                              ILLINOIS OFFICIAL REPORTS
                                            Appellate Court




                           Lough v. BNSF Ry. Co., 2013 IL App (3d) 120305




Appellate Court               CHARLES LOUGH, Independent Executor of the Estate of Kenneth
Caption                       Lough, Deceased, Plaintiff-Appellant, v. BNSF RAILWAY COMPANY
                              and LEO J. JOERGER, Defendants-Appellees.



District & No.                Third District
                              Docket No. 3-12-0305


Rule 23 Order filed           March 25, 2013
Motion to publish
allowed                       May 3, 2013
Opinion filed                 May 3, 2013


Held                          Summary judgment was properly entered for defendants in a wrongful
(Note: This syllabus          death action arising from the death of plaintiff’s father 22 months after he
constitutes no part of        was involved in an automobile accident with defendant, since there was
the opinion of the court      no evidence supporting plaintiff’s reliance on the “eggshell plaintiff
but has been prepared         doctrine” that the accident caused or aggravated the deceased’s
by the Reporter of            congestive heart failure from COPD/emphysema, the afflictions listed on
Decisions for the             his death certificate as the cause of his death.
convenience of the
reader.)


Decision Under                Appeal from the Circuit Court of Bureau County, No. 09-L-40; the Hon.
Review                        Marc P. Bernabei, Judge, presiding.



Judgment                      Affirmed and remanded.
Counsel on                 James R. Angel (argued), of May, May, Angel & Harris, of Princeton, for
Appeal                     appellant.

                           Craig L. Unrath, Stephen J. Heine, and Patrick P. Poston, all of Heyl,
                           Royster, Voelker & Allen, of Peoria, and Tamara K. Hackmann (argued),
                           of Heyl, Royster, Voelker & Allen, of Urbana, for appellees.


Panel                      JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
                           Justices Lytton and McDade concurred in the judgment and opinion.




                                             OPINION

¶1          Defendant Leo Joerger drove a vehicle during the course of his employment with
        defendant BNSF Railway Company which collided with a vehicle driven by Kenneth Lough.
        Kenneth died 22 months after the accident. This appeal involves the dismissal of two
        wrongful death counts brought by plaintiff, Charles Lough, as the independent executor of
        the estate of Kenneth Lough, against defendants. The circuit court of Bureau County granted
        defendants’ joint motion for summary judgment, thereby dismissing the wrongful death
        counts. Plaintiff appeals, claiming evidence of causation exists sufficient to withstand
        defendants’ motion for summary judgment.

¶2                                         BACKGROUND
¶3          The automobile accident at issue in this matter took place on October 19, 2007. As noted
        above, it involved vehicles driven by Kenneth Lough and defendant Leo Joerger.
¶4          Kenneth Lough was born July 29, 1938. Dr. Martin Faber, Kenneth’s primary physician,
        began treating him in July of 1979. In December of 1978, Kenneth was involved in a
        snowplow accident, which either caused or contributed to significant neck problems. At the
        time of Kenneth’s first visit to Dr. Faber in 1979, Kenneth already suffered from the onset
        of chronic obstructive pulmonary disease (COPD), which was likely caused by smoking, a
        genetic disease or chemical exposure.
¶5          Dr. Faber testified in his deposition that at some point in time, Kenneth developed severe
        depression from which he never truly recovered. Kenneth had been treated for depression as
        of March of 1985. Kenneth’s COPD progressed from 1979 until the time of his death. Dr.
        Faber noted it was “unrelenting in its severity.”
¶6          A physical examination in 1979 indicated that Kenneth had right neuroforaminal changes
        at C5-C6; X-rays taken in 1986 disclosed moderate to marked degenerative changes at
        multiple levels in his spine, including his neck. Kenneth’s depression became “unrelenting”

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       after the death of his wife in 1993. In 1992, Kenneth complained of memory changes.
       Kenneth had difficulty driving and would routinely get lost when leaving the house. He also
       forgot names of his children and friends.
¶7         Dr. Faber noted that in 1997, Kenneth continued to have severe arthritis problems in his
       neck and back, which did not resolve prior to his death. Dr. Faber diagnosed Kenneth with
       “failed low back symptoms” in 2004, which meant that his pain was chronic and
       unresponsive to surgical or pharmacological remedies. Dr. Faber stated that the health
       problems Kenneth suffered from prior to the accident were related to a combination of
       smoking, occupational circumstances, lifestyle, injury and hereditary changes. Prior to the
       accident, Kenneth’s prescriptions included OxyContin for pain, alazopram for depression and
       sleeping troubles, and inhalers for his COPD.
¶8         Dr. Faber stated that given Kenneth’s preaccident condition, he was susceptible to
       increased injury beyond a healthy individual. Any trauma would likely result in greater pain,
       immobility and inactivity. Dr. Faber noted that a patient who is immobilized and
       experiencing Kenneth’s level of neck and back pain would have problems coughing, leading
       to difficulty fighting off pneumonia.
¶9         Records indicate that Kenneth was taken to Perry Memorial Hospital after the accident.
       Magnetic resonance imagings (MRIs) that were taken at Perry Memorial showed no acute
       traumatic abnormality in Kenneth’s neck or back following the accident.
¶ 10       When asked about this accident of October 19, 2007, Dr. Faber testified that he “would
       have a difficult time connecting that particular motor vehicle accident after 22 months with
       the patient’s death.” Defense counsel asked Dr. Faber, “Is it more probably true than not in
       your opinion that there is no connection between the car accident and the man’s death?” Dr.
       Faber replied, “I would have to concur with that.” Dr. Faber last examined Kenneth on July
       16, 2009, almost one month prior to his death.
¶ 11       Kenneth’s son, Chuck, testified that prior to the accident, his father rode motorcycles,
       hunted with friends, drove around the country, went to breakfast, mowed the lawn and
       worked in the garden. Chuck noted that on the day of the accident, Chuck called Kenneth,
       who stated he had just been in an accident. Chuck arrived at the hospital to see Kenneth
       being removed from an ambulance. Kenneth complained of being sore at the emergency
       room, where he was treated with shots of pain medicine before being released home.
¶ 12       Chuck noted that Kenneth’s condition became worse after the accident. Kenneth did not
       wish to leave the house or engage in other activities. Chuck believed his father became more
       depressed after the accident. Prior to his death, Kenneth was in the hospital on several
       occasions for pneumonia.
¶ 13       Dr. Faber referred Kenneth to a pain management doctor, Ronald Kloc, in January of
       2008, four months postaccident. Dr. Kloc reviewed X-rays and found no acute traumatic
       abnormality, but noted degenerative disc disease, facet joint arthritis and inflammation in the
       sacroiliac joint. Kenneth relayed to Dr. Kloc that prior to the accident, he rode motorcycles
       or snowmobiles but was unable to afterwards. Kenneth further informed Dr. Kloc that his
       pain was much worse after the accident. Dr. Kloc diagnosed Kenneth with degenerative disc
       disease of the cervical spine, facet joint arthritis and sacroilitis. Dr. Kloc noted that COPD

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       is the chronic deterioration of the stroma in the lung tissue, which must be thin and clear
       enough to allow for oxygen exchange. A patient who suffers from COPD experiences
       inadequate oxygen exchange, which requires the heart to pump harder, eventually leading
       to heart failure.
¶ 14        Dr. Kloc noted it was difficult to determine how much of Kenneth’s pain came from the
       1978 accident as opposed to the 2007 accident. He concluded that Kenneth’s pain became
       worse after the 2007 accident, noting that increasing age obviously played a significant role
       in the increased pain. Dr. Kloc testified that he had no quarrel with the cause of death stated
       on Kenneth’s death certificate and no other opinion as to any other suspected causes of death.
       Dr. Kloc agreed that Kenneth did not die due to any of the degenerative problems he had
       throughout his spine or due to the 1978 or 2007 car accident. Dr. Kloc could not quantify the
       extent to which the 2007 accident impacted Kenneth’s degenerative condition, noting “it’s
       anybody’s guess as to how exactly much more it hurt him” and “it’s hard to quantify with a
       specific number.”
¶ 15        On April 14, 2008, Kenneth presented to the Princeton Hospital emergency room
       complaining of weakness and frequent falls. Dr. Rick Cernovich found Kenneth had an
       irregular heart rhythm consistent with a history of chronic atrial fibrillation. Dr. Cernovich
       had no opinion that Kenneth’s complaints of light-headedness in the emergency room were
       related to any car accident.
¶ 16        Kenneth died on August 11, 2009. The cause of death on his death certificate indicates
       congestive heart failure, with an onset of two months, secondary to COPD/emphysema three
       months. No autopsy was performed.
¶ 17        Plaintiff’s complaint contains four counts. Counts I and II allege wrongful death pursuant
       to the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2010)). Counts III and IV
       sounded in negligence and were brought pursuant to section 27-6 of the Probate Act of 1975,
       commonly referred to as the Survival Act (755 ILCS 5/27-6 (West 2010)). Defendants
       moved for summary judgment on counts I and II, claiming the plaintiff failed to adduce
       sufficient evidence establishing that their actions were a proximate cause of Kenneth’s death.
       The trial court agreed and granted defendants’ motion for summary judgment. The trial court
       included language in the order dismissing counts I and II pursuant to Illinois Supreme Court
       Rule 304(a) (eff. Feb. 26, 2010), finding there was no just reason to delay enforcement or
       appeal of the order. The survival actions contained in counts III and IV remain pending in
       the circuit court. This appeal followed.

¶ 18                                         ANALYSIS
¶ 19        We review an order granting summary judgment de novo. Schultz v. Illinois Farmers
       Insurance Co., 237 Ill. 2d 391 (2010). Summary judgment motions are governed by section
       2-1005 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1005 (West 2010)). Pursuant
       to that section, summary judgment should be granted only where the pleadings, depositions,
       admissions and affidavits on file, when viewed in the light most favorable to the nonmoving
       party, show that there is no genuine issue as to any material fact and that the moving party
       is clearly entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2010). “If the

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       plaintiff fails to establish any element of the cause of action, summary judgment for the
       defendant is proper.” Williams v. Manchester, 228 Ill. 2d 404, 417 (2008).
¶ 20       To state a cause of action under the Wrongful Death Act (the Act), a plaintiff must show
       that: (1) defendant owed a duty to the deceased; (2) defendant breached the duty; (3) the
       breach proximately caused the decedent’s death; and (4) monetary damages resulted to
       persons designated under the Act. 740 ILCS 180/1 (West 2010); Bovan v. American Family
       Life Insurance Co., 386 Ill. App. 3d 933 (2008). “The traditional statement of proximate
       cause requires plaintiff to prove that defendant’s negligence ‘more probably than not’ caused
       plaintiff’s injury.” Holton v. Memorial Hospital, 176 Ill. 2d 95, 107 (1997).
¶ 21       The term “proximate cause” describes two distinct requirements: cause in fact and legal
       cause. Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 455 (1992). “[L]iability cannot be
       premised merely upon surmise or conjecture as to the cause of the injury.” Id. “Cause in fact
       concerns whether the defendant’s conduct is a material factor in bringing about the injury.”
       Majetich v. P.T. Ferro Construction Co., 389 Ill. App. 3d 220, 224 (2009). “A defendant’s
       conduct is a material factor in bringing about the injury if, absent the conduct, the injury
       would not have occurred.” Id. “Legal cause deals with a question of foreseeability.” Id.
       “Absent affirmative and positive evidence that defendant proximately caused plaintiff’s
       injuries, a plaintiff fails to establish the existence of a genuine issue of material fact.” Id.
¶ 22       Plaintiff contends this is a classic “eggshell” plaintiff case. That is, this accident resulted
       “in bringing a dormant disease or condition into activity” and, as such, the accident rather
       than the disease is the proximate cause of the injury. Defendants disagree, claiming that the
       plaintiff failed to adduce any credible evidence suggesting this accident proximately caused
       Kenneth’s death. Defendants not only argue that plaintiff failed to adduce evidence
       suggesting that this accident proximately caused Kenneth’s death, but that Kenneth’s own
       physician affirmatively testified that the accident did not cause or contribute to Kenneth’s
       death.
¶ 23       Again, when asked about this accident of October 19, 2007, Dr. Faber testified that he
       “would have a difficult time connecting that particular motor vehicle accident after 22
       months with the patient’s death.” Defense counsel asked Dr. Faber, “Is it more probably true
       than not in your opinion that there is no connection between the car accident and the man’s
       death?” Dr. Faber replied, “I would have to concur with that.”
¶ 24       “Our courts have held that there should be no recovery where there has been a failure to
       prove a causal connection between the injury and the event at issue.” Manion v. Brant Oil
       Co., 85 Ill. App. 2d 129, 136 (1967). Evidence of proximate cause “must not be contingent,
       speculative or merely possible, but that there must be such degree of probability as to amount
       to a reasonable certainty that such causal connection exists.” Id. Liability “cannot be
       predicated upon speculation, surmise, or conjecture as to the cause of the injuries.” Schultz
       v. Hennessy Industries, Inc., 222 Ill. App. 3d 532, 540 (1991). “Proximate cause can only be
       established when there is a reasonable certainty that the defendant’s acts caused the injury.”
       Id.
¶ 25       Simon v. Lumbermens Mutual Casualty Co., 53 Ill. App. 3d 380 (1977), involved a
       dispute between a widow and her decedent husband’s insurance carrier. The defendant issued


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       two policies of insurance to the decedent, which paid for bodily injury sustained while
       driving or riding in a private passenger automobile. Id. On the day of his death, the decedent
       and his wife attended a funeral after which the decedent went to his car, which was second
       in a long line of cars while his wife went to another car. Id. at 381. Witnesses observed the
       car decedent was driving lurch forward, striking the first car in line and pushing it
       approximately 15 feet. Id. After witnessing this, one person rushed to decedent’s car, finding
       the decedent “gasping for air,” “gagging and his eyes were bulging *** sort of rolling.”
       (Internal quotation marks omitted.) Id. The decedent’s color was yellowish and there was no
       blood or marks of trauma on the decedent. Id. The decedent’s car sustained minimal damage
       from the collision. Id. The decedent passed away the same day. Id. at 382.
¶ 26       Prior to the incident at the funeral, the decedent had treated for 1½ years with Dr. Goldt
       for high blood pressure. Id. Dr. Goldt signed decedent’s death certificate indicating the cause
       of death was acute coronary thrombosis. Id. During his evidence deposition, Dr. Goldt
       testified that “ ‘the coronary could have been caused by the trauma.’ ” Id. Dr. Goldt further
       stated that the accident “ ‘or hypertensive disease’ ” led to the coronary. Id. When asked, “ ‘is
       there any way for you to tell on the basis of that whether the accident caused the heart attack
       or the heart attack caused the accident?’ ” Dr. Goldt replied, “ ‘I would have to say no.’ ” Id.
       at 383.
¶ 27       In addition to Dr. Goldt’s testimony, the Simon plaintiff offered testimony of the
       decedent’s wife and bystanders at the funeral who testified to the decedent’s appearance of
       health prior to the accident. Id. at 381. Nevertheless, at the close of the plaintiff’s case-in-
       chief, the trial court struck Goldt’s testimony and directed a verdict for defendant. Id. at 383.
¶ 28       In affirming the trial court’s decision, the Simon court noted that Goldt’s testimony could
       not be considered by the jury to establish causation as it was speculative and based upon
       conjecture. Id. at 384. The Simon court noted that without “Dr. Goldt’s testimony there is
       insufficient evidence in the record for the case to be submitted to the jury to determine that
       the death was proximately caused by the accident. The jury could only speculate as to
       whether or not the accident had anything to do with the cause of death.” Id. at 387.
¶ 29       We find Simon instructive. The argument for affirmation is even stronger in the case at
       bar than it was in Simon as Dr. Goldt testified that the “ ‘coronary could have been caused
       by the trauma.’ ” Id. at 382. Dr. Faber offered testimony that there was “no connection”
       between the automobile accident in this matter and decedent’s death. Again, Dr. Faber
       concurred with the assertion that it is “more probably true than not *** that there is no
       connection between the car accident and the man’s death.” Dr. Kloc testified that he had no
       quarrel with the cause of death as stated on Kenneth’s death certificate and no other opinion
       as to any other suspected causes of death.
¶ 30       Plaintiff argues he offered sufficient evidence to allow a jury to consider the causal
       connection between the automobile accident and decedent’s death. Plaintiff initially claims
       the decedent was a “thin-skull” or “eggshell” plaintiff as described by the “eggshell plaintiff
       doctrine.” Plaintiff argues “where an accident results in bringing a dormant disease or
       condition into activity, the accident, rather than the disease is the proximate cause of the
       injury.” However, plaintiff offered no evidence to support this theory.


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¶ 31       Plaintiff then cites to People v. Amigon, 239 Ill. 2d 71 (2010), to support his “eggshell
       plaintiff” theory claiming, “The Illinois Supreme Court has addressed the causation issue ***
       in a case with facts strikingly similar” to the one at bar. Our review of Amigon indicates it
       could not be more dissimilar to the case at bar. In Amigon, the defendant shot Alfonso Ruiz
       “causing a spinal cord injury and paralyzing him from the neck down, leaving him capable
       of moving only his head and biceps.” Id. at 74. Approximately 5½ years after the shooting,
       Ruiz was hospitalized with pneumonia and later died. Id. The State charged and convicted
       the Amigon defendant with Ruiz’s murder. Id. at 75.
¶ 32       The Amigon defendant argued the State failed to adduce sufficient evidence proving he
       was the legal cause of Ruiz’s death. Id. at 77. Our supreme court disagreed, noting an
       assistant medical examiner testified “within a reasonable degree of medical and scientific
       certainty, that Ruiz’s death was a homicide because a gunshot wound caused the quadriplegia
       that made him more susceptible to pneumonia.” Id. at 76.
¶ 33       There is no evidence suggesting this automobile accident caused or aggravated Kenneth’s
       congestive heart failure or COPD/emphysema. There is nothing in the Amigon decision to
       suggest that the decedent therein was anything but a healthy individual prior to being shot.
       Expert testimony in Amigon firmly established that the shooting caused quadriplegia, which,
       in turn, made the Amigon decedent more susceptible to pneumonia. The same quantum of
       expert evidence is simply not present in this case. We disagree with plaintiff’s assertion that
       the testimony in Amigon is “very similar” to “Dr. Faber’s later testimony that Mr. Lough’s
       injuries from the accident and pre-existing neck and back conditions made him less able to
       fight his COPD and pneumonia, which eventually led to the fatal heart failure.” Dr. Faber
       specifically agreed with the statement that there “is no connection between the car accident”
       and Mr. Lough’s death.
¶ 34       Finally, plaintiff claims the trial court improperly required “direct causation testimony,”
       thereby impermissibly foreclosing the possibility that plaintiff proffered sufficient
       circumstantial evidence of causation to create a genuine issue of material fact. Citing to
       McCullough v. Gallaher & Speck, 254 Ill. App. 3d 941 (1993), plaintiff notes, “ ‘Proximate
       cause can be sufficiently established by circumstantial evidence when an inference may
       reasonably be drawn from it.’ ” Id. at 949. This court acknowledged that principle in
       Majetich v. P.T. Ferro Construction Co., 389 Ill. App. 3d 220. We further stated, however,
       that when a “plaintiff relies upon circumstantial evidence to establish proximate cause to
       defeat a motion for summary judgment, the circumstantial evidence must be of such a nature
       and so related as to make the conclusion more probable as opposed to merely possible.” Id.
       at 225.
¶ 35       No evidence exists in the record on appeal to support the conclusion that the accident
       “more probably than not” contributed to decedent’s death. Dr. Faber specifically testified that
       the two incidents were not related. Dr. Kloc testified that it would be impossible to quantify
       how much, if any, additional pain Kenneth suffered at the time of his death from this
       accident. Plaintiff proffered no testimony suggesting that an automobile accident can cause
       congestive heart failure or COPD/emphysema, the causes of death listed on Kenneth’s death
       certificate.


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¶ 36                                     CONCLUSION
¶ 37      For the foregoing reasons, the judgment of the circuit court of Bureau County is affirmed
       and the cause is remanded for further proceedings on the remaining counts.

¶ 38      Affirmed and remanded.




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