dissenting:
I respectfully dissent.
I cannot agree that the jury’s finding is palpably erroneous and wholly unwarranted by the evidence. The jury could in fact have properly found for the defendant because defendant’s expert witness, Dr. Raymond Frederick, testified that Carlos and Mary Maple were not injured in the accident, and that their injuries, if any, were caused by unrelated circumstances.
The majority states that Dr. Frederick conceded that plaintiffs may have been slightly injured and that their injuries could have been caused by the car accident. No such conclusions were drawn by Dr. Frederick. He in fact found no objective evidence of injury to Carlos Maple. Likewise, no physical impairment was found in his examination of Mr. Maple. When Dr. Frederick was asked whether he has an opinion whether the accident was related to the symptoms Carlos Maple complained of, the doctor stated:
“Certainly not the back symptoms. I think that is fairly definite. His other symptoms are quite mild. I don’t know what to say about neck, feeling fatigue when he is watching television and driving. That is a very low grade, subjective complaint. I guess if he were my patient I would tell him to exercise and lose weight and lead a normal life and that it would go away.”
Dr. Frederick opined that Mary Maple’s complaint several days after the accident of neck and back pain suggested to him that hers was a “relatively minor injury.” Dr. Frederick testified that he suspected that her symptoms were exaggerated. EL found that she had been in a prior automobile accident in 1978 and that she suffered from osteoarthritis, which can cause pain and stiffness. He testified that this condition was in no way connected with the accident at bar. Dr. Frederick concluded that Mary Maple has advanced arthritis and degenerative disease, obesity and general infirmities to entirely account for her present state of health.
In light of the evidence, I believe the jury’s verdict may have been the result of its assessment of Dr. Frederick’s testimony that Carlos and Mary Maple were not injured in the accident and that any injuries complained of were caused by circumstances other than the accident. The question of what evidence to believe and what evidence to reject is a decision for the trier of fact, whose determination should not be upset on review unless manifestly erroneous. (Hall v. Northwestern University Medical Clinics (1987), 152 Ill. App. 3d 716, 725, 504 N.E.2d 781, 787.) I would affirm the judgment of the circuit court.
As for the remaining issues raised by the plaintiffs which the majority did not address, I do not find the alleged errors sufficient to reverse.
Plaintiffs argue that they were prejudiced by the testimony of Dr. Frederick that the hospital at which the plaintiffs received a CT scan was predisposed to making diagnoses involving disc trauma. Plaintiffs filed a pretrial motion in limine requesting that the court preclude Dr. Frederick from testifying concerning the CT scans of Wood River Township Hospital that he reviewed subsequent to his deposition of April 4, 1988. The trial judge denied plaintiffs’ motion. However, during trial the court twice promptly sustained the plaintiffs’ objection to Dr. Frederick’s testimony as to the hospital’s predisposition to making disc-trauma diagnoses, and the jury was instructed to disregard the comments. Under these circumstances, I cannot conclude that any prejudicial error occurred.
The third issue raised by the plaintiffs is whether they are entitled to a new trial because of newly discovered evidence. During pretrial discovery, the plaintiffs inquired of Gustafson as to the type and costs of repairs to his car. At trial Mervin Gustafson testified that he had a $30 adjustment made to the driver’s side door latch. Plaintiffs argue that because this evidence came as a surprise they are entitled to a new trial.
Generally, to justify a new trial on the basis of newly discovered evidence, the evidence must:
“(1) appear to be of such a character that it will probably change the result if a new trial is granted; (2) have been discovered since trial; (3) be such as could not have been discovered before trial by the exercise of due diligence; (4) be material to the issue; and (5) not be merely cummulative [sic] of evidence offered at trial.” Waltz v. Schlattman (1980), 81 Ill. App. 3d 971, 977, 401 N.E.2d 994, 999.
Plaintiffs did not express surprise or request a continuance after Gustafson testified as to the door latch repair. Plaintiffs cross-examined Gustafson as to the door latch repair and argued to the jury that the photograph of defendant’s vehicle did not accurately depict the extent of damage to defendant’s car after the accident because the photograph was taken after the door latch adjustment. The evidence of the door latch adjustment was discovered at trial and was presented to the jury, and counsel was permitted to cross-examine defendant as to the evidence. Plaintiffs have failed to demonstrate how this newly discovered evidence has prejudiced them or that it is of such a character that it would change the result if a new trial were granted.
Based on the foregoing, I would affirm the decision of the trial court.