Allowing Defendant to Present Evidence of Plaintiff's Prior Injuries Without Expert Testimony

The Illinois Appellate Court, Second District, recently held that allowing a defendant in a personal injury case to present evidence of the plaintiff's prior injuries without expert testimony on causation was not reversible error per se. Felber v. London, 803 N.E.2d 1103, 281 Ill.Dec. 482 (2d Dist. 2004).

On February 20, 1999, plaintiff was stopped in her car at an intersection when defendant hit plaintiff's car from behind. Plaintiff filed suit against defendant alleging that defendant's negligence caused her to suffer personal injury and pecuniary loss. During discovery plaintiff disclosed Dr. Richard Feeley as her expert. Defendant missed the deadline for disclosing experts so the trial court barred defendant from disclosing any new medical witnesses. However, the trial court did allow defendant to make disclosures of witnesses who had already been disclosed by plaintiff. Defendant then disclosed that she might call "any and all of the medical witnesses" plaintiff named, and that those witnesses would testify that the plaintiff had suffered from preexisting and permanent injuries before the accident. Defendant asserted that these witnesses would testify that the accident did not aggravate those injuries and was not the cause of plaintiff's alleged injuries.

Prior to trial, plaintiff filed a motion in limine seeking to bar defendant from presenting any evidence regarding a prior accident and any injuries she might have sustained in it. The trial court granted the motion in part and barred defendant from asking any questions regarding any prior auto accidents. However, the trial court allowed defendant to inquire about plaintiff's medical condition from January 1, 1998, to the time of trial.

During the trial, there was testimony about plaintiff's medical condition before the 1999 accident, and plaintiff's physician testified that he treated plaintiff before the 1999 accident but that the injuries he treated plaintiff for after the accident were causally related to the collision. On cross-examination, plaintiff's physician was asked about an x-ray from November 1998 that showed that plaintiff had degeneration of the cervical spine and "early signs of osteoarthritis." The jury subsequently found in favor of defendant and plaintiff appealed.

On appeal, plaintiff argued that the admission of evidence of a plaintiff's prior injuries is per se reversible error when the defendant fails to present expert testimony that the prior injuries caused the current claimed injuries. Plaintiff relied on Voykin v. DeBoer, 192 Ill.2d 49, 733 N.E.2d 1275 (2000), in support of her argument. The appellate court rejected plaintiff's argument and affirmed. The court concluded that the evidence was such that the jurors could readily appraise the relationships between the injuries of which plaintiff complained after the accident and her preexisting injuries without additional expert assistance. 346 Ill.App.3d at 193, 803 N.E.2d at 1107. Therefore, the trial court did not err in permitting defendant to introduce evidence of plaintiff's preexisting injuries. Id. The court recognized that, unlike in Voykin, there was specific testimony from both plaintiff and her physician, regarding the extent of plaintiff's preexisting injuries and symptoms and the treatments that she received before the accident. Id. The court found that this was precisely the type of testimony that obviates the need for additional expert testimony. Id. "The jury was free to make its own determination, in light of both parties' description of the collision, whether the collision caused, or contributed to, [plaintiff's] current condition." Id.