Douglas Fuchs v. State of Illinois

OPINION

MCGLYNN, J.

This claim arises out of an automobile collision at an intersection between Claimant, Douglas Fuchs, and Respondent’s employee, Mark Reising, on August 7, 2011. The parties presented evidence at a final hearing and submitted closing arguments. Subsequent to the hearing, Claimant’s widow notified the Clerk of Douglas Fuchs’ death. Claimant’s widow has filed a Verified Motion to Appoint Special Representative and Substitute Special Representative as Party Plaintiff. The widow will have to provide this Court with an Order from a Probate Court with jurisdiction appointing a Personal Representative of the Estate of Douglas Fuchs, Deceased.

Douglas Fuchs was traveling east on Illinois 138 when his vehicle collided with Reising’s vehicle which was traveling north on Old Route 66. At the intersection, Reising’s direction of travel was governed by a stop sign. Fuchs had the right of way with no stop sign.

Reising testified that at the time of the accident he was “on the job” for the Department of Transportation. Reising testified he stopped for the stop sign at the intersection and looked in both directions. Reising did not see Fuchs’ vehicle, so he entered the intersection at a low rate of speed. He did not see Fuchs’ vehicle until both vehicles were in the intersection. Reising braked but collided with Fuchs.

Reising admitted that Fuchs did not have a stop sign. Reising admitted that he was required to yield to the cross traffic, and that he had failed to yield to Fuchs. Reising had no explanation as to why he did not see Fuchs’ vehicle while stopped at the stop sign and has no estimate of Fuchs’ speed. Reising denied that he used a phone while driving before the collision. Reising denied that the impact was severe.

Fuchs testified that he knew north/south traffic was governed by a stop sign. He observed traffic from the north and proceeded into the intersection. At that point he realized Reising was not going to stop and they collided. Fuchs testified that Reising’s vehicle struck Fuchs’ vehicle in the rear door and quarter panel, and Fuchs’ vehicle “spun around over 180 degrees.” Reising denied that the Fuchs’ vehicle “spun around over 180 degrees.”

In Respondent’s Closing Brief, Respondent admitted: “Mark Reising had a duty to yield the right of way to Claimant and that Mark Reising breached said duty…” “Respondent [*176] acknowledges that Reising had a duty and breached that duty when he struck Claimant causing the accident.”

Respondent argues that Fuchs was guilty of contributory negligence for failing to reduce his speed and should have changed lanes. Fuchs testified that he saw Reising coming from his left but Fuchs expected Reising to stop. He did not realize Reising was not going to stop until they were both in the intersection. Fuchs testified he did not have time to apply his brakes.

Claimant has sustained his burden that Respondent’s agent was negligent, and Reising’s failure to yield was the proximate cause of the motor vehicle collision. Further, Respondent has not demonstrated any contributory negligence on the part of the Claimant.

CAUSATION

Respondent argues: “The plaintiff must establish with ‘reasonable certainty’ that the defendant’s acts or omissions caused his injury.” Keating v. 68th and Paxton, L.L.C., 401 Ill.App.3d 456 (1st Dist. 2010). Respondent argues: “In the instant case, the accident did not cause Claimant’s injury as the injury is merely his pre-existing condition.” Respondent argues that the evidence at the hearing establishes that, prior to the accident, Claimant suffered from substantial chronic back problems and that after the accident, Claimant did not suffer any additional injuries. Beyond Claimant’s own subjective complaints, there is no evidence the accident caused any further substantial injury to Claimant beyond the prior back problems he was already suffering. Claimant cannot establish that the accident was the cause-in-fact of any injuries. Respondent argues, therefore, Claimant cannot meet his burden of establishing proximate cause. Therefore, Claimant’s claim should be denied.

There is significant evidence in the record demonstrating that Claimant suffered back problems and had extensive medical treatment prior to the accident, including treatment by Dr. Phillip Johnson. The record also shows that Claimant had a post-accident surgery performed by Dr. Matthew Gornet, an orthopedic surgeon. Claimant acknowledged that his back problems dated back to 2006 when after vomiting, he experienced back pain and sought treatment. Claimant acknowledged that in April of 2009, he was prescribed Tramadol, an opioid narcotic, one tablet every four to six hours for back pain. He acknowledged that in October of 2009, he was prescribed Norco (Vicodin, Hydrocodone), another opioid narcotic for back pain, and Soma.

Dr. Johnson’s records of 10/24/2009 include in pertinent part:

“The patient is a 50-year-old male who presents with a complaint of lower

back pain. The onset of the pain has been gradual and has been occurring in a

persistent pattern of days (2). The course has been increasing. The pain is

characterized as shooting. The pain is described as being located in the lower

back. The pain radiates to the left thigh. There are no precipitating factors.

The symptoms are aggravated by prolonged standing and prolonged sitting.

The symptoms have no relieving factors. The pain has been associated with

back stiffness. Note for “Lower back pain”; Radiates into the left leg to about [*177]

the knee. He had back pain several months ago, when x-rays were done and it

showed degenerative changes.”

Dr. Johnson prescribed an MRI. The report of 11/04/2009 includes the following in part:

“DOS: 11/04/2009. Indication: Back spasms and left leg pain. Findings: There

is straightening of the lumbar lordosis. Multilevel Schmorl’s nodes are seen

along with multiple vertebral end plates throughout the lumbar spine. There is

prominent disk degeneration seen throughout the lumbar spine with disc

bulges and superimposed protrusions identified most prominent at L5-S1.

Mild to moderate facet hypertrophic changes are also seen in the mid and

lower lumbar levels, accentuated by ligamentum flavum hypertrophy.”

At the level where the surgery was performed, the report notes:

“L4-5: There is a diffuse disk bulge as well as bilateral moderate facet and

mild ligamentum flavum hypertrophic changes which flatten the central canal

and contribute to mild to moderate bilateral foraminal narrowing.”

At the level below the operative site and related to radiculopathy, the radiologist further finds:

“L5-S1: There is a diffuse disk bulge and superimposed midline large

protrusion which contribute to moderate central stenosis and moderate

bilateral foraminal narrowing. Flattening of both lateral recesses and

foraminal narrowing is accentuated by moderate facet and ligamentum flavum

hypertrophic changes. Small degenerative synovial cysts are seen along the

left facet joint.”

“Multilevel degenerative changes as above, worse at L5-S1 where there is a

large disk protrusion superimposed upon a diffuse disk bulge with mild

bilateral facet ligamentum flavum hypertrophy contributing to moderate

bilateral foraminal narrowing and central canal stenosis.”

Claimant was referred for a lumbar epidural steroid injection, which he received on November 17, 2009. In 2010 he returned to his physician complaining of back pain and was still on Norco and Tramadol, one every four to six hours. He acknowledged that when he returned in May of 2010 with continuing complaints of back pain, he was still on Tramadol and Norco. In August of 2010, when he returned for continuing back pain, he was prescribed Norco. In January of 2011 he returned to Dr. Johnson for back pain and continued opioid medications Norco and Tramadol.

Claimant admitted that he began receiving epidural steroid injections for back pain in January, March, May and July of 2011. He acknowledged that he continued throughout that time using the opioid narcotics for back pain.

[*178] On July 28, 2011, 11 days before the accident, he presented for another epidural injection with a diagnosis of Lumbar Radiculopathy with the following history: “The patient is a 51-yearold male with a history of low back pain with radiation into both legs, particularly on the right, who has had a favorable response to epidural steroid injections in the past, now presenting with recurrent pain.”

Claimant eventually was referred to Dr. Gornet, who performed an L4-5 fusion which by all accounts was a success.

The Claimant’s right to damages resulting from the occurrence, however may not be denied nor limited because any injury resulted from an aggravation of a pre-existing condition. IPI 30.21; Balestri v. Terminal Freight Co-Op Association, 76 Ill.2d 451 (1979). We note that the aggravation of a pre-existing condition is a factor, but not an element of damages. Luye v. Schappel, 348 Ill.App.3d 767, 773 (1st Dist. 2004). Tiner v. State, No. 2009-CC-2957 at page 8 (November 17, 2017). A plaintiff can only recover for that part of his suffering that proximately results from defendant’s negligence and was thereby activated, aggravated or accelerated. Gruidl v. Schell, 166 Ill.App.3d 276, 282 (1st Dist. 1988). Tiner, supra. It is with this backdrop that we assess the damages in the case at bar.

Respondent argues that neither Dr. Johnson nor Dr. Gornet could qualify the specific extent of exacerbation except by Claimant’s subjective complaints; therefore, Claimant has not met his burden of establishing that part of his suffering was activated, aggravated or accelerated by this accident. Nevertheless, the Claimant and his family testified that his enjoyment of life was reduced by symptoms attributed to the accident.

Dr. Johnson testified that to a reasonable degree of medical certainty, Fuchs’ increased back pain was secondary to the accident. Dr. Johnson opined that Fuchs’ back surgery was related to the accident. Dr. Johnson admitted that there is no way to quantify how much Fuchs’ back pain increased after the accident except through Fuchs’ subjective complaint. Dr. Johnson did testify that Fuchs related a change in his ability to walk and tolerate activities after the accident. Dr. Johnson admitted that in notes prior to the accident, Dr. Johnson expressed that if Fuchs’ pain didn’t improve, surgical evaluation may be necessary. Dr. Johnson testified that while surgery was an option before the accident, he did not refer Fuchs for surgical consultation until after the accident. Dr. Johnson also testified that prior epidural steroid injections administered before the accident improved Fuchs’ pain.

Dr. Gornet performed the surgery. He testified that “I felt that his symptoms at least in the level of magnitude, severity and their lack of response for treatment, were all causally connected to the motor vehicle accident…” Dr. Gornet testified that Fuchs’ requirement for a spinal fusion at L 4-5 was “directly causally connected to his accident of August 4th of 2011.”

Accordingly, Claimant has established through uncontroverted medical testimony that his preexisting back problems were aggravated by the accident and resulted in the surgery.

[*179] DAMAGES

Through a combination of live testimony and admitted deposition testimony, Claimant introduced testimony from himself, his wife (Diane Fuchs), his daughter (Heather Fuchs), his daughter-in-law (Leah Fuchs), and his co-worker (Bob Kunz). Collectively, they testified about Claimant’s condition before the accident, after the collision, and after the surgery to present.

By all accounts, Claimant was an active man. He liked manual labor and toiling in his yard. He liked to golf and was physically active. He took trips to the zoo or the park with his wife and their grandchildren. Dining out and playing games around the kitchen table were a big part of family life. Claimant’s in-laws resided with him and he helped in their care, which required him to physically help move them and get them out of bed.

Collectively, the witnesses testified that since the collision on August 4, 2011, until the surgery on May 8, 2013, Claimant could barely move. Ironically, inaction was just as painful as activity. Claimant testified during this period anything - sitting, standing, bending or lifting - caused tremendous pain. He couldn’t work outside in the yard or help around the house. He couldn’t golf. Claimant testified that the act of sitting was so painful that he could no longer go out to eat or sit at the kitchen table to play cards. Claimant testified he would eat dinner in his recliner in the living room by himself. He would also sleep in that recliner every night. Claimant and his wife ceased having sexual relations. He could no longer play with his grandchildren. In fact, in medical records, Fuchs explained to a physician that the reason he sought treatment was so that he could engage with his grandchildren. He could not help his in-laws. His pain was so severe that he was taking an extremely large amount of narcotic pain medication.

Since the surgery on May 8, 2013, Claimant’s condition has improved. Claimant testified he is still limited and cannot participate in activities as he had done before. He remains unable to golf, go to movies, or go to church. Long bouts of standing, sitting or movement still cause pain.

The Claimant died on March 19, 2017. Therefore, the damages are calculated from the date of injury to the date of his death.

In light of all the considerations, the Court awards Claimant $125,000.00 for pain and suffering and $100,000.00 for loss of a normal life.

Claims for the recovery of lost wages must be limited to such loss as is reasonably certain to occur and cannot be based on testimony which is merely speculative, conjecture, or uncertain. Turner v. Chicago Transit Authority, 122 Ill.App.3d 419, 428-429 (1st Dist. 1984). Further, in consideration of the Court’s discretion in allowing set-offs, it is policy of the Court to allow setoffs pursuant to Section 26 of the Court of Claims Act when monies received are from the State. Makkay v. University of Illinois, 61 Ill. Ct. Cl. 225, 232 (2006).

As to lost wages, Claimant requests compensation for lost wages in the amount of $111,957.71. Respondent argues that Claimant’s evidence as to wages, promotions, and increases are unsupported by anything other than Claimant’s own testimony. Respondent notes [*180] that no corroborating documentation or filed tax returns have been provided. Respondent further notes that between 2012 and 2013, Claimant received $39,636.00 in disability payments.

The Court does find Respondent’s arguments concerning lost wages to be persuasive in that Claimant’s claim is derived primarily from his own testimony, without much in the way of corroborating documentation. Further, the calculations offered by Claimant concerning earnings increases were rooted in speculation and anticipated success. Finally, the Court agrees that Respondent would be entitled to a set-off for the disability payments already provided to Claimant between 2012 and 2013. It would be unjust to demand that Respondent again convey a benefit it has already conveyed in relation to this incident. The Court denies the claim for lost wages.

As to Claimant’s medical bills, Claimant introduced evidence that he has incurred medical bills totaling $349,186.08. Respondent admitted that all medical bills were fair and reasonable charges for the services performed, Claimant testified that the bills were paid, and Dr. Gornet and Dr. Johnson provided testimony that the bills were related to the accident. The Court awards medical bills in the amount of $349,186.08.

Accordingly the Court awards a total of $574,186.08 to the Estate of Douglas Fuchs, Deceased.

IT IS SO ORDERED.