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Civil Practice and ProcedureThe newsletter of the ISBA’s Section on Civil Practice & Procedure

May 2010, vol. 55, no. 9

Fifth District revisits admissibility of vehicle photograph in auto accident litigation for the third time in three years

The Fifth District Appellate Court issued, on March 4, 2010, its third decision in the past three years on the requirements for the admissibility of vehicle photographs in automobile accident cases. The most recent decision is Ford v. Grizzle, 2010 Ill. App. LEXIS 109 (5th Dist. 2010), in which the Fifth District held that the trial court did not err in admitting photographs of the plaintiff’s vehicle collision without expert testimony.

Ford is consistent with the Fifth District’s earlier opinions in Fronabarger v. Burns, 385 Ill. App.3d 560, 895 N.E. 2d 1125 (5th Dist. 2008), and in Jackson v. Seib, 372 Ill.App.3d 1060, 866 N.E.2d 663 (5th Dist.2007), in which the defendant succeeded in each case in having photographs of the plaintiffs’ vehicles admitted into evidence without expert testimony. The bases of the Fifth District’s reasoning in Ford, Fronabarger and Jackson were that the photographs were relevant to the nature and extent of the plaintiff’s injuries and that the jury could assess the relationship between the damage to the vehicles and the plaintiff’s alleged injuries without the aid of an expert.

The Fifth District discussed meticulously the facts of the case in Ford that resulted in defendant’s verdict, apparently in part to support its decision that no expert was required by the defendant to admit the vehicle photographs. The Fifth District also seemed compelled to make an exhaustive recitation of the underlying facts because the plaintiff had been involved in three separate accidents over a period of two years and had been treated for his various injuries from all three accidents over a period of five years with a chiropractor and a neurosurgeon in Illinois, several other healthcare providers in Illinois, a chiropractor in Florida, and a neurosurgeon in Florida before plaintiff resumed treatment again with his original Illinois chiropractor. Also, the plaintiff and the defendant each had retained medical expert witnesses who provided testimony in addition to the testimony of the plaintiff’s treating physicians.

In Ford, the plaintiff filed suit in the Circuit Court of Madison County, Illinois, arising from injuries he incurred as a result of the third accident that occurred on July 12, 2002. The plaintiff claimed the defendant was negligent when he rear-ended plaintiff’s vehicle. As often occurs in such cases, the defendant admitted liability but denied that the plaintiff was injured to the extent claimed.

The plaintiff alleged that while he was stopped in his pickup truck with a hitch on the back the defendant, traveling between 20-25 miles per hour at the time of the collision, moved the truck forward a foot after the impact. The defendant admitted he was distracted, did not see the plaintiff’s stopped truck in front of him and collided into the rear of the plaintiff’s truck at a speed of 15-20 miles per hour.

Evidence adduced at trial indicated that the plaintiff’s truck showed no visible signs of damage from the collision and that the front of the defendant’s vehicle had damage to the grill, headlight, bumper, radiator and fan blade. There was also damage to the front of the defendant’s vehicle prior to the accident in question.

Plaintiff claimed soon after the accident he was sore, but he did not go to the emergency room. Plaintiff had been treating with his chiropractor and other medical doctors from prior automobile accidents that had occurred in December 2000 and June 2002, as discussed in more detail below. He was still receiving treatment for injuries from the June 2002 accident at the time of the July 12, 2002, accident. As noted above, the plaintiff had visited his chiropractor earlier during the day of the July 12, 2002, accident and had another visit with his chiropractor on July 12, 2002, after the third accident occurred.

The first accident that occurred in December, 2000, was the most significant of the three collisions. In this accident, the plaintiff was T-boned by another vehicle traveling at 35 miles per hour and was pushed 35-40 feet as a result of the impact. The plaintiff claimed that he had constant sharp stabbing pain from the accident, including pain radiating down both arms and his back, significant neck pain, and pain in his ranges of motion.

After the accident, he was treated by a family doctor, a neurosurgeon, went to a pain management clinic, received injections, underwent physical therapy and had a nerve-block shot in his neck. An MRI was performed in January 2001 that indicated the plaintiff had degenerative disc disease and a herniated disc at C5-C6. The plaintiff treated with his chiropractor in Illinois until November 2001 when the plaintiff moved to Florida to look for work. When the plaintiff returned to Illinois in early 2002, he continued to experience neck and back pain, so he resumed treatment with his chiropractor, including chiropractic sessions 10 times each month in April, May, and June of 2002.

The second accident occurred in June 2002 when the plaintiff’s vehicle was rear-ended by another vehicle traveling at 25 miles per hour. The plaintiff hit his head on the head-rest and complained of pain to his neck, back, radiating down his arms and mid-back, headaches and pain in his eyes. The plaintiff’s chiropractor took x-rays and testified that they showed the June 2002 accident aggravated the plaintiff’s prior injury in his neck at the C5-C6 level.

After the third accident occurred on July 12, 2002, the plaintiff visited his chiropractor for a second time that day. He complained of neck and back pain, headaches, and pain radiating down his left arm. The chiropractor testified that he believed the July 12, 2002, accident caused an exacerbation of the plaintiff’s prior condition. The chiropractor treated the plaintiff multiple times from July 2002 through August 2003 when the plaintiff moved again to Florida to find work and go to school.

Upon arrival in Florida for the second time, the plaintiff began to treat with another chiropractor until September 2004. During that time, the plaintiff underwent a second MRI in July 2003 that confirmed the prior disc herniation and a muscle strain. In September 2003, the Florida chiropractor referred the plaintiff to a neurosurgeon in Florida. The plaintiff began treatment with the neurosurgeon in October 2003 who made a diagnosis of a disc herniation at C5-C6 with radiculopathy. The neurosurgeon testified that, since conservative measures had failed, the plaintiff was a surgical candidate. The neurosurgeon subsequently performed a cervical fusion on the plaintiff in July 2004.

The plaintiff returned to Illinois after undergoing neck surgery in Florida in July 2004. He resumed treatment with his Illinois chiropractor in September 2004 who continued to treat the plaintiff until January 2005. In August 2005, the plaintiff was evaluated by a neurologist who apparently was a retained expert witness only and who provided no treatment to the plaintiff.

After the Fifth District sorted out the plaintiff’s three automobile accidents and the plaintiff’s rather complicated medical history involving treatment from numerous healthcare providers over five years in two different states, it focused on the opinions of the doctors who testified about plaintiff’s injuries, photographs of the vehicles, and other issues.

The plaintiff’s Illinois chiropractor testified that, when he had seen the plaintiff on the morning of July 12, 2002, before the third accident occurred, the plaintiff had started rehabilitation and was feeling minimal pain. He was of the opinion that the July 12, 2002, accident caused an exacerbation of the plaintiff’s prior condition. He further testified that the plaintiff should not return to heavy labor jobs and that he will likely need to continue with chiropractic treatment for the remainder of his life. The Fifth District noted that, while the Illinois chiropractor had been treating the plaintiff, he had never placed any work or physical constrictions on the plaintiff.

The plaintiff’s Florida chiropractor testified, when asked to compare the MRI in 2001 with the MRI in 2003, that they were similar but that the herniation in 2001 appeared to be minimal compared to the herniation in 2003. He was of the opinion that, if the plaintiff had a chronic condition prior to the July 12, 2002, accident, the subsequent accident could have aggravated the pre-existing injury.

On the other hand, the Florida chiropractor testified that the plaintiff’s two prior accidents could have been significant to the plaintiff’s injury that he was treating him for if the plaintiff had not fully recovered from the injuries caused by the two accidents before the July 2002 accident. The Florida chiropractor was unable to determine what percentage of his treatment with the plaintiff was for the July 2002 accident versus accidents in December 2000 and June 2000. The Fifth District noted that the plaintiff had not initially informed the chiropractor about the two prior accidents.

The Florida neurosurgeon provided testimony that seemed to be of special interest to the Fifth District. He testified that the plaintiff’s need for surgery was causally related to the July 2002 accident, but he also testified that, while treating the plaintiff, he was not aware that the plaintiff had been involved in two prior accidents or had prior chronic pain.

He further testified that, if the plaintiff was experiencing pain from the earlier two accidents, the July 12, 2002, accident would only be an aggravation of the underlying condition and the plaintiff might have been a surgical candidate before the July 12, 2002 accident, occurred.

The Florida neurosurgeon testified, after reviewing the MRIs, that they were essentially the same. Finally, he testified that the damage to the vehicles involved in the July 12, 2002, accident would be relevant in evaluating the plaintiff’s injuries because a person would be more likely to suffer a disc herniation from a high-speed accident than a low-speed accident.

The Florida chiropractor and the Florida neurosurgeon testified that, after the plaintiff’s cervical fusion, the plaintiff’s prognosis was very good, with only limited restrictions but the plaintiff could experience some minor problems or exacerbations in the future.

The defendant retained a neurologist who reviewed the medical records of plaintiff, photographs of the vehicles taken after the collision, and performed an IME on the plaintiff. The defendant’s IME physician testified that the photographs of the vehicles were relevant because the photo of the plaintiff’s vehicle showed no damage and “the general rule in automobile collisions is that the severity of the impact corresponds to the impact on the vehicle’s occupants.” She testified that, after reviewing the two MRIs, there was no significant difference between them and, based on the plaintiff’s prior symptoms, the July 12, 2002, accident did not cause the C5-C6 herniation for which the plaintiff had surgery.

The plaintiff’s retained medical expert witness was a neurologist who reviewed the records, the MRIs and examined the plaintiff. He was of the opinion that the second MRI of 2003 showed a progression of the disc herniation at C5-C6, and that the third accident of July 12, 2002, was a direct cause of the exacerbation of the plaintiff’s injury and the need for the neck surgery.

The defendant’s lawyer scored several points in cross-examination of the plaintiff’s retained medical expert who conceded that the plaintiff had a chronic condition and disc injury in his neck since 2001 and that, if a person with that condition is involved in a rear-end condition, it could exacerbate the pre-existing herniated disc.

Plaintiff’s medical expert agreed after further review of the two MRIs that there was no change in plaintiff’s condition, which could indicate the July 12, 2002, accident had no effect on plaintiff’s neck.

The plaintiff filed a motion in limine to prohibit admission of the vehicle photographs and any argument regarding the minimal impact, claiming that the photographs were highly prejudicial and that no expert had testified about the photographs or the impact of the vehicle. The trial court denied the plaintiff’s motion in limine.

The Fifth District determined that it would review the trial court’s denial of the motion in limine under an abuse-of-discretion standard which means that an abuse of discretion occurs when no reasonable person would take the position adopted by the trial court. The Fifth District noted that it is the function of the trial court to determine the admissibility and relevance of evidence and that evidence is deemed relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. The plaintiff contended that, based on Baraniak v. Kurby, 371 Ill. App.3d 310 (2007), Ferro v. Griffiths, 361 Ill. App.3d 738 (2005), and DiCosola v. Bowman, 342 Ill. App. 3d 530 (2003), absent expert testimony on the correlation between vehicular damage and the plaintiff’s injuries, the photographs of the parties’ damaged vehicles are inadmissible at trial.

The Fifth District rejected plaintiff’s argument, stating that it declined to accept a rigid rule that photographs are always admissible or that expert testimony is always necessary for those photographs to be admissible. Instead, the Fifth District reaffirmed its earlier position set forth in Fronabarger and Jackson, supra, that the critical question in admitting vehicular photographs into evidence is whether the jury can properly relate the vehicular damage depicted in the photos to the injury without the aid of an expert.

On that basis, the Fifth District decided that it could not say that the trial court had abused its discretion in admitting the photographs without expert testimony. The Fifth District supported its opinion by noting that, after reviewing the photographs of the vehicles and the entire proceedings, it found that a jury could assess the relationship between the damage to the vehicles and the plaintiff’s injuries without the aid of an expert.

The Fifth District also rejected plaintiff’s argument that the defendant had not laid a proper foundation to allow defendant’s retained medical expert witness testify about the vehicle photographs. The Fifth District decided that the trial court had not abused its discretion in allowing the defendant’s medical expert witness testify based on the expert’s own testimony about her education, observations, and experiences as a physician and that she had based her opinions on her physical examination of the plaintiff, her review of plaintiff’s medical records, and the lack of damage to the plaintiff’s vehicle as depicted in the photographs.

While the Fifth District’s opinion in Ford seems to simply be a confirmation of its earlier positions set forth in Fronabarger and Jackson, the Ford decision raises some unanswered questions. The Court decided the trial court had not erred in allowing the vehicle photographs to be admitted without expert testimony, but then the Court determined the defendant’s medical expert to be sufficiently qualified as an expert to testify about the vehicle photographs.

The Fifth District seemed to find it important that the defendant’s retained medical expert witness, a neurologist, and the plaintiff’s treating neurosurgeon in Florida both testified about the vehicle photographs and their relevancy to the plaintiff’s alleged injuries. What would the Fifth District’s opinion be in the next case if there is no testimony from any medical doctor about the vehicle photographs and only true lay witnesses rather than doctors testify about them? What circumstances exist involving damage to vehicles and a plaintiff’s alleged injuries that would require testimony from an expert, a medical doctor or some other expert, to have vehicle photographs admitted into evidence? Is this determination based only on the amount of the damage to the vehicles shown in the photographs and the nature and extent of the injuries of the plaintiff or on all of factors as well?

If an expert is required in such a case, is it acceptable to have a medical doctor as in Ford or would an expert have to be schooled in bio-mechanics or other disciplines beyond medicine? Can a nurse, chiropractor or physical therapist give expert testimony on vehicle photographs on the basis that they treat persons injured in automobile accidents just as medical doctors do? So far, Illinois appellate decisions suggest that medical doctors are presumed to always be qualified as an expert on vehicle photographs and how they correlate to a plaintiff’s injuries.

While the Fifth District upheld in Ford, Fronabarger and Jackson the trial court’s decision to admit the photographs of the vehicles without expert testimony, it emphasized each time that it is a matter of the trial court’s discretion whether expert testimony may be required. In each case, the defendant, perhaps as a safety precaution, hired a retained medical physician who had performed an IME on the plaintiff and examined the photographs to testify about the correlation between the minimal property damage to the plaintiff’s vehicles and the plaintiff’s alleged injuries.

As long as there is no “rigid line” adopted by the Fifth District or any other Illinois appellate court indicating when an expert is needed to admit vehicle photographs, in automobile accident cases involving serious injuries defendants will likely take the safe route of simply hiring a medical doctor or other expert to ensure, or at least increase the likelihood, that vehicle photographs will be admitted.

The same may hold true for plaintiffs who want to have photographs of vehicles with major damage admitted in evidence to prove that the plaintiff’s alleged injuries correlate with damage depicted in the photographs. Plaintiffs may be able to rely on testimony from a treating physician but as a precaution may decide to retain an independent medical physician (as the plaintiff did in Ford), a biomechanical expert or other expert, rather than risk having the trial court disallow the photographs.

While the dust seems to have settled for awhile in the Fifth District on the admissibility of vehicle photographs with the Ford, Fronabarger and Jackson decisions, it is important to note that the plaintiff in Ford filed a PLA with the Illinois Supreme Court. The landscape in Illinois courtrooms could change or remain the same on the admissibility of vehicle photographs if the Supreme Court decides to accept the case. As of time of publication of this article, the Supreme Court has not made up its mind to accept the PLA.

Until the Supreme Court weighs in on the issue, lawyers representing plaintiffs or defendants in automobile accident cases have two choices: 1) take the chance at trial attempting to have vehicle photographs admitted without expert testimony, or 2) pay the extra money for an expert to testify about the photographs to eliminate or minimize the risk that the trial court will not admit the photographs in evidence.

Who would have thought 20 years ago that Illinois appellate courts would now be spending so much time on the admissibility of photographs of vehicles in automobile accident litigation? The Illinois Supreme Court may decide enough time has been spent on what had been a dead or unimportant issue and provide lawyers involved in such cases with a “rigid line” or at least sufficient guidelines of when an expert is or is not required to have vehicle photographs admitted into evidence. ■


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