{ "id": 4259086, "name": "GREGORY FERRO, Plaintiff-Appellant, v. LORRAINE GRIFFITHS, Defendant-Appellee; GREGORY FERRO, Plaintiff-Appellant, v. LORRAINE GRIFFITHS, Defendant-Appellee", "name_abbreviation": "Ferro v. Griffiths", "decision_date": "2005-10-05", "docket_number": "Nos. 3\u201403\u20140943, 3\u201404\u20140007 cons.", "first_page": "738", "last_page": "745", "citations": [ { "type": "official", "cite": "361 Ill. App. 3d 738" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "782 N.E.2d 803", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "336 Ill. App. 3d 92", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1599293 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/ill-app-3d/336/0092-01" ] }, { "cite": "733 N.E.2d 1275", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "192 Ill. 2d 49", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 453258 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/ill-2d/192/0049-01" ] }, { "cite": "702 N.E.2d 303", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "309" }, { "page": "309" } ], "opinion_index": 0 }, { "cite": "299 Ill. App. 3d 964", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 221528 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "971" }, { "page": "971" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/299/0964-01" ] }, { "cite": "721 N.E.2d 715", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "308 Ill. App. 3d 735", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 261313 ], "year": 1999, "opinion_index": 0, "case_paths": [ "/ill-app-3d/308/0735-01" ] }, { "cite": "794 N.E.2d 875", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 2003, "pin_cites": [ { "page": "879" }, { "page": "881" } ], "opinion_index": 0 }, { "cite": "342 Ill. App. 3d 530", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3474552 ], "weight": 4, "year": 2003, "pin_cites": [ { "page": "535" }, { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/342/0530-01" ] }, { "cite": "770 A.2d 36", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 11098417, 11098323 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "40" }, { "page": "41" } ], "opinion_index": 1, "case_paths": [ "/a2d/770/0036-02", "/a2d/770/0036-01" ] }, { "cite": "342 Ill. App. 3d 530", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3474552 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "537-38" }, { "page": "538" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/342/0530-01" ] } ], "analysis": { "cardinality": 806, "char_count": 18242, "ocr_confidence": 0.787, "pagerank": { "raw": 1.1296444887030016e-07, "percentile": 0.57548625421791 }, "sha256": "cadcd59cc8b150d96ea5fe04f46fb93a236a8bd37f57298fb5bfb543a4404c65", "simhash": "1:8bf684a24cc5ca52", "word_count": 2993 }, "last_updated": "2023-07-14T19:43:20.596028+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GREGORY FERRO, Plaintiff-Appellant, v. LORRAINE GRIFFITHS, Defendant-Appellee.\u2014GREGORY FERRO, Plaintiff-Appellant, v. LORRAINE GRIFFITHS, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE LYTTON\ndelivered the opinion of the court:\nPlaintiff Gregory Ferro sued defendant Lorraine Griffiths for injuries he sustained when the vehicle driven by Griffiths struck the rear bumper of the van in which Ferro was a passenger. The jury returned a verdict in favor of Griffiths; the trial court subsequently granted Griffiths\u2019 postjudgment request for fees and costs. On appeal from the verdict (No. 3 \u2014 03\u20140943), Ferro claims that the trial court made several errors during witness testimony, failed to direct a verdict or enter judgment notwithstanding the verdict in his favor, failed to exclude jurors who admitted that they were against lawsuits, and improperly questioned a witness from the bench. In a separately filed appeal (No. 3 \u2014 04\u20140007), Ferro also claims that the court erred in entering sanctions for fees and costs when Griffiths\u2019 motion only requested costs. We affirm the judgment entered in favor of Griffiths in case No. 3 \u2014 03\u20140943 and vacate the sanction order in case No. 3 \u2014 04\u20140007.\nOn January 4, 1999, Ferro underwent cardiac surgery during which a number of stents were placed in his coronary artery. Following surgery, Ferro developed a heart attack rupture. Three days later, cardiovascular surgeon Dr. Ramesh Veeragandham performed open heart surgery to investigate Ferro\u2019s condition. He found fluid around the heart, a condition called pericardial effusion. The doctor drained the fluid, and Ferro was discharged on January 15, 1999. At the time of discharge, Ferro had chest pain at the incision site but did not have internal chest pain. He also required oxygen and was taking Coumadin to prevent clotting. He planned to spend several weeks recuperating at the home of his cousin, Darlene Hennis.\nThat afternoon, Hennis drove her van to the hospital to take Ferro home. An attendant escorted Ferro out of the hospital in a wheelchair and put him in the front passenger seat of the van. The attendant stood the oxygen tank on the floor of the van between Ferro\u2019s feet and legs. The top of the tank was less than one foot from Ferro\u2019s chest. While traveling home, Hennis stopped for a traffic light and was struck from behind by Griffiths\u2019 vehicle. Ferro described the impact as \u201cvery heavy.\u201d According to Ferro, the tank handle on the oxygen regulator hit him in the chest. He immediately felt pain and pressure inside his chest.\nAn ambulance transported Ferro back to the hospital. When he arrived at the emergency room, the pain in his chest was building. X rays were taken, which showed an enlargement of the heart. Dr. Sennett, a radiologist, reviewed the X rays and determined that Ferro had a pericardial effusion. The next day, Dr. Veeragandham opened the lower part of the previous incision in Ferro\u2019s chest and drained approximately 600 cc of blood-stained fluid from the pericardial sac.\nFerro was released and later filed suit against Griffiths for the injuries caused by the accident. Prior to the trial, Ferro sought an order barring Griffiths from presenting any photographs of either vehicle to the jury or suggesting a relationship between the severity of the collision and the severity of injury to plaintiff. Ferro argued that although the pictures showed minor damage to the vehicles, he was \u201cparticularly susceptible\u201d to injury because of his preexisting medical condition. At the hearing, Ferro\u2019s counsel argued that his injuries were aggravated because of the medical procedure that had just been performed. The trial court denied the motion, noting that plaintiffs condition did not preclude the relevancy of the photographs.\nAt the trial, Dr. Kevin Dolehide testified that he was Ferro\u2019s primary treating physician upon his readmission to the hospital. When Ferro arrived, he complained of chest pain and shortness of breath. Dr. Dolehide noted that Ferro did not have these problems when he was discharged a few hours earlier. Tests indicated that there was bleeding around Ferro\u2019s heart which was of sufficient quantity to put pressure on his heart and diminish the outflow of blood from the heart itself, a condition called tamponade. Dr. Veeragandham was consulted and diagnosed pericardial effusion with evidence of tamponade. Dr. Dolehide believed that the blunt trauma from the force of the oxygen tank caused the pericardial effusion because nothing else in the plaintiffs history would indicate any other cause. He admitted that a person can develop a pericardial effusion from surgery but stated that he would have to defer to a cardiologist as to how long after surgery a patient could develop such a condition. He also testified that the use of Coumadin could help develop fluid around the heart, even without trauma.\nThe trial judge then asked a few brief questions regarding the level at which a pericardial effusion \u201cturns into a tamponade.\u201d Dr. Dolehide clarified that a pericardial tamponade is caused by excess fluid around the heart. The accumulation of fluid causes the muscles of the heart to restrict. It is the restriction of the heart that leads to the diagnosis of a tamponade. The judge thanked the doctor and dismissed him from the stand.\nDr. Charlene Sennett testified that she reviewed both Ferro\u2019s X rays of the chest cavity and the CT scan of his thorax. On direct examination, Dr. Sennett testified that she did not know what caused the pericardial effusion in this case. She stated that she could not tell counsel \u201cwhy this particular person had a pericardial effusion.\u201d The effusion could have been caused by recent open heart surgery, myocardial infarction or several other reasons.\nCardiologist Dr. David Cusick reviewed Ferro\u2019s CT scan with Dr. Sennett and noted that there was a moderate pericardial effusion present. An ultrasound of the heart revealed that Ferro was experiencing severe reduction in the squeezing function of the heart and that there was a large pericardial effusion present. Dr. Cusick did not note any bruising to Ferro\u2019s chest beyond that expected from the recent sternal surgery. Plaintiff\u2019s counsel then asked Dr. Cusick, \u201cYou did not formulate any opinions as to the causation of Mr. Ferro\u2019s pericardial effusion, did you?\u201d Dr. Cusick responded, \u201cI don\u2019t believe I did write down a specific cause of the effusion in my notes.\u201d\nDuring cross-examination, Dr. Cusick explained that many things can cause a pericardial effusion, including various types of infections, heart disease and trauma. People who have had heart surgery can develop a pericardial effusion. He could not say to a reasonable degree of medical certainty that the car accident was the cause of Ferro\u2019s pericardial effusion. Dr. Cusick stated that, if the accident was not considered, the two likely causes of the pericardial effusion would be his recent heart attack and his cardiac surgery. Ferro\u2019s attorney did not object to defense counsel\u2019s questions. On redirect examination, Dr. Cusick admitted that the accident could have caused the pericardial effusion.\nOn direct examination, Dr. Veeragandham testified that about 50 cc of pericardial fluid are normally present around an adult male\u2019s heart. During Ferro\u2019s surgery on January 7, 1999, Dr. Veeragandham removed approximately 400 cc of clear serous fluid. The blood-stained fluid he drained from Ferro\u2019s heart after the accident was different from the fluid he drained during the January 7 surgery. He testified that it was possible that the fluid accumulated between the first surgery and the surgery on January 16.\nOn cross-examination, Dr. Veeragandham indicated that fluid could accumulate around the heart without blunt trauma to the chest. The same process that started the original accumulation of fluid can continue. The anticoagulant therapy that plaintiff received could have also caused bleeding in his pericardium. Dr. Veeragandham testified that he could not say the reason for the recurrence of the effusion. When asked whether he held an opinion as to how the pericardial effusion was caused, Dr. Veeragandham stated, \u201cI do not have any opinion.\u201d Plaintiff\u2019s objection to his answer was overruled.\nIn closing argument, defense counsel argued that \u201cthree of the four doctors determined that there is not enough evidence for them to determine that this accident caused the injuries complained of here *** three out of four doctors can\u2019t be wrong.\u201d Plaintiff\u2019s counsel did not object to defense counsel\u2019s comments.\nThe trial court entered a directed finding on the issue of negligence. The jury returned a verdict in favor of Griffiths on the issue of liability. Ferro\u2019s posttrial motion for judgment notwithstanding the verdict or, alternatively, a new trial was denied.\nI\nAdmission of Photographs\nFerro claims that it was improper and highly prejudicial to allow defendant to offer into evidence photographs that showed little damage to either vehicle. He argues that expert testimony is required to show a correlation between lack of damage to the vehicles and injury to plaintiff, citing the recent case of DiCosola v. Bowman, 342 Ill. App. 3d 530, 794 N.E.2d 875 (2003).\nIt is within the discretion of the trial court to decide whether evidence is relevant and admissible. City of Rockford v. Elliott, 308 Ill. App. 3d 735, 721 N.E.2d 715 (1999). \u201cRelevant evidence\u201d is that which has \u201c \u2018any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.\u2019 \u201d DiCosola, 342 Ill. App. 3d at 535, 794 N.E.2d at 879, quoting Wojcik v. City of Chicago, 299 Ill. App. 3d 964, 971, 702 N.E.2d 303, 309 (1998).\nWhen the trial court makes a decision to admit pictures, it has to determine whether the photographs make the resulting injury to the plaintiff more or less probable. The court must determine whether the nature of the damage to the vehicles and the injury to the plaintiff are such that a lay person can readily assess their relationship, if any, without expert interpretation. See Voykin v. Estate of DeBoer, 192 Ill. 2d 49, 733 N.E.2d 1275 (2000). A reviewing court will not disturb the trial court\u2019s decision absent a clear abuse of that discretion. DiCosola, 342 Ill. App. 3d 530, 794 N.E.2d 875. An abuse of discretion occurs only where no reasonable person would take the position adopted by the trial court. Taxman v. First Rlinois Bank of Evanston, 336 Ill. App. 3d 92, 782 N.E.2d 803 (2002).\nIn DiCosola, the trial court found that, absent expert testimony, the defendant could not admit photographs of the damage to the vehicles merely to argue that there was a relationship between the amount of property damage and the nature and extent of plaintiff\u2019s injury. Based on that decision, the court granted plaintiffs motion in limine to exclude the photographs of the vehicles.\nOn review, the appellate court noted that the decision to admit the photographs was within the trial court\u2019s discretion. The court held that the trial judge did not abuse his discretion in requiring expert testimony to relate the extent of the vehicular damage to the extent of plaintiff\u2019s injuries. The court rejected both the notion that such pictures must always be allowed or, on the other hand, that expert testimony is always necessary for the photographs to be admissible. DiCosola, 342 Ill. App. 3d at 537, 794 N.E.2d at 881.\nWe agree with DiCosola. In any given case, expert testimony may be required to show a proper correlation between the extent of the vehicular damage and the nature and extent of plaintiffs injury. However, we refuse to adopt a rigid rule that proscribes the admission of pictures without an expert. The critical question in admitting these photographs is whether the jury can properly relate the vehicular damage depicted in the pictures to the injury without the aid of an expert. This is an evidentiary question that the trial judge must resolve.\nWhile this case is close, we cannot say that the trial court abused its discretion by admitting the photographs without expert testimony. The pictures were introduced to show why minimal damage to plaintiffs vehicle was relevant to the nature and extent of plaintiffs injuries. Ferro testified that the impact to the van was \u201cvery heavy,\u201d causing his body to move back and forth and hit the oxygen tank. Dr. Cusick testified that Ferro did not have any additional bruising to his chest after the accident. The photographs depicted the physical damage to both vehicles as a result of the accident. Under these facts, the trial judge could properly have found that the pictures, by themselves, were relevant to prove the matter at issue was \u201cmore or less probable.\u201d Wojcik, 299 Ill. App. 3d at 971, 702 N.E.2d at 309.\nII through VII\nThe material in these sections is nonpublishable under Supreme Court Rule 23.\nCONCLUSION\nThe judgment of the circuit court of Will County entered in favor of Griffiths is affirmed. The sanction order awarding costs and fees is vacated.\nNo. 3 \u2014 03\u20140943, Affirmed.\nNo. 3 \u2014 04\u20140007, Vacated.\nMcDADE, J., concurs.", "type": "majority", "author": "JUSTICE LYTTON" }, { "text": "JUSTICE HOLDRIDGE,\ndissenting:\nI would find that the trial court abused its discretion in allowing the defendant to offer into evidence photographs of the damage to the vehicles without expert testimony to show a correlation between lack of damage to the vehicles and injury to the plaintiff. As the majority notes, whether to admit photographs is within the discretion of the trial court. DiCosola v. Bowman, 342 Ill. App. 3d 530 (2003). I agree with the majority\u2019s finding that there is no rigid rule that proscribes the admission of photographs without an expert. However, I am also mindful of the DiCosola court\u2019s concern that a jury not be allowed to engage in \u201cunguided speculation\u201d when invited by a party to \u201cinfer\u201d that there is a correlation between the extent of vehicular damage and the extent of personal injuries. The DiCosola court, based upon its own research, noted this concern articulated by the Delaware Supreme Court:\n\u201cIn Davis v. Maute, 770 A.2d 36 (Del. 2001), the Delaware Supreme Court held that a party in a vehicular personal injury case generally may not argue that there is a correlation between the extent of vehicular damage and the extent of a person\u2019s injury caused by the accident in the absence of expert testimony on that issue and may not rely on photographs of the vehicle(s) involved to indirectly accomplish the same purpose. The Davis court decided that \u2018[ajbsent such testimony, any inference by the jury that minimal damage to the plaintiffs car translates into minimal personal injuries to the plaintiff would necessarily amount to unguided speculation.\u2019 Davis, 770 A.2d at 40.\u201d DiCosola, 342 Ill. App. 3d at 537-38.\nHere, the defendant sought admission of the photographs in order to invite the jury to infer from lack of damage to the vehicles that the impact was too light to cause the plaintiffs injuries. In closing argument, defense counsel addressed the jury as follows:\n\u201cBut look at the impact to the car. You guys have \u2014 half of you have seen accidents like this every day. Minor fender benders, the ones that are in parking lots where it hits somebody, particularly a small car and a big van, it is not going to move it \u2014 Not only pictures show a minor impact. *** So what physically in your own common sense could possibly ram that [tank] into his chest.\u201d\nDefense counsel asked the jury to engage in exactly the kind of \u201cunguided speculation\u201d against which the DiCosola court warned.\nI disagree with the majority\u2019s characterization of this question as \u201cclose.\u201d The only reason for the admission of the photographs was to support the argument that lack of damage to the vehicles supports an inference that the impact did not cause the plaintiffs physical injuries. As the DiCosola court points out, without expert testimony to establish such an inference, the jury would be left to engage in unguided speculation.\nLikewise, it was also improper to admit the photographs to rebut the plaintiffs testimony that the impact of the collision was \u201cvery heavy.\u201d Again, the DiCosola court addressed the same contention:\n\u201cIn addition, the Davis court addressed the argument, similar to that presented by defendant to the trial court in the instant case, that the photographs of the minimal damage to the plaintiffs vehicle were admissible to support a commonsense inference that the plaintiffs complaints were not credible. The court held that counsel could not rely on photographs of the vehicle(s) involved to accomplish indirectly what the court had already determined was improper argument. Davis, 770 A.2d at 41.\u201d DiCosola, 342 Ill. App. 3d at 538.\nI agree. The defendant should not be allowed to invite unguided speculation under the guise of attacking the plaintiffs credibility.\nI see no relevance of the photographs in the instant matter other than to advance the theory that the light damage to the vehicles translates into no injury to the plaintiff. Such an argument could only be made by way of expert testimony as to the effect of degrees of impact upon the human body.\nI would find that the trial court abused its discretion in allowing the photographs into evidence and allowing the argument therefrom that the plaintiffs injuries could not have been caused by the impact from the collision. Because the question of causation of the plaintiffs injuries was the essential element in conflict, I would find that the photographs and the argument therefrom worked a prejudice upon the plaintiff. I would therefore reverse the judgment of the circuit court and remand the matter for a new trial.\nAs I would remand on this issue, I would not reach the other issues raised in this appeal.", "type": "dissent", "author": "JUSTICE HOLDRIDGE," } ], "attorneys": [ "David C. Hurst (argued), of Bruggeman, Hurst & Associates, Ltd., of New Lenox, for appellant.", "Michael L. Resis and L. Marie Holley-Lucas, both of O\u2019Hagan, Smith & Amundsen, L.L.C., of Chicago, Ellen L. Green (argued), of O\u2019Hagan, Smith & Amundsen, L.L.C., of Wheaton, and Byron D. Knight, of Knight, Hoppe, Famming & Knight, of Des Plaines, for appellee." ], "corrections": "", "head_matter": "GREGORY FERRO, Plaintiff-Appellant, v. LORRAINE GRIFFITHS, Defendant-Appellee.\u2014GREGORY FERRO, Plaintiff-Appellant, v. LORRAINE GRIFFITHS, Defendant-Appellee.\nThird District\nNos. 3\u201403\u20140943, 3\u201404\u20140007 cons.\nOpinion filed October 5, 2005.\nHOLDRIDGE, J., dissenting.\nDavid C. Hurst (argued), of Bruggeman, Hurst & Associates, Ltd., of New Lenox, for appellant.\nMichael L. Resis and L. Marie Holley-Lucas, both of O\u2019Hagan, Smith & Amundsen, L.L.C., of Chicago, Ellen L. Green (argued), of O\u2019Hagan, Smith & Amundsen, L.L.C., of Wheaton, and Byron D. Knight, of Knight, Hoppe, Famming & Knight, of Des Plaines, for appellee." }, "file_name": "0738-01", "first_page_order": 756, "last_page_order": 763 }