specially concurring:
I agree with the holding of the majority, but write separately to more fully address some issues regarding plaintiffs claim.
With respect to the Voykin issue, the majority correctly points out that it was the plaintiff who put on evidence of the prior shoulder pain and the preexisting torn rotator cuff. Additionally, I note that not only did the plaintiff put on this evidence, but the plaintiff sought damages for aggravation of a preexisting condition. Voykin is clearly not applicable.
Regarding plaintiff s demand for judgment notwithstanding the verdict, plaintiff argues that it is undisputed that her preexisting shoulder injury was aggravated by this accident. Plaintiffs expert, Timothy Morgan, M.D., made it clear that in his opinion, the torn rotator cuff was a chronic injury that preexisted the automobile accident. Plaintiff claims that her pain increased after the accident. Dr. Morgan testified that his opinion that this accident aggravated the pain in the plaintiff’s left shoulder was based on her subjective complaints. He made this clear on redirect examination by plaintiffs attorney:
“Q. Doctor, it remains your opinion that this accident aggravated Ms. Janky’s rotator cuff injury?
A. My opinion that it aggravated her pain is based on her telling me that.”
It was therefore up to the jury to decide whether the plaintiff was a credible medical historian. The 12 jurors could have chosen to believe her or not. They obviously chose the latter.
Judgment notwithstanding the verdict is improper where reasonable minds might differ as to inferences or conclusions to be drawn from the facts presented. Pasquale v. Speed Products Engineering, 166 Ill. 2d 337, 654 N.E.2d 1365 (1995). Judgment notwithstanding the verdict cannot be entered if there is any evidence, together with reasonable inferences to be drawn therefrom, demonstrating a substantial factual dispute, or where the assessment of credibility of the witnesses or the determination regarding conflicting evidence is decisive to the outcome. Maple v. Gustafson, 151 Ill. 2d 445, 603 N.E.2d 508 (1992). In looking at the evidence adduced at trial, in the light most favorable to the defendant, the jury could have concluded that the plaintiff was not credible.
(1) At trial, plaintiff first denied having prior shoulder pain and testified that the preexisting pain had only been in her neck. She later admitted that she had experienced shoulder pain prior to the automobile accident. (2) There was a dispute between plaintiff and the defendant regarding the nature and severity of the impact. (3) Plaintiff testified that she was leaning forward in the rear seat when her vehicle was struck from behind. She claims that the impact threw her left shoulder into the rear of the driver’s seat in front of her. A reasonable jury might have questioned this based on life experiences. The jury might have found that it was more probable that, rather than being thrown forward from the rear impact, plaintiff would have been drawn back into her seat. (4) The plaintiff testified that, just prior to the accident, she had no idea that she had a preexisting torn rotator cuff or other permanent or chronic shoulder injury. The jury also could have doubted this in light of the fact that the first medical professional she saw after the accident was not a general practitioner or an emergency room physician, but an orthopedic surgeon.
Because the only evidence of either injury or the aggravation of a preexisting injury, according to plaintiff’s own expert, was the plaintiffs subjective complaint of increased pain, we cannot say, as plaintiff urges, that the jury was required to accept her testimony at face value.