other\u2019s patients interchangeably. They see patients for each other and couple each other\u2019s records. I mean, I think that this is, I think it\u2019s wrong.\nTHE COURT: It\u2019s in the record right now because there has been no objection to it at this point, and I\u2019m not going to go back and wipe it out. I don\u2019t know how in the hell we could go back and do that. Pardon my French, for the record, I can\u2019t.\n[Defendant\u2019s attorney]: I interpose an objection, if I didn\u2019t make it clear to the Court, and that\u2019s why I asked the question \u2014 or objected when he asked the question.\nTHE COURT: You asked a question based on speculation and time frame and he laid that foundation and continued on without objection.\n[Plaintiff\u2019s attorney]: I will tell the doctor and I will do it by hypothetical.\nTHE COURT: As far as-\n[Plaintiff\u2019s attorney]: I\u2019m going to ask him to assume the back surgery and assume Mr. Ficken telephoned yesterday that he still has pain.\nTHE COURT: There is nothing wrong with that. You can have a hypothetical based on the evidence.\u201d\nThe above colloquy clearly demonstrates that there was no acquiescence by plaintiff in the trial court\u2019s ruling nor was there any waiver of this issue by plaintiff. Moreover, we cannot agree with defendant that there was no prejudice to plaintiff because Dr. Ali was able to testify in the hypothetical. Instead, we agree with plaintiff that Dr. Ali\u2019s credibility was hurt and his testimony not as effective because of the trial court\u2019s erroneous ruling which forced plaintiff\u2019s attorney to ask questions about the permanency of plaintiff\u2019s injury in the hypothetical. Accordingly, we find that the trial court erred in unduly restricting Dr. Ali\u2019s testimony.\nIV\nThe final argument we will consider is whether the trial court erred in refusing to allow the proper impeachment of Floyd Cooper, superintendent of the railroad. In this regard, we believe two of plaintiff\u2019s contentions are meritorious. First, plaintiff contends that the trial court erred in refusing to allow introduction of David Bruner\u2019s personal injury report. The Bruner report was prepared by an employee of the railroad on the date of the accident and was a summary of those events. The Bruner report indicated that the train on which plaintiff was riding at the time of his injury was moving at six miles per hour at the time of impact. This was in conflict with other testimony presented that trimming should be done at four miles per hour or less. Plaintiff claims the Bruner report was admissible under the business records exception to the hearsay rule. Defendant replies that the trial court was correct to exclude the Bruner report because its author had since died, because it lacked probative value, and because its integrity was suspect. We believe the Bruner report contained information relevant to plaintiff\u2019s case and should have been allowed into evidence.\nWe recently considered a similar issue in Amos v. Norfolk & Western Ry. Co. (1989), 191 Ill. App. 3d 637, 548 N.E.2d 96. In Amos, another FELA case, the issue was whether the trial court erred in admitting into evidence under the business record\u2019s exception to the hearsay rule summaries of recorded statements of three railroad employees taken by a railroad claim agent approximately one month after the accident there in question. The summaries there related to events on the day of the plaintiff\u2019s injury and were not favorable to the railroad. In determining such summaries were admissible under Supreme Court Rule 236, the business records exception to the hearsay rule (134 Ill. 2d R. 236), we relied on Poltrock v. Chicago & North Western Transportation Co. (1986), 151 Ill. App. 3d 250, 502 N.E.2d 1200, which held that accident reports sought to be admitted against the party who prepares them are admissible because in such instances there is no reason to question their trustworthiness. (Amos, 191 Ill. App. 3d at 646, 548 N.E.2d at 101.) In addressing concerns about the integrity of the report, we stated in Amos:\n\u201cThat the summaries may contain the conclusions or opinions of the preparer do not disqualify them under the business records exception to the hearsay rule. Instead, that fact affects only the weight of the evidence, not its admissibility. (Birch v. Township of Drummer (1985), 139 Ill. App. 3d 397, 407, 487 N.E.2d 798, 806.) Nor do we find anything in Supreme Court Rule 236, which sets forth the business records exception to the hearsay rule, which disqualifies what the defendant refers to as double hearsay. (107 Ill. 2d R. 236.) Rule 236 expressly states that lack of personal knowledge by the maker of the record may affect its weight, but not its admissibility. Both the oral statements and the summaries were made by employees of defendant in the regular course of defendant\u2019s business.\u201d (Amos, 191 Ill. App. 3d at 646, 548 N.E.2d at 102.)\nIn the instant case, defendant stipulated to the foundation of the report before the trial court ruled on its admissibility. Even though the author of the report was deceased at the time of trial, we believe its integrity was sound. The report was prepared by an employee of the railroad on the same day of the accident and contains information against the railroad\u2019s interest. We believe the Bruner report was relevant to plaintiff\u2019s theory of the case and should have been admitted into evidence. This is especially true since the defense made at least two references, once during the examination of Floyd Cooper and once during his closing argument, to the fact that the evidence in this case showed the train was only moving at two miles per hour. The railroad\u2019s guidelines in this respect are that trimming should be done at no more than four miles per hour. We believe the exclusion of the Bruner report was erroneous and prejudicial to plaintiff.\nThe second contention raised by plaintiff is that the \u201cHeath\u201d document was relevant, inconsistent with defendant\u2019s position at trial, and should have been admitted. The Heath document was a series of letters between a union official and RE. Heath, then superintendent of the railroad, which explained elimination of the bull ring man. It was plaintiff\u2019s contention that the bull ring position was eliminated in retaliation for a safety complaint concerning another matter. Plaintiff allegedly sought to introduce the Heath document for the purpose of impeaching the testimony of Floyd Cooper as to the reason defendant eliminated the bull ring man. Defendant replies that Cooper was never questioned about why the bull ring position was eliminated, so plaintiff could not have been prejudiced by the trial court\u2019s refusal to admit the Heath document for that purpose. Moreover, defendant insists that the Heath document addresses safety with respect to cars running out of the west end of the yard, which has nothing to do with the alleged problems in this case; therefore, the Heath report is irrelevant. Defendant\u2019s position is that the bull ring man\u2019s purpose was not to tell the crew where gaps were on the east end or middle of the track but to adjust retarders at the end of the bowl to keep the cars from running out. We, however, agree with plaintiff that the Heath document was relevant and should have been admitted.\nIn June 1980, a union representative wrote to the then-superintendent of the railroad, RE. Smith, complaining that the retarders on the west end of the bull yard needed adjustment. Heath\u2019s response to the letter was as follows:\n\u201cThese retarders are adjusted for movement of cars out of the bowl, and this is the reason for having bull ring men on the west end. If you insist on making adjustment on retarders so that the bull ring man can stay in shanty all the time then it will be done and I can see no reason for having bull ring men on the west end which I can resolve at your request.\u201d\nPlaintiff and five other employees of the railroad testified that the trimming maneuver was safer when the bull ring man was present. All these witnesses were leery about shoving cars in the blind. Plaintiff\u2019s theory of the case was that the accident would not have occurred had the bull ring position been maintained by defendant. Nevertheless, defendant argued that the bull ring man was totally irrelevant to this lawsuit, and the trial court agreed. We have reviewed Floyd Cooper\u2019s testimony and believe that plaintiff\u2019s attempts to impeach Cooper with this document were appropriate. As plaintiff asserts, the overall theme of Cooper\u2019s testimony was that the trimming maneuver was safe. The Heath document advances plaintiff\u2019s theory that the trimming procedure was not safe because the bull ring man was removed and defendant\u2019s employees were expected to shove in the blind. The Heath document gives an explanation of why the bull ring position was eliminated, and, as plaintiff could argue from the tenor of the letter, safety was not a consideration in elimination of that position.\nFor evidence to be relevant, it must tend to prove a matter in controversy. (Bullard v. Barnes (1984), 102 Ill. 2d 505, 519, 468 N.E.2d 1228, 1235.) Plaintiff\u2019s complaint specifically alleged that defendant \u201cwas negligent in that it: (a) Failed to provide the Plaintiff with a reasonably safe place to work.\u201d That trimming was safer when a bull ring man was present was one of plaintiff\u2019s theories of this case. Since the elimination of the bull ring position and the reason given were matters in controversy, the Heath document was relevant and should have been admitted.\nPlaintiff has raised numerous other allegations of error. However, in light of our finding error in the foregoing matters, we need not address these allegations, nor do we need to address the issue of whether the verdict finding against plaintiff was against the manifest weight of the evidence. The cumulation of the errors we have discussed made it impossible for the jury to return a verdict free from prejudice. We therefore find that plaintiff is entitled to a new trial.\nIn light of our determination that a new trial is required, we will deal with another allegation of error, one that might otherwise recur. Specifically, it was error for the trial court to prohibit plaintiff\u2019s counsel from reading a previously approved definition instruction to the jury during closing argument.\nPrior to final arguments the court and counsel conducted an instruction conference at which all instructions to be given to the jury were determined. Immediately before argument, the court advised the jury as follows:\n\u201cAlso at this time [the lawyers] are fully aware of what the jury instructions in the case will be and they are allowed to refer to the instructions of law. They are allowed to tell you what they think the instructions will be. Again, should they in any way misstate these instructions you should disregard that.\u201d\nDuring plaintiff\u2019s argument, the following took place:\n\u201c[Plaintiff\u2019s attorney]: [W]hen you come down to a case like this it\u2019s necessary for the plaintiff to show some negligence on the part of the defendant, something the railroad did wrong, but it\u2019s a very different standard, [than] the standard that most of us would think, because here is what your honor is going to read to you in this case. He\u2019s going to tell you \u2018When I use the expression \u2014 \u2019\nTHE COURT: Well, let the Court stop you. You should not read from the Court\u2019s instructions. You may tell the jury what you think I will read, but please put the instruction down on the table and do not read it to the jury.\u201d\nTrial counsel are allowed to refer to instructions the court will give to the jury and, when not too lengthy or misleading, to read instructions or portions of them as part of closing argument. As noted in Sidorewicz v. Kostelny (1981), 102 Ill. App. 3d 851, 430 N.E.2d 377, counsel may state their belief as to the content of anticipated instructions in developing their closing argument, with the caveat that such remarks not be misleading. In Soderquist v. St. Charles Mall Associates, Ltd. (1988), 177 Ill. App. 3d 207, 532 N.E.2d 903, counsel used a poster board blowup of an instruction during closing argument. While our court considered this unduly emphasized the instruction, it found no prejudice and specifically did not differ with the trial court\u2019s comment that counsel could read portions of the same instruction to the jury if not too lengthy.\nIn the case at bar, plaintiff's counsel was attempting to read a very short definitional instruction previously approved by the court, to aid the jury in understanding his argument. This proposed action would clearly be in line with the authority cited above. Since verbatim, it would not be a misstatement, it would be short, and from the apparent context it would not be misleading or an undue emphasis. It seemed intended to foster jury understanding of his argument, a clearly permissible goal. In this context, the trial court\u2019s refusal to allow plaintiff\u2019s counsel to read the instruction was error.\nFor the foregoing reasons, the judgment of the circuit court of Madison County is hereby reversed, and the cause is remanded for a new trial.\nReversed and remanded.\nRARICK and WELCH, JJ., concur.", "type": "majority", "author": "JUSTICE GOLDENHERSH" } ], "attorneys": [ "Jon G. Carlson, of Edwardsville, for appellant.", "Thomas E. Jones and Leslie G. Offergeld, both of Walker & Williams, P.C., of Belleville, for appellee." ], "corrections": "", "head_matter": "ROGER FICKEN, Plaintiff-Appellant, v. ALTON AND SOUTHERN RAILWAY COMPANY, Defendant-Appellee.\nFifth District\nNo. 5\u201491\u20140513\nOpinion filed December 30, 1993.\nJon G. Carlson, of Edwardsville, for appellant.\nThomas E. Jones and Leslie G. Offergeld, both of Walker & Williams, P.C., of Belleville, for appellee." }, "file_name": "1047-01", "first_page_order": 1067, "last_page_order": 1086 }