Evidence and Practice Tips

Transcription

1 Evidence and Practice Tips By: Joseph G. Feehan Heyl, Royster, Voelker & Allen Peoria Trial Court Properly Allowed Defendant to Cross-Examine Treating Physician Regarding Plaintiff s Preexisting Neck Condition In Felber v. London, 346 Ill. App. 3d 188, 803 N.E.2d 1103, 281 Ill. Dec. 482 (2d Dist. 2004), the plaintiff, Dawn Felber brought a personal injury action against the defendant, Kelly London. On February 20, 1999, Felber was stopped at a stop sign when London s car struck her car from behind. Felber described the collision as a huge bang and stated that her body moved forward at the impact. Felber, 346 Ill. App. 3d. at 190. Conversely, London testified that the impact was light and claimed Felber s car did not move forward when it was hit. London further testified that the two cars were still touching after the collision and that she did not notice any damage to either car. Felber was wearing a neck brace at the time of the accident, which was prescribed by Dr. Richard Feeley just a few months earlier, in December After the accident with London, Felber went to the emergency room, where she began to experience pain in the back of her head, neck, between her shoulder blades and low back. A few months later, Felber began experiencing numbness in her fingers, hands and arms. Dr. Feeley had treated the plaintiff for approximately four months before the accident for neck pain and occasional numbness and weakness in her hands and arms. Dr. Feeley testified at his evidence deposition, however, that Felber s condition changed after the accident. Specifically, Dr. Feeley testified that the plaintiff had a nonphysiological ligamentous strain of the upper neck that did not exist before the accident with London. Id. at 191. Dr. Feeley testified that this type of strain occurs with trauma and his diagnosis was consistent with Felber s description of the accident. Dr. Feeley testified to a reasonable degree of medical certainty that the plaintiff s post-accident complaints were directly causally related to the accident. Id. On cross-examination, London questioned Dr. Feeley regarding a November 1998 X-ray of the plaintiff s cervical spine that showed degeneration and early signs of osteoarthritis. Id. at 192. Dr. Feeley characterized this degeneration as minimal disk disease and testified that the degeneration and arthritis will be accelerated and has been accelerated by the collision. Id. Dr. Feeley conceded that the arthritis probably would have progressed even if the plaintiff had not been involved in the accident, but stressed that the arthritis has been accelerated by the trauma that she received from the collision. Id. At trial, the jury found in favor of London and against Felber. On appeal, Felber argued that the admission of evidence of Felber s prior injuries was per se reversible because London failed to present any expert testimony that the preexisting conditions caused any of the current injuries. Felber relied on the Illinois Supreme Court s decision in Voykin v. Estate of DeBoer, 192 Ill. 2d 49, 733 N.E.2d 1275, 248 Ill. Dec. 277 (2000). The Second District Appellate Court conducted a careful review of the Voykin decision and rejected the plaintiff s argument. The appellate court stated: Page 1 of 6

2 Our review of the record leads us to conclude that the evidence in this case is such that the jurors could readily appraise the relationship between the injuries of which Felber complained after the collision and her preexisting injuries without additional expert assistance; thus, the trial court did not abuse its discretion in allowing London to introduce evidence of Felber s preexisting injuries. Unlike the evidence in Voykin, there was specific testimony, from both Felber and Dr. Feeley, regarding the extent of Felber s preexisting injuries and symptoms and the treatments she received in the months, even days, before the collision. Both Felber and Dr. Feeley were specifically questioned about Felber s condition after the collision, and Dr. Feeley testified about the possible effects of the collision on Felber s preexisting condition. This is precisely the type of testimony that obviates the need for additional expert testimony. Unlike the evidence in Voykin, the nature of Felber s prior condition and its possible relationship to her current claim were clearly established. Id. at 193. Trial Court Properly Excluded Surveillance Videotape of Plaintiff In Carroll v. Preston Trucking Co., Nos and , 2004 Ill. App. LEXIS 700 (1st Dist. June 15, 2004), the plaintiff severely injured his left knee when a large piece of equipment struck him while he was working on a truck owned by defendant Preston Trucking Co. ( Preston ). After the accident, plaintiff underwent several surgeries, including a knee replacement. Although the surgeries were successful, the plaintiff continued to complain of severe left knee pain. The plaintiff was told that he could return to light duty work, preferably in a job that did not require standing for long periods of time. The plaintiff also filed a workers compensation claim against his employer, A&G. During discovery, Preston served A&G with a notice to produce all photographs and videotapes. A&G produced a surveillance videotape of the plaintiff. A&G s workers compensation insurance carrier had hired a company to conduct the surveillance in connection with the workers compensation claim. The videotape spanned several days and had been edited. Preston planned to introduce a portion of the videotape that showed the plaintiff in the front and back yards of his home, walking without the assistance of a cane, moving a ladder, bending over, operating a chain saw, using his weight as leverage to remove a tree stump, walking up and down stairs, swinging an ax, picking up and carrying tree branches and pushing a wheelbarrow. The plaintiff s wife, nephew, and niece also appeared in the videotape. Prior to trial, the plaintiff moved to exclude the videotape on the ground that the defendant could not establish an adequate foundation because the surveillance company hired by A&G s workers compensation insurer went out of business and the cameraman who took the videotape could not be identified. Preston argued that they could establish a foundation for the tape through the plaintiff s testimony. The trial court granted the plaintiff s motion to exclude the videotape, agreeing with the plaintiff that Preston could not establish an adequate foundation. Preston again attempted to introduce the videotape at trial to impeach the plaintiff, and the trial court denied Preston s request. The jury returned a verdict in favor of the plaintiff in excess of $3.2 million. On appeal, Preston argued the trial court abused its discretion in excluding the videotape because it could establish an adequate foundation for the video through the plaintiff s testimony. The First District Appellate Court agreed that Preston could have established an adequate foundation through the plaintiff s testimony. The appellate court determined, however, that the trial court had properly exercised its discretion in excluding the videotape because it had been edited prior to being produced in discovery. The court stated: Page 2 of 6

3 Plaintiff argues the trial court correctly excluded the videotape because defendants did not offer foundation evidence from the cameraman. We disagree. The cameraman is not necessary where a foundation can be laid by another competent witness who has sufficient knowledge to testify that the videotape fully represents what it purports to show. (citations omitted.) Because plaintiff was shown in the videotape doing the various tasks alleged, he qualifies as a competent witness with sufficient knowledge to testify that the videotape fully represents what it purports to show. We also note that plaintiff s wife, nephew and niece, who were also in the film, could provide competent foundational testimony sufficient for admission of the videotape into evidence. We believe, however, that the videotape was properly excluded on relevance grounds *** While the videotape here is probative to show the extent of plaintiff s incapacitation and to rebut plaintiff s testimony that he experienced constant pain (citation omitted), the danger of unfair prejudice to plaintiff outweighs the probative value because the videotape was edited. It showed only those short periods of time when plaintiff was actively participating in yard work. The recording stops when plaintiff goes inside his house or leaves the cameraman s range of sight, and gives the impression that plaintiff s activity is constant. Without an unedited span of footage, the jury could be left with the impression that plaintiff can sustain labor-intensive activities over a period of time without rest or without experiencing pain. We conclude it was not an abuse of discretion to exclude the videotape under these circumstances. Id. at *7-10. The Carroll decision demonstrates the importance of producing an entire, unedited version of a surveillance videotape to plaintiff s counsel. Doing so allows both sides the opportunity to introduce into evidence those portions of the videotape that they deem appropriate. Based on the Carroll decision, it is questionable whether a defendant will be allowed to introduce an edited videotape into evidence if the defendant has not produced the entire videotape to the plaintiff. Court Prohibits Plaintiff from Discovering Defendant s Financial Assets in Personal Injury Case In Manns v. Briell, No , 2004 Ill. App. LEXIS 694 (4th Dist. June 9, 2004), the plaintiff Jill Manns filed a negligence action against the defendant Theodore Briell, alleging that she sustained personal injuries as a result of an automobile accident. The plaintiff incurred medical bills of $32, and lost wages of over $20,000. The plaintiff continued to receive medical treatment, including physical therapy. The defendant had automobile personal injury liability insurance limits of $100,000. The plaintiff propounded interrogatories and a request to produce documents on the defendant. The interrogatories contained many of the standard interrogatories approved in Illinois for matrimonial cases and requested detailed information about the defendant s sources of income, real estate holdings, business interests, bank accounts, investments, securities, life insurance policies, retirement accounts, debts, and personal property ownership. The request to produce documents sought copies of the defendant s federal and state income tax returns and all documents indicating his income, real property interests, investments, securities, retirement accounts, and personal property interests. The defendant objected to these discovery requests on the basis the information sought was not relevant or material to any matter at issue in the lawsuit and would not become discoverable unless the plaintiff obtained a judgment that exceeded the limits of the defendant s insurance policy. The Page 3 of 6

4 plaintiff filed a motion to compel answers to the interrogatories and production requests, which sought the financial information and documents. The trial court granted the motion to compel, finding that the information sought in the supreme court-approved matrimonial interrogatories and in plaintiff s request to produce was relevant. The defendant then filed a motion for reconsideration or, alternatively, for a contempt citation and $1 fine for purposes of facilitating an appeal. The trial court denied the defendant s motion to reconsider and granted the defendant s request for a contempt order and fine. On appeal, the plaintiff conceded that the defendant s financial information was not relevant or admissible as to either liability or damages. However, the plaintiff argued that the financial information would assist her in evaluating her claim and formulating a settlement demand. The Fourth District Appellate Court rejected the plaintiff s argument and reversed the trial court s decision. The court stated: Plaintiff argues defendant s financial resources are relevant to how she prepares and evaluates the value of her case, especially for potential settlement.***she contends whether or not defendant has other sources of income or financial resources available impacts her ability to evaluate her case for settlement. Plaintiff s concern is that she could endure a costly, timeconsuming trial to obtain an excess judgment she could not collect. Therefore, she would like to know ahead of time whether it is worth her while to prepare for trial or demand the policy limits and settle for that amount. ***Id. at *8. While we agree such knowledge would be very helpful to a plaintiff, we do not agree she has a right to discover it prior to trial. There are important differences between a liability insurance policy and a defendant s personal financial assets that do not justify extending the holding in Fisher to pretrial discovery of a defendant s financial affairs. The difference between a defendant s financial assets and a liability insurance policy was explained in Fisher, where the court noted that liability insurance exists solely for the purpose of protecting a party injured by the negligence of the policyholder. (Citation omitted.) Certain rights are created by liability insurance policies, bolstered by the laws of this state requiring drivers to have such policies, which inure to the benefit of injured parties. That is the reason those policies are relevant to litigation involving the negligent operation of motor vehicles. As for a defendant s financial assets, a plaintiff only has rights in those after a judgment is entered. Then a plaintiff, because she is a judgment creditor, clearly has an enforceable right in a defendant s assets and may proceed in supplementary proceedings to discover that defendant judgment debtor s assets. (Citation omitted.) ***It is the established public policy in this state to permit pretrial discovery on a defendant s liability insurance policy, but no comparable public policy favors discovery of a defendant s financial assets before a judgment has been entered against him where only compensatory damages are sought. (As defendant concedes, when punitive damage claims are properly in issue, evidence of a defendant s net worth becomes relevant and admissible. (Citation omitted).) It is a normal hazard of all tort litigation that a defendant may not own any assets when he becomes a judgment debtor. To require the pretrial disclosure of a defendant s assets, even as an aid to settlement, would be a serious invasion of privacy. Because no public policy requires disclosure of those assets, a defendant s right to privacy in his financial affairs is paramount. Id. at *14-*16. Page 4 of 6

5 Trial Court Improperly Struck the Affidavit of Plaintiff s Expert Civil Engineer In Thompson v. Gordon, No , 2004 Ill. App. LEXIS 586 (2d Dist. May 21, 2004), the plaintiff s decedent was involved in a fatal motor vehicle collision near the Gurnee Mills shopping center. The plaintiff sued numerous defendants, and alleged that the accident was caused due to improper roadwork at or near the accident site. The plaintiff alleged that the road designers, Jack E. Leisch & Associates Inc. (Leisch) and CH2M Hill, Inc. (CH2M), had a duty to exercise reasonable care in designing the roadway near the accident site and that the failure to do so proximately caused the accident. The defendants Leisch and CH2M moved for summary judgment. In response to the motion, the plaintiff submitted the affidavit of civil engineer Andrew Ramisch. Ramisch is a civil engineer licensed in the District of Columbia. At the time of the summary judgment motion, Ramisch had approximately 30 years of experience in the analysis, design, and construction of roadways. In his affidavit, Ramisch opined that CH2M failed to meet the standard of care in designing the roadway that was at or near the site of the accident. Thereafter, the defendants Leisch and CH2M moved the trial court to strike Ramisch s affidavit, arguing that he was not qualified to render a professional opinion because he was not licensed as a professional engineer in Illinois pursuant to the Illinois Professional Engineering Practice Act of (225 ILCS /1, et. seq.) The trial court conducted a hearing and granted the defendants motion to strike. The trial court later denied the plaintiff s motion to reconsider but granted the plaintiff s subsequent motion for interlocutory appeal pursuant to Supreme Court Rule 308 and certified the following question: Whether Van Breemen v. Department of Regulation, 296 Ill. App. 3d 363, 694 N.E.2d 688, 230 Ill. Dec. 719 *** (2d Dist. 1998) controls the issue of whether a trial court strikes, on motion, the affidavit of an Illinois Supreme Court Rule 213(f) retained opinion witness, retained in a litigated matter in the State of Illinois, where the opinion witness is not licensed in the State of Illinois. Id. at *4. The Second District Appellate Court reversed the trial court s decision to strike the affidavit, and relied upon the Illinois Supreme Court s recent decision in Snelson v. Kamm, 204 Ill. 2d 1, 787 N.E.2d 796, 272 Ill. Dec. 610 (2003). The court stated: In the present case, defendants Leisch and CH2M moved the trial court to strike Ramisch s affidavit, arguing that Ramisch was not qualified to render a professional opinion because he was not licensed as a professional engineer pursuant to the Engineering Act. The record reflects that Ramisch is a civil engineer, licensed in the District of Columbia, with approximately 30 years experience in the analysis, design, and construction of roadways. Licensure with the State of Illinois pursuant to the Engineering Act is not required to render an expert opinion; rather, the witness must be deemed to be an expert, or have the experience and qualifications to assist the trier of fact. See, Snelson, 204 Ill. 2d at 24;... The lack of an Illinois professional engineering license goes to the weight of Ramisch s testimony, not his competency. (Citation omitted.) Thompson, 2004 Ill. App. LEXIS 586 at *14-*15. Page 5 of 6

6 ABOUT THE AUTHOR: Joseph G. Feehan is a partner in the Peoria office of Heyl, Royster, Voelker & Allen, where he concentrates his practice in commercial litigation, products liability and personal injury defense. He received his B.S. from Illinois State University and his J.D. (Cum Laude) from the Northern Illinois University College of Law. Mr. Feehan is a member of the ISBA Tort Law Section Council and is also a member of the Peoria County, Illinois State and American Bar Associations. He can be contacted at jfeehan@hrva.com Page 6 of 6