Reardon v. Bonutti Orthopaedic Services9/29/2000
Marc Reardon (plaintiff) appeals the February 27, 1998, judgment entered by the Effingham County circuit court. The trial court entered the judgment following a jury verdict against plaintiff and for Bonutti Orthopaedic Services, Ltd., and Timothy Gray, M.D. On appeal, plaintiff claims that the trial court erred in refusing to grant plaintiff a new trial where the jury's verdict was contrary to the manifest weight of the evidence. For the reasons that follow, the judgment is vacated and the cause is remanded for a new trial.
On July 26, 1995, plaintiff filed a four-count complaint against Bonutti Orthopaedic Services, Ltd., St. Anthony's Memorial Hospital in Effingham (St. Anthony's), Peter Bonutti, M.D., and Timothy Gray, M.D. (defendant). St. Anthony's filed an answer on August 21, 1995, and the remaining defendants filed their answers on September 22, 1995. On November 12, 1996, plaintiff filed a voluntary motion to dismiss the claim against Dr. Bonutti, and the trial court granted the motion on December 6, 1996. Plaintiff filed an amended four-count complaint. Drs. Bonutti and Gray and Bonutti Orthopaedic Services filed their answers on January 2, 1997, and St. Anthony's filed its answer on January 9, 1997. On April 11, 1997, St. Anthony's filed a motion for summary judgment as to counts II and III. Plaintiff responded by filing a motion to voluntarily dismiss, without prejudice, counts II and III on May 1, 1997, which the trial court granted. On February 24 through 26, 1998, a trial was held against Dr. Gray and Bonutti Orthopaedic Services, Ltd. The jury returned a verdict in favor of those defendants and against plaintiff. The trial court entered the judgment on February 27, 1998. After the trial, plaintiff obtained new counsel, and on March 27, 1998, the trial court granted plaintiff an extension of time to file his posttrial motion so his new counsel could review the proceedings. On May 18, 1998, the parties agreed to grant plaintiff an additional two-week extension to file his posttrial motion. An extension was again granted on May 29, 1998, until June 30, 1998, because plaintiff made a motion to interview the jurors. On July 1, 1998, the trial court granted plaintiff's motion to interview the jurors and gave an additional 30-day extension. On July 30, 1998, the trial court granted one last extension to plaintiff until August 6, 1998. Plaintiff filed his posttrial motion on August 6, 1998, requesting a judgment notwithstanding the verdict, or in the alternative, to grant a new trial because the jury verdict was against the manifest weight of the evidence. The defendants responded on August 24, 1998. A hearing was held on October 2, 1998, and the trial court denied plaintiff's posttrial motion on the same day. Plaintiff filed a timely notice of appeal.
I. FACTS
On January 10, 1995, plaintiff suffered multiple fractures to his right foot. Plaintiff's most severe fracture was of the calcaneus (heel) bone. The fracture was described by all the physicians and nurses who examined plaintiff as highly comminuted, or broken into multiple pieces. The calcaneus does not break along lines as other bones; rather, it shatters when suffering a trauma. In this case, the heel bone was shattered and smashed up into the foot. Testimony from all parties indicated that even if the doctors could fuse the pieces back together, plaintiff would suffer stiffness and a lack of ability to engage in high-intensity activities at the level that he had before the trauma.
At the trial, plaintiff called the nurses who attended to him at St. Anthony's. The two nurses whose testimony was of note were Deborah Niemerg and Julie Werner. Nurse Niemerg worked the 7 a.m.-to-3 p.m. shift on January 1
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