Evidence and Practice Tips

Transcription

1 Evidence and Practice Tips By: Stephen J. Heine Heyl, Royster, Voelker & Allen, Peoria The Admissibility of Photographs in Wrongful Death Claims Introduction Stating the standard for the admissibility of photographic exhibits in wrongful death claims is a simple task. Applying the standard in a fair, logical, and rational manner is more difficult. The plaintiff often wishes to admit into evidence the most gruesome and graphic photographs of the body of the decedent for the stated purpose of explaining to the jury the nature and extent of the injury which caused the death, the force of the impact, or to support a claim for the decedent s pain and suffering under a Survival Act count of the complaint. However, the mere fact that the photographs accurately depict the condition of the plaintiff s decedent at a particular point in time following death does not mean that the photographs are admissible into evidence before the jury. Relevance and Materiality Illinois courts follow the definition of relevant evidence of Federal Rule of Evidence 401 which provides: Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. People v. Monroe, 66 Ill.2d 317, 362 N.E.2d 295, 5 Ill.Dec. 824 (1977); In re Elias, 114 Ill.2d 321, 499 N.E.2d 1327, 102 Ill.Dec. 314 (1986), cert. den., 480 U.S. 907, 107 S.Ct. 1351, 94 L. Ed. 2d 521 (1987). The phrase fact that is of consequence is used as a substitute for the term material and raises the inquiry simply of whether or not a proposition to be established exists in the case as a matter of substantive law. The term relevant describes evidence that renders the proposition to be proved more probably true than not or less probably true than not. See Cleary & Graham s Handbook of Illinois Evidence, (6th Ed. 1994). The first inquiry therefore, even when an accurate photograph of the decedent is offered, is whether or not there is any proposition in the case that is of consequence to the determination of the action and secondly, whether the offered photograph makes that proposition more probable or less probable than it would be without the photograph. Issues in a Death Claim In every suit seeking damages by reason of the demise of the plaintiff s decedent, there will be a claim under the Wrongful Death Act, 740 ILCS 180/1 et seq. There may be claims under the Survival Act, 755 ILCS 5/27-6, and there may be a claim under the Family Expense Act, 750 ILCS 65/15. For purposes of determining whether photographs of the decedent are relevant and material, that is whether the photographs have a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the photographs, it must first be determined what propositions must be proved by the plaintiff. Where there is only a claim under the Wrongful Death Act, 740 ILCS 180/1, the only proposition at issue or fact that is of consequence with respect to the issue of damages is whether the widow and next-of-kin have suffered any pecuniary injuries. Pecuniary injuries means benefits having a monetary value including money, goods, and services received by the next-of-kin of the deceased and includes loss of consortium by a surviving spouse (Elliott v. Willis, 92 Ill.2d 530, 442 N.E.2d 163, 65 Ill.Dec. 852 (1982)); the loss of a minor child s society by the parents (Bullard v. Barnes, 102 Ill.2d Page 1 of 5

2 505, 468 N.E.2d 1228, 82 Ill.Dec. 448 (1984)); the loss of an unmarried adult child s society by the parents (Prendergast v. Cox, 128 Ill.App.3d 84, 470 N.E.2d 34, 83 Ill.Dec. 279 (1st Dist. 1984)); the loss of a parent s society by an adult child (In re Estate of Keeling, 133 Ill.App.3d 226, 478 N.E.2d 871, 88 Ill.Dec. 380 (3d Dist. 1985)); and the loss of a sibling s society (In re Estate of Finley, 151 Ill.2d 95, 601 N.E.2d 699, 176 Ill.Dec. 1 (1992)). The issue then presented where only a claim is made under the Wrongful Death Act is: To what proposition could a photograph of the decedent taken which shows the injuries that led to the death ever be relevant or material? A photograph taken at the scene of the accident or at the morgue or in surgery or at any other time after the occurrence in question should, as a matter of law, never be admissible as to any damages issue where only a wrongful death claim is made. The photograph does not tend to make the existence of any fact that is of consequence to the determination of the suit more probable or less probable than it would be without the photograph. Where the decedent did not have any conscious pain and suffering from the time of the injury to the time of death, there is simply no fact that is of consequence to the determination of the suit to which the photograph relates at all. This of course assumes that no issue exists about the cause of the death of the decedent being from the occurrence itself. Where there is only a claim under the Wrongful Death Act, the precise mechanism of death is not a fact of consequence. Often, plaintiffs will join a claim under the Survival Act, 75 ILCS 5/27-6. Damages recoverable under the Survival Act are for conscious pain and suffering, loss of earnings, medical expenses, physical disability and property damage for the period between the time of the decedent s injuries and the time of death. Murphy v. Martin Oil Co., 56 Ill.2d 423, 308 N.E.2d 583 (1974). The fact that a decedent has suffered for only a short period of time is not a bar to a claim for conscious pain and suffering and the duration of the pain and suffering affects the amount of damages to be awarded and not the right to recover damages as a substantive matter. Glover v. City of Chicago, 106 Ill.App.3d 1066, 436 N.E.2d 623, 62 Ill.Dec. 597 (1st Dist. 1982). With respect to the admissibility of photographs taken of the decedent after the occurrence which show the nature and extent of the injuries sustained, in an action pursuant to the Survival Act, the conscious pain and suffering between the time of the injury and the time of death is a fact that is of consequence to the determination of the action which is rendered more probable or less probable than it is without the photographs. Note, however, that recovery, as a matter of law, may only be had for conscious pain and suffering and no recovery should be allowed where, by definition, while death is not instantaneous, there is no evidence of conscious pain and suffering. Under the Family Expense Statute, 750 ILCS 65/15, a spouse or parent may be liable for medical and funeral expenses and therefore an independent cause of action may be maintained by a surviving spouse or parent for any of those expenses not recoverable under the Survival Act. It is difficult to imagine how photographs of the decedent s body could be relevant to any fact of consequence in such a claim. The Illinois Supreme Court has addressed the admissibility of photographs of the decedent in three decisions in recent years. An analysis of the claims at issue in those decisions is helpful. First, in Bullard v. Barnes, 102 Ill.2d 505, 468 N.E.2d 1228, 82 Ill.Dec. 448 (1984), claims were brought by the parents of a minor decedent seeking recovery under the Wrongful Death Act, the Survival Act and the Family Expense Act as a result of the death of a seventeen year old in an automobile accident. Shortly after the occurrence, two other drivers stopped and viewed the decedent lying on his right side on the seat and asked him whether he was okay. He did not respond, except to shake his shoulders. The decedent s mother then came upon the scene, spoke to her son and observed that he was rubbing his left shoulder although he did not respond. One of the decedent s brothers saw that the decedent s neck was swollen and that blood was dripping from his mouth and that some of the decedent s teeth were lying on the car floor, apparently knocked out by the force of the collision. A deputy sheriff took Page 2 of 5

3 the decedent s pulse and determined that he was still alive, although unconscious. An ambulance arrived and took him to the hospital where he died within a few hours, apparently without regaining consciousness. The plaintiff sought to introduce morgue photographs of the decedent. No liability issues were in controversy because the defendant had admitted liability. The sole objection to the photographs was that the probative value was outweighed by their prejudicial nature. On appeal, defendants also argued that the photographs were inadmissible on the grounds that they did not aid the jury in determining the extent of the decedent s pain and suffering and that they inaccurately depicted his injuries. T he Supreme Court determined that since only an objection that the probative value was outweighed by the prejudicial nature of the photographs was made at trial that all other objections were deemed waived pursuant to Rule 366. The Court held that if a photograph of a decedent has sufficient probative value, it should be admitted in spite of the fact that it might be gruesome or inflammatory and that such a decision normally rests with the discretion of the trial court. The court applied an abuse of discretion standard in ruling that the photographs at issue were not so inflammatory or gruesome as to outweigh their probative value in assisting the jury s determination of the extent of the decedent s pain and suffering. In Drews v. Gobel Freightlines, Inc., 144 Ill.2d 84, 578 N.E.2d 970, 161 Ill.Dec. 324 (1991), the plaintiff widow, individually and as special administrator of the estate of her husband, brought claims seeking recovery under the Survival Act, the Wrongful Death Act and the Family Expense Act. A paramedic who arrived at the accident site described the pain and suffering which the decedent endured during the thirty minute period after the accident when he was being removed from his vehicle. The forensic pathologist who performed an autopsy on the decedent s body testified that he had blunt injuries to his head, trunk and extremities and that there was a laceration on the rear portion of his left thigh, a mangling injury to the right leg, hemorrhaging on and under the surface of the brain, bleeding within the lung and chest, laceration of the liver and numerous fractures to bones throughout the body. He testified that the injuries would cause severe pain and suffering in a conscious person. Over the defendant s objection, the trial court admitted photographs of the accident scene and morgue photographs of the decedent s injuries. The only issue at trial was damages and no evidence was presented concerning the nature of the accident. The plaintiff argued that the photographs taken at the morgue were admissible to support a claim for the decedent s pain and suffering under the survival count of her complaint. One of the photographs showed multiple lacerations to the face and throat and the other showed a gaping wound and burns to the right knee. The defendant argued that the morgue photographs served no useful purpose as they were merely cumulative and prejudicial because there was testimony from the responding paramedic and pathologist concerning the details of the decedent s injuries. The defendant made a similar argument in opposition to the introduction of another photograph which showed the vehicles following the accident. The plaintiff claimed that the photographs of the smashed vehicles were admissible to show the decedent s pain and suffering. Since a Survival Act claim was present, the Supreme Court held that the trial court did not abuse its discretion in determining that the vehicle photographs were relevant to show the extent of the decedent s pain and suffering immediately after the accident and that the morgue photographs, while gruesome, were not so gruesome that the trial court abused its discretion in allowing them into evidence. The Supreme Court reasoned that whether or not a photograph was too gruesome to be admitted was a very subjective decision best left to the trial judge who was best able to determine the possible prejudice of the photographs and that the court could have decided that the probative value of the photographs outweighed their inflammatory and prejudicial effect. Page 3 of 5

4 In Holston v. Sisters of St. Francis, 165 Ill.2d 150, 650 N.E.2d 985, 209 Ill.Dec. 12 (1995), a medical malpractice suit, the plaintiff, a nurse, had undergone gastric bypass surgery in an attempt to reduce her weight. An anesthesiologist had placed a catheter into her right jugular vein to monitor fluids and central venous pressure. At some point, the catheter punctured the plaintiff s decedent s heart and become embedded in the heart muscle. On the afternoon of the surgery, the plaintiff s decedent was observed to have an elevated pulse, marginal urinary output, to be restless, her blood pressure began to fall and she then was said to look extremely anxious and was slow to respond to directions and could barely open her eyes. She was taken for emergency surgery and it was determined that fluid had built up around her heart as a result of the placement of the catheter. During the emergency surgery, anesthetic was not used because of the extreme emergency. However, the plaintiff was unconscious during the surgery and would not have been able to respond to pain at the time. Brain damage was suffered as a result of the build-up of fluid around the heart and the plaintiff s decedent never regained consciousness following the surgery. She lapsed into a coma and died about a week later. Claims were brought under the Wrongful Death Act and the Survival Act. While the Supreme Court s opinion does not refer specifically to photographs of the surgical slashes to the plaintiff s decedent s body, the Court s opinion refers to the slashes more than once and the Court cites Drews for the proposition that photographs of the crashed car were admissible as circumstantial evidence bearing on the extent of the decedent s conscious pain and suffering during the half-hour period following a crash in support of permitting the jury to award damages for disability and for disfigurement despite the fact that the plaintiff never regained consciousness after the emergency surgery. The Supreme Court in Drews cited, but distinguished, Bart v. Union Oil Co., 185 Ill.App.3d 64, 540 N.E.2d 770, 132 Ill.Dec. 848 (3d Dist. 1989), app. den., 128 Ill.2d 661, 548 N.E.2d 1066, 139 Ill.Dec. 510 (1989), app. after remand, 236 Ill.App.3d 964, 603 N.E.2d 77, 177 Ill.Dec. 296 (3d Dist. 1992). In Bart, plaintiff s decedent was killed in an explosion at an oil refinery in Lemont while employed there as a security guard. There was one explosion at 5:52 p.m. and a second explosion and fire at approximately 6:20 p.m. The remains of the plaintiff s decedent were discovered at 9:00 p.m. The plaintiff s decedent was last seen alive at 5:30 p.m. Claims were brought under both the Wrongful Death Act and the Survival Act. The coroner s pathologist testified that the plaintiff s decedent may have survived the first explosion and suffered pain prior to his death, but that it was equally probable that the plaintiff s decedent may have sustained no injury prior to the second explosion. The appellate court held that, as a matter of law, this testimony did not provide a sufficient basis to support the survival claim and that the evidence presented concerning the time period involved must do more than provide speculation that the decedent was conscious and suffered pain relying on Maras v. Bertholdt, 126 Ill.App.3d 876, 476 N.E.2d 599, 81 Ill.Dec. 728 (2d Dist. 1984). The plaintiff sought to introduce photographs of the decedent s badly burned body. The appellate court held that the photographs of the badly burned body were not necessary to show any material facts or conditions and that the photographs and the testimony related to them were far more prejudicial than probative in regard to the death of the plaintiff s decedent. The court noted that the subject photographs were not otherwise admissible except to prove pain and suffering prior to death and that there was no evidence found in the record to substantiate the contention of the plaintiff that the decedent was alive at the time that he sustained burns. The court held that it was error for the trial court to admit the photographs of the decedent s badly burned body because the photos were not probative to any issue. Bart is distinguished by the Supreme Court in Drews in that, in Drews, an eyewitness and a paramedic stated that the decedent was conscious immediately following the accident. It therefore appears that without testimony from a witness that the decedent was conscious immediately following the accident to support a claim for conscious pain and suffering, the photographs would not have been properly admissible. Page 4 of 5

5 Conclusion In order to properly analyze whether photographs of a decedent are admissible, careful focus on the issues actually in dispute is necessary. If liability is not disputed, then the photos cannot be relevant or material (or put another way, cannot have any tendency to make the existence of any fact that is of consequence more probable or less probable) on any liability issue. If the photographs are offered on the issue of damages and there is no claim for conscious pain and suffering between the time of the injury and to the time of death brought under the Survival Act, then the photographs cannot be relevant or material to any issue of conscious pain and suffering because there is no such issue that is of consequence. If there is no testimony from any witness that there was conscious pain and suffering, then the photographs should not be admissible because the jury will never be able to determine from the photographs whether there was any conscious pain and suffering or not and the defendant, pursuant to Bart, is entitled to a directed verdict on the Survival Act claims. All objections to the photographs must be made at the time of trial. Any not specifically made are waived. Objecting on one basis but not on another waives the objection not made. The courts of review deal with the admissibility of post-occurrence photographs as matters of discretion by the trial judge. Only if the trial court is found to have abused its discretion will error be found on appeal. About the Author Stephen J. Heine is a partner in the Peoria firm of Heyl, Royster, Voelker & Allen. He has tried cases in the areas of construction, first party property claims, railroad, products liability, professional liability, trucking and automobile. Mr. Heine received his B.S. from Illinois State University in 1978 and his J.D. from Southern Illinois University in He is a member of several organizations, including the IDC, DRI, National Association of Railroad Trial Counsel, Illinois Appellate Lawyers Association and Peoria County, Illinois State and American Bar Associations. Page 5 of 5