No new trial for man who came up short in first crack at Oak Brook physical therapist over alleged hot pack burns

By Scott Holland | Jan 5, 2018

A man who says an Oak Brook physical therapist burned him with a hot pack will not be getting a new trial after a state appeals panel said a Cook County judge was wrong to overturn a jury’s verdict and potentially give the plaintiff another crack at pressing his claim.

The Illinois First District Appellate Court ruled on an appeal from the ruling by Cook County Circuit Judge Ronald F. Bartkowicz in an unpublished Rule 23 order issued Dec. 29.

Justice Maureen E. Connors wrote the opinion; Justices Joy V. Cunningham and Mathias W. Delort concurred. The order was issued under Supreme Court Rule 23, which restricts its use as precedent, except under very limited circumstances permitted by the Supreme Court rule.

The root issue is a dispute between Martin Perez and Athletico of Oak Park, LLC, and one of its employees, Maureen Schwegman, a doctor of physical therapy, going back to a July 23, 2012, treatment session in which Perez allegedly sustained burns as a result of a heat treatment Schwegman administered with another unknown employee.

The September 2016 trial concluded when the jury returned a verdict in favor of the physical therapist. Perez moved for a new trial, and Bartkowicz granted that motion after determining the jury’s verdict was against the manifest weight of the evidence. Athletico and Schwegman said that ruling was an abuse of discretion and maintained the original jury’s verdict was rooted in sufficient evidence.

Perez grounded his motion for a new trial in allegations of conflicting expert testimony regarding the nature of his burn and said the jury failed to adequately consider all the evidence as presented. Athletico and Schwegman said Bartkowicz’s ordering of a new trial essentially usurped the role of the initial jury.

“This case involved a classic battle of the experts,” Connors wrote, saying Perez was unable to support his assertion the experts agreed on key points, such as whether Schwegman was required to conduct a neurological test of Perez to test his ability to sense pain. Connors spotlighted several areas where Perez’s expert, New York-based James Gallegro, conflicted with Athletico’s expert, Peter McMenamin, a full-time faculty member at Northwestern University Feinberg School of Medicine.

Gallegro said patients should never be placed in the supine position on top of hot packs, whereas McMenamin said it was “common practice” and that he’d never seen evidence to suggest such positioning reduces circulation and convective cooling. Gallegro said heat packs should be checked every five minutes; McMenamin said 10-minute intervals are sufficient. They also disagreed on whether Schwegman was obligated to take the initiative to get Perez to a doctor rather than just suggesting he see his primary care physician.

The main difference, Connors wrote, was differing opinions on if Schwegman’s alleged negligence believably caused Perez’s injuries. She also noted Gallegro had 17 years of physical therapy experience, where McMenamin had 37, saying that in instances of conflicting expert testimony, the jury’s job is choosing which expert made the more convincing case.

“The jury’s verdict should not have been disturbed when there was no evidence the jury did not consider all of the testimony and other evidence presented to it,” Connors wrote, calling Perez’s claim the jury disregarded certain evidence “complete conjecture.”

“Merely because the jury did not find in plaintiff’s favor does not signify a failure to consider all the evidence,’ Connors wrote.

Connors quoted Bartkowicz’s March 30 order granting the new trial in which he wrote it was “unlikely the jury did not weight the testimony of both retained experts. To suggest otherwise is pure speculation.” The panel further said it seemed Bartkowicz himself mischaracterized evidence and possibly misunderstood the law, such as by saying testimony that hot packs are consistent with Perez’s burns is sufficient to infer these packs directly caused the burns in question, or by likening the burns to slowly developing damages from a sunburn, a comparison found nowhere in the trial testimony.

The panel remanded the case with directions to reinstate the original jury verdict.

Perez is represented by the Loizzi Law Offices, of Chicago.

Athletico and Schwegman are represented by the firm of Cray Huber, of Chicago.

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Cray Huber Horstman Heil and VanAusdal LLC Illinois First District Appellate Court Loizzi Law Offices LLC

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Ronald Bartkowicz

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