Donnellan v. First Student, Inc.

891 N.E.2d 463 (2008)

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Nature of the Case

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Facts

P's cargo van was rear-ended by D's school bus driven by an employee of D, McClendon. P was 31-years-old on the date of the accident and had no adverse health issues at the time. P was driving his cargo van, which contained various tools and a generator separated from the front seats by a metal cargo cage. P was stopped in the left lane, preparing to make a left turn. P bent down to pick something up, and McClendon rear-ended the van with the school bus. P was hit in the back of the head by either the generator or a power tool that broke through the cargo cage. The van was pushed through the intersection and down into a ditch and rendered inoperable. P sued D and McClendon who was voluntarily dismissed. D admitted liability. At trial, P testified that he was dizzy and had a headache, and a friend drove him home. Later, P felt great pain and continued to have a headache, so he went to the emergency room. P was diagnosed with a cervical strain. Two days later, P returned to the emergency room due to pain in the lower back and neck. P testified to the years of consultations, treatments, and physical therapy along with his headaches and pain and sleep and vision problems and work on regaining mobility. P's wife, a pediatrician, testified how P's leg starting to turn in a few months after the accident until it eventually was turned in at all times. She testified about P's regular headaches, back spasms, vomiting due to pain, and sleep problems. P also complained of double vision and, a result, he no longer reads for enjoyment. She testified that plaintiff suffers serious memory lapses. She also laid the foundation for a “day-in-the-life” video of P of 4.5 minutes with P going to his therapist. D argued that the video was not demonstrative, but substantive medical evidence, and that the audio and video depicted P in pain during his therapy session. D objected to the video as it received the video the day before trial stated and that it had the right to depose the therapist. The court allowed the video and allowed D to depose the therapist. P sought to bar the use of a surveillance video D had taken less than two months before trial. Two days before the case was assigned for trial, D produced a copy of the video. P asserted that the video was produced at such a late date that he was prejudiced by his inability to explore the content of the video with any witnesses. P argued that the videotape was edited from the total film taken and sped up in such a way that it was not an accurate portrayal. The trial court granted the motion to bar the surveillance video at that time to allow an opportunity for the court to review the video. Eventually, after a foundation hearing, the tape was not allowed because the threat of prejudice substantially outweighed the probative value of the video. D's expert witness concluded that P suffered from conversion disorder, a psychiatric condition, and not a brain injury or other medical condition. P got the verdict for $6 million total. D appealed.