                                           FIRST DIVISION
                                           March 28, 2011




No. 1-09-0639


ESTATE OF ROSEMARY OGLESBY, )   Appeal from the
Deceased, GEORGE OGLESBY and)   Circuit Court of
GEORGE OGLESBY, as Father   )   Cook County.
and next Friend of GEORGE   )
OGLESBY II, a Minor,        )   No. 02 L 8377
                            )
      Plaintiffs-Appellees, )
                            )
      v.                    )
                            )   Honorable
WILLIAM BERG and THE CHICAGO)   Vanessa Hopkins,
PARK DISTRICT,              )   Judge Presiding.
                            )
      Defendants-Appellants.)

     PRESIDING JUSTICE Hall delivered the judgment of the court,
with opinion.

     Justices Hoffman and Rochford concurred in the judgment and
opinion of the court.

                                OPINION

     The defendants, William Berg and the Chicago Park District,

appeal from a judgment entered on a jury verdict awarding damages

to the plaintiffs, the estate of Rosemary Oglesby, George Oglesby

and George Oglesby II, a minor.    The plaintiffs were injured in a

collision between a park district van, driven by Mr. Berg, and a

Chevy Impala, driven by Mrs. Oglesby.     Her son, George Oglesby

(Mr. Oglesby) and grandson, George II, were passengers in the

Impala.

     On appeal, the defendants raise the following issues:

whether the trial court's denial of their request for an exhibit

to go to the jury room requires a new trial on damages, and
No. 1-09-0639

whether the trial court should have granted a remittitur of the

damages awarded to the estate for Mrs. Oglesby's pain and

suffering and loss of a normal life.       As this appeal concerns

only the damages suffered by Mrs. Oglesby, we will concentrate

our discussion on the evidence pertaining to her injuries and the

results therefrom.

                              BACKGROUND

     The accident occurred on September 23, 1998, at the

intersection of Marquette Avenue and Lake Shore Drive.1         At the

time of the accident, Mrs. Oglesby was 60 years old and suffered

from cancer.     In 2000, Mrs. Oglesby died from complications due

to cancer, and her estate was substituted as a party.         Trial of

the personal injury suit took place on September 23, 2008.

     Mr. Oglesby testified that the impact of the collision was

severe; the park district's van flipped over and the Impala was

destroyed.     Mrs. Oglesby's face hit the windshield. The

plaintiffs were taken by ambulance to Jackson Park Hospital for

treatment.     While not specifically stated in the record, it

appears the plaintiffs were released from the hospital the same

day as the accident.     When Mrs. Oglesby left the hospital, her

head was bandaged.

     Mr. Oglesby testified that Mrs. Oglesby was seen by Dr.



     1
         The original complaint was filed in 1999.   It was

voluntarily dismissed and refiled in 2002.

                                   2
No. 1-09-0639

Silverman and Dr. Volkening.     Following the accident, Mr. Oglesby

moved in with Mrs. Oglesby to care for her, as she was no longer

able to maintain her residence on her own.     Mrs. Oglesby was in

pain from the accident and required medication.     On cross-

examination, Mr. Oglesby testified that Mrs. Oglesby was taking

medication prior to the accident.

     Several exhibits were admitted into evidence during Mr.

Oglesby's testimony.     The plaintiffs' exhibit No. 10 was a

billing statement from Dr. Silverman, dated October 12, 1999.

According to the statement, Mrs. Oglesby was initially seen by

Dr. Silverman on September 25, 1998, two days after the accident.

She had 12 brief office visits between September 26 and October

27, 1998.     During that time, she was treated with hot packs and

joint mobilization.     The total charges were $1,410.

     Dr. Silverman testified via his evidence deposition.2

Testifying from his medical notes, he related that he conducted

an examination of Mrs. Oglesby and then had her tested by Dr.

Volkening, a chiropractic doctor.      Based on his own examination

and Dr. Volkening's test results, Dr. Silverman diagnosed Mrs.

Oglesby as suffering from muscle spasms in the her neck and back



     2
         The plaintiffs do not refer this court to the record cite

where Dr. Silverman's evidence deposition was admitted into

evidence.      However, both parties treat Dr. Silverman's testimony

as part of the evidence considered by the jury.

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No. 1-09-0639

areas.   She had also sustained acute contusions to her knees and

left hand, as well as an abrasion on that hand.   While Mrs.

Oglesby suffered trauma to the left side of her head, the result

from the neurological test was within the normal range.    She

sustained secondary limitation of forward and backward motion in

her neck area, which intensified with activity.   She was also

suffering pain as a result of these conditions.

     Dr. Silverman noted that Mrs. Oglesby had received an

injection for pain at the hospital and also received

prescriptions for Motrin and Flexeril.   Dr. Silverman prescribed

rest and avoidance of strenuous activity, a course of physical

therapy and sitz baths.   She was to sleep on a firm surface and

wear a Stryker collar, a soft neck collar to immobilize her neck.

      Dr. Silverman testified that he continued to see Mrs.

Oglesby periodically.   According to his medical notes, he last

saw her on October 8, 1999.   At that time, Mrs. Oglesby had no

complaints relating to the accident.   The doctor released her

with instructions to come back as needed.   He acknowledged that

Dr. Volkening had performed a second test on Mrs. Oglesby on

October 27, 1998; the test results indicated significant

improvement in her range of motion and muscle strength.

     In closing argument, the plaintiffs' attorney requested an

award of $75,000 for loss of a normal life and $85,000 for Mrs.

Oglesby's pain and suffering, arguing as follows:

     "During the period of time after September 23rd, 1998 until

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No. 1-09-0639

     October of 1999, Rosemary continued to be under the care of

     Dr. Silverman.   She was not effectively released from

     further care until October of 1999, a year after the

     accident."

     In response, the defendants' attorney argued as follows:

          "I would also ask you to look at the bills from the

     Silverman Foreman Medical Associates for Rosemary Oglesby,

     and you will note that her initial exam was on September

     25th, 1998 and her last treatment was on 22, October of

     1998.   So we are talking here essentially about one month,

     *** a little over a - - around a month's treatment.    And

     what did the treatment consist of?   Sitz bath, that's a

     fancy word for she stepped in the hot tub.   Compare the

     claim of injury to the actual office visits.   Inferential

     hot packs, I have got a heating pad at home.   Joint

     mobilization, the last of which was through October of 1998.

     That's near the accident."

     The jury returned a verdict in favor of Mrs. Oglesby's

estate.   In addition to amounts for medical expenses and property

damage, the jury determined the damages for her pain and

suffering to be $42,000 and her damages for loss of a normal life

to be $34,000,    The jury further found Mrs. Oglesby 40% negligent

and awarded her estate a total of $47,200.20.

     The trial court denied the defendants' posttrial motion.

This appeal followed.

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No. 1-09-0639

                               ANALYSIS

                             I. New Trial

     The defendants contend that they are entitled to a new trial

because the trial court erred when it denied the defendants'

request to send exhibit No. 10 to the jury room.

     After the jury retired to deliberate, the trial court asked

the parties' attorneys which exhibits they wished to go to the

jury room.    The defendants' attorney requested that exhibit No.

10 be sent to the jury.    After the court pointed out that No. 10

was the plaintiffs' exhibit, the defendants' attorney argued to

the court as follows:

            "MR. BROWN: I respectfully submit if they are all in

     evidence, which ever party submits the evidence, they should

     be allowed to go back to the jury.

             THE COURT: Yes, if [the plaintiffs' attorney] chooses

     to send them back to the jury.

                                 * * *

             THE COURT: If counsel wants to send in his exhibit, he

     can.    If he chooses not to, that's noted.   If the jurors

     request it, then it will go in."

                         A. Standard of Review

     Our courts have held that the decision to send exhibits to

the jury room is within the discretion of the trial court, and we

will not reverse that decision absent an abuse of discretion that

prejudices a party.     Gallina v. Watson, 354 Ill. App. 3d 515,

                                   6
No. 1-09-0639

522, 821 N.E.2d 326 (2004).

                            B. Discussion

     Section 2-1107(d) of the Code of Civil Procedure (the Code)

provides that "[p]apers read or received in evidence, other than

depositions, may be taken by the jury to the jury room for use

during the jury's deliberations."     735 ILCS 5/2-1107(d) (West

2008).    The trial court has the discretion to permit all admitted

evidence relevant to any material fact to go to the jury room.

Bieles v. Ables, 234 Ill. App. 3d 269, 272, 559 N.E.2d 469

(1992).   Nothing in section 2-1107(d) requires a court to deny a

party's request to send an exhibit to the jury room solely on the

basis that the exhibit was placed in evidence by the opposing

party.    Exhibit No. 10 met the statutory criteria in that it was

not a deposition and had been admitted into evidence.     In

addition, it was also relevant to the issue of Mrs. Oglesby's

pain and suffering resulting from the accident.

     In the quoted exchange between the defendants' attorney and

the trial court, the court refused to order exhibit No. 10 be

taken to the jury room because the request was not made by the

party offering the exhibit or pursuant to a request by the jury.

The court's statements indicate that it felt it had no choice but

to deny the request.   Therefore, the court's ruling was not an

abuse of discretion but a failure to exercise its discretion.      A

trial court's refusal to exercise its discretion due to its

belief it has none is error.    Allstate Insurance Co. v. Rizzi,

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No. 1-09-0639

252 Ill. App. 3d 133, 137, 625 N.E.2d 74 (1993).   "Whether the

error requires reversal depends upon the circumstances presented

by each case."    Allstate Insurance Co., 252 Ill. App. 3d at 137;

see also In re Mark P., 402 Ill. App. 3d 173, 178, 932 N.E.2d 481

(2010) (error in failing to exercise discretion may be harmless).

     The defendants maintain that the jury's determination that

$42,000 represented Mrs. Oglesby's damages for pain and suffering

was based on Dr. Silverman's testimony that Mrs. Oglesby remained

under his care for a year after the accident.   The defendants

argue that it was essential that exhibit 10 be sent to the jury

room because it established that Mrs. Oglesby's treatment lasted

only a month.    Thus, the denial of their request to have exhibit

No. 10 sent to the jury room was prejudicial and required a new

trial.

     Having reviewed the evidence relevant to the award of

damages to Mrs. Oglesby for pain and suffering, we determine that

reversal is not required in this case.   Dr. Silverman testified

from his medical notes that, following her last treatment on

October 27, 1998,   he   continued to see Mrs. Oglesby periodically

and that he last saw her on October 8, 1999.    At that visit, she

reported having no further complaints attributable to the

accident and was released from his care.   Although exhibit No. 10

did not list any office visits after October 1998, the

defendants' attorney never questioned Dr. Silverman as to the

inconsistency between his medical notes and his billing

                                  8
No. 1-09-0639

statement.

     Moreover, in closing argument, the defendants' attorney

pointed out that Mr. Oglesby's treatment had lasted a month and

in reality consisted of using a heating pad and sitting in warm

water.   He asked the jury to compare the injury claim to the

actual office visits, thus drawing the jury's attention to the

fact that Mrs. Oglesby's last treatment was in October 1998.

The defendants' closing argument contemplated that the jury would

actually be able to view exhibit No. 10 during deliberations, the

jury did not request to view exhibit No. 10.

     The defendants rely on Gallina.    In Gallina, the appellate

court held that the trial court abused its discretion when it

refused to allow an exhibit containing a doctor's written opinion

disclosures to be taken to the jury room, as the exhibit would

have assisted the jury in assessing the doctor's testimony.     The

reviewing court rejected the argument that sending the exhibit to

the jury would have overemphasized that particular piece of

evidence.    Since all the other exhibits had been sent to the jury

room, the court determined that not sending the exhibit to the

jury room diminished the evidence contained in the exhibit.

Gallina, 354 Ill. App. 3d at 522.

     The plaintiffs state that, unlike Gallina, not all of the

other exhibits were sent to the jury room.   While the record is

unclear on this point, we note that the defendants do not

challenge the accuracy of the plaintiffs' statement.   Therefore,

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No. 1-09-0639

Gallina is not persuasive.    Moreover, exhibit No. 10 was an

uncomplicated billing statement.      The billing statement was

evidence of the dates of Mrs. Oglesby's office visits and

treatment dates.   The significance of those dates was pointed out

to the jury and strenuously argued to the jury by the defendants'

attorney.   The fact that the jury determined the damages for Mrs.

Oglesby's pain and suffering to be $42,000, rather than the

$85,000 requested by the plaintiffs, strongly suggests that the

jury did not ignore the defendants' evidence on this issue.

     The defendants also assert that a comparison of the damages

awarded to Mrs. Oglesby with the smaller damages awards to Mr.

Oglesby and George II was sufficient to show that the defendants

were prejudiced by the failure to send exhibit No. 10 to the jury

room.   We disagree.   The jury heard the evidence as to the

injuries suffered by each plaintiff, the required treatment and

any residual effects resulting from the accident.      In closing

argument, the plaintiffs' attorney reiterated the amount of

damages sought for each of the plaintiffs.      In making the

determination as to damages suffered by all three plaintiffs, the

jury did not lack any information that viewing exhibit No. 10

would have provided.

     We conclude that the trial court erred when it failed to

exercise its discretion in denying the defendants' request to

have exhibit No. 10 sent to the jury room.      While this was error,

the defendants have failed to establish that they were

                                 10
No. 1-09-0639

sufficiently prejudiced by the trial court's error to require a

new trial on the damages awarded to Mrs. Oglesby's estate.

                            II. Remittitur

     In closing argument, the plaintiffs' attorney requested that

the jury award $85,000 for Mrs. Oglesby's pain and suffering and

$75,000 for her loss of a normal life.       Prior to applying the 40%

reduction due to Mrs. Oglesby's negligence, the jury found the

damages for her pain and suffering to be $42,000 and her damages

for loss of a normal life to be $34,000.

     The defendants contend that the evidence did not support the

jury's determination of damages.       They request that this court

order a remittitur of 50% of the damages for pain and suffering

and for loss of a normal life.

                       A. Standard of Review

     We review the ruling on a motion for a remittitur under the

abuse of discretion standard.    Diaz v. Legat Architects, Inc.,

397 Ill. App. 3d 13, 45, 920 N.E.2d 582 (2009).       We will find an

abuse of discretion only if the trial court's ruling was

arbitrary, ignored recognized principles of law or if no

reasonable person would take the position adopted by the trial

court.   Schmitz v. Binette, 368 Ill. App. 3d 447, 452, 857 N.E.2d

846 (2006).   " 'In determining whether there has been an abuse of

discretion, we may not substitute our judgment for that of the

trial court, or even determine whether the trial court exercised

its discretion wisely.' "    Clarke v. Medley Moving & Storage,

                                  11
No. 1-09-0639

Inc, 381 Ill. App. 3d 82, 95, 885 N.E.2d 396 (2008) (quoting

Simmons v. Garces, 198 Ill. 2d 541, 568, 763 N.E.2d 720 (2002)).

                           B. Discussion

     The purpose of a remittitur is to correct an excessive jury

verdict in limited and appropriate circumstances.     Clarke, 381

Ill. App. 3d at 96.   The trier of fact determines the amount of

damages and, as a reviewing court, we give great deference to a

jury's award of damages.   Clarke, 381 Ill. App. 3d at 96.    " 'A

verdict will not be set aside by a court unless it is so

excessive that it indicates that the jury was moved by passion or

prejudice or unless it exceeds the necessarily flexible limits of

fair and reasonable compensation or is so large that it shocks

the judicial conscience.' "   Diaz, 397 Ill. App. 3d at 47

(quoting Kindernay v. Hillsboro Area Hospital, 366 Ill. App. 3d

559, 572, 851 N.E.2d 866 (2006)).    Where the jury's verdict falls

within the flexible range of conclusions reasonably supported by

the evidence, a remittitur should not be granted.     Diaz, 397 Ill.

App. 3d at 47.   In reviewing an award of compensatory damages for

a nonfatal injury, we may consider, among other things, the

permanency of the condition, the possibility of future

deterioration, the extent of the medical expenses and

restrictions imposed as a result of the injury.     Richardson v.

Chapman, 175 Ill. 2d 98, 113-14, 676 N.E.2d 621 (1997).

     In seeking a 50% remittitur, the defendants rely on

Richardson.   As the result of a car/truck collision, plaintiff

                                12
No. 1-09-0639

Ann McGregor sustained a laceration on her forehead; she was

treated and released from the hospital the same day.     The

laceration healed with only a slight scar.     She also suffered

from nightmares from the accident.     The jury awarded her $100,000

for pain and suffering.    As Ms. McGregor's injury was not

serious, the supreme court determined that an award of $50,000

for pain and suffering was more appropriate.      Richardson, 175

Ill. 2d at 115.

     As Mrs. Oglesby was deceased at the time of trial, the

evidence of her pain and suffering and loss of a normal life was

presented through the testimony of Dr. Silverman and Mr. Oglesby.

Through Dr. Silverman's testimony, the jury learned that, as a

result of the accident, Mrs. Oglesby sustained neck and back

injuries, which required treatment.     She also had been prescribed

medication for her pain.    Although her treatments ceased in

October 1998, she continued to see Dr. Silverman, periodically,

until October 1999.   Through Mr. Oglesby's testimony, the jury

learned that, prior to the accident, Mrs. Oglesby lived and

maintained her residence on her own.     After the accident, Mr.

Oglesby moved in with her to care for her as she was no longer

able to perform household tasks.      According to Mr. Oglesby, she

suffered pain due to the accident and required pain medication

frequently.

     Richardson does not support the defendants' request for a

remittitur of 50% of the damage awards for pain and suffering and

                                 13
No. 1-09-0639

loss of a normal life.   Mrs. Oglesby's injuries sustained in the

accident and the resulting pain and suffering were far more

serious than those of Ms. McGregor in Richardson.

     As this court has previously observed, a damage award is not

subject to scientific computation.   Velarde v. Illinois Central

R.R. Co., 354 Ill. App. 3d 523, 540, 820 N.E.2d 37 (2004).    Mr.

Oglesby's testimony, while not extensive, as well as that of Dr.

Silverman, supported an award of damages for Mrs. Oglesby's loss

of a normal life, as well as for her pain and suffering. Finally,

while the plaintiffs requested a total of $160,000 in damages for

Mrs. Oglesby's pain and suffering and loss of a normal life, the

jury set those damages at $76,000, less than half the amount the

plaintiffs had requested.   That amount was then subject to a 40%

reduction for Mrs. Oglesby's negligence.

     We conclude that the evidence supported the jury's award of

damages to the estate for Mrs. Oglesby's pain and suffering and

loss of a normal life.   The trial court did not abuse its

discretion in refusing to grant the defendants a remittitur.

Accordingly, we reject the defendants' request for a 50%

remittitur.

                            CONCLUSION

     The judgment of the circuit court is affirmed.

     Affirmed.




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