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Moss v. Amira3/24/2005
This case arises from a traffic accident that occurred between the plaintiff, Richard Moss, and the defendant, Jennifer Amira. Following trial, a jury verdict was returned in favor of Moss in the amount of $12,929.50 and a judgment was thereon entered against Amira.
On appeal, Moss argues that: (1) the trial court erred when it denied his motion in limine and subsequent posttrial motion to bar the testimony of expert witness Dr. Richard Moser, due to defense counsel's alleged violation of Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581 (1986), (2) the trial court erred when it denied his motion in limine and subsequent posttrial motion to bar portions of Dr. Moser's evidence deposition, and (3) the jury verdict was against the manifest weight of the evidence.
On cross-appeal, Amira argues that the trial court erred when it denied her posttrial motion for a setoff.
For the reasons that follow, we find that the trial court erred when it denied Moss' posttrial motion. We reverse the decision of the trial court and remand this matter for a new trial.
BACKGROUND
A traffic accident occurred on December 18, 1997, when Amira rear- ended Moss' vehicle. After the accident, Moss was taken to Northwest Community Hospital where he was examined, fitted with a collar, given a prescription, and released later that evening.
On June 8, 1998, Moss visited Dr. Richard Moser, a neurological surgeon. On February 12, 2002, the discovery deposition of Dr. Moser was taken.
Thereafter, defense counsel provided, in a letter dated June 11, 2002, to plaintiff's counsel, answers to Illinois Supreme Court Rule 213(g) (134 Ill. 2d R. 213(g)) interrogatories, and expressed an intention to call Dr. Moser as a defense opinion witness. With regard to Dr. Moser, the letter stated the following:
"With regard to Illinois Supreme Court Rule 213(g), Defendant discloses Dr. Richard Moser and Dr. J. B. Mansfield as opinion witnesses in this matter. With regards to Dr. Moser, he is expected to testify as to both the subject matter and specific opinions and/or conclusions set forth during his discovery deposition taken on February 12, 2002. The specific opinions to be rendered by Dr. Moser (as set forth during his discovery deposition) include, among other things, that the cervical spondylosis with significant degenerative disc disease was not caused by the automobile accident at issue, that the automobile accident may have exacerbated a pre-existing condition based on the subjective evidence provided by Plaintiff's past medical records/history revealed no complaints of neck pain or radiculopathy prior to the accident (and that he has not seen any of those prior records and does not know anything about Plaintiff's past history), and that he cannot render an opinion one way or another as to whether or not Mr. Moss needs surgery, that if an SSEP study were to be performed and if it did show that surgery was necessary such surgery may have possibly been needed in the future with or without the occurrence of the car accident at issue. In addition, Dr. Moser opines that he does not disagree with the opinions of Dr. Mansfield, Dr. Cybulski, Dr. Lipov, Dr. Cerullo, and Dr. Gropper who have all indicated that surgery is not needed. Dr. Moser further opines that if the accident exacerbated a pre-existing condition he would expect complaints of neck pain and radiculopathy within a few days of the accident. Dr. Moser's qualifications include the fact that he is a board certified neurological surgeon. Dr. Moser's Curriculum Vitae was given to both parties at his discovery deposition. The basis of Dr. Moser's opinions are his examination and trea
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