Admission of Photographs as Evidence Tending to Show Nature and Extent of Injury

While the First District in Cancio anticipated the ruling in Voykin regarding introduction of pre-existing medical conditions, that same Court did find that photographs of the plaintiff’s vehicle were relevant to the nature and extent of a plaintiff’s damages. In Cancio, the photographs were relevant because they showed little or no damage, which was something the jury could consider in determining what, if any, injuries the plaintiff sustained as a result of the accident. The Court found that the admission of such photos was proper for that particular reason. Cancio, 297 Ill.

App. 3d at 433.

In contrast to its ruling in 1998, the First District modified its opinion in DiCosola v. Bowman, 342 Ill. App. 3d 530, 794 N.E.2d 875, 276 Ill. Dec. 625 (1st Dist. 2003). In DiCosola, the plaintiff prevailed in an underlying personal injury action against the defendant resulting from an impact occurring at a parking lot. 342 Ill. App. 3d at 532. One of the issues raised on appeal concerned the testimony or photographs regarding the damage to the plaintiff’s vehicle. The trial court agreed with the plaintiff that any evidence depicting the apparent minimal damage to plaintiff’s vehicle after the collision was irrelevant to any issues before the court. The court determined that absent expert testimony, the evidence was inadmissible to show a correlation existed between the amount of damage to plaintiff’s vehicle and the extent of plaintiff’s injuries. Id. at 543. The Court in DiCosola specifically referenced the Court’s prior ruling in Cancio regarding the admission of photographs as some evidence regarding the nature and extent of the plaintiff’s damages. The Court distinguished Cancio by indicating that case did not create a bright-line relevancy standard. Id. at 534. The DiCosola Court further indicated there was no Illinois case standing for the proposition that photographs showing minimal damage to a vehicle are automatically relevant and must be admitted to show the nature and extent of plaintiff’s injuries. As the trial court was not required to admit the photographic evidence automatically, the Appellate Court rejected the defendant’s argument that prohibiting such evidence was an abuse of discretion. Id. at 535. Fortunately, the Court indicated it was not creating a bright-line rule, but was rejecting one. The decision as to whether or not such photographs are admissible should be left to the discretion of the Court. Id. at 537. The Court further held:

We do not hold that expert testimony must always be required for such photographic evidence to be admissible. We hold that the trial court in this case did not abuse its discretion in requiring expert testimony to show a correlation between the extent of the vehicular damage and the extent of plaintiff’s injuries.

(Emphasis provided by the court.) Id. at 537.

In Ford v. Grizzle, 398 Ill. App. 3d 639, 648, 924 N.E.2d 531, 338 Ill. Dec. 325 (5th Dist. 2010), the Court explained that “[t]he critical question in admitting those photographs into evidence is whether the jury can properly relate the vehicular damage depicted in the photos to the injury

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without the aid of an expert.” There, the court admitted the photographic evidence depicting no damage to the plaintiff’s vehicle where two doctors testified that the plaintiff’s neck injury was pre-existing, and therefore the plaintiff’s post-accident surgery was likely not caused by the accident. Id. Consequently, the Court stated that the photos could have properly been found relevant “to prove that the plaintiff’s injury was more or less probable.” Id.

One scenario in which courts have held expert testimony is not required is when the plaintiff seemingly exaggerates the degree of the impact or speed at which the impact occurred. See Jackson v. Seib, 372 Ill. App. 3d 1061, 866 N.E.2d 663, 310 Ill. Dec. 502 (5th Dist. 2007); Ferro v.

Griffiths, 361 Ill. App. 3d 738, 836 N.E.2d 925, 297 Ill. Dec. 194 (3d Dist. 2005). In Jackson, the plaintiff claimed during an emergency room visit that the defendant rear ended him going approximately 50 mph. 372 Ill. App. 3d 1061. The court then allowed photos of the minimal damage to the plaintiff’s vehicle to be admitted regardless of any expert testimony because the photos showed “it was clear that the plaintiff was not rear-ended at anywhere near the speed he suggested.” Id. at 1071.

Similarly, in Ferro, the plaintiff was the passenger in a van that was rear ended. 361 Ill. App. 3d 738, 739. He claimed the impact was “very heavy, causing his body to move back and forth and hit the oxygen tank” sitting between his legs. Id. at 743. The Court upheld the admission of vehicle photos showing very little damage to either car without requiring expert testimony where the plaintiff claimed a chest injury from the impact with the oxygen tank. Id.

IV. EVALUATING CLAIMS

A chronic pain case is typically a more expensive case to defend, given that there are a number of treating physicians that may have played a role in the plaintiff’s care over time. You have to make sure you obtain complete medical records of the plaintiff, both pre and post accident. In determining how to proceed with claims involving chronic pain plaintiffs, consider the possible stumbling blocks in defending such a case. Relevant questions to ask include: (1) Is liability at issue? (2) What is the value of the claim? (3) Are plaintiff’s complaints truly chronic? (4) What are plaintiff’s complaints with respect to past and future medical, including complaints of pain, treatment, and bills? (5) Is the plaintiff credible?

Plaintiffs will find a doctor who will be inclined to treat subjective complaints of pain.

Accordingly, the typical chronic pain plaintiff has received treatment from numerous physicians over time, none of which want to convey to the plaintiff that their treatment is either unnecessary or that plaintiff simply does not need any additional treatment. Instead, one physician’s care will run its course, and the chronic pain plaintiff will then be referred to another physician.

When handling the chronic pain case, it is necessary to carefully document plaintiff’s history. If the plaintiff’s treating physicians will not correlate prior injuries with the current complaints, a medical expert will likely be necessary to testify at trial to provide the necessary causal

connection to allow for the admissibility of the prior injuries and/or complaints. Similar testimony may be needed to admit photographs. Many times the chronic pain case has medical specials that are disproportionate to the injuries sustained, and it is the goal of the claims professional and outside counsel to work closely together to develop a strategy designed to develop favorable facts so that an attempt at a reasonable resolution can be reached as early as possible.

G-19 Matthew S. Hefflefinger

- Partner

Born in Pennsylvania, Matt began his legal career with Heyl Royster while he was still in law school by clerking with the firm during the summer. Following graduation, he joined the firm in the Peoria office in 1989 and became a partner in 1997. He is the co-chair of the firm's Truck/Motor Carrier Litigation Practice Group.

Matt is an aggressive advocate who has tried many cases to verdict and enjoys the challenges of complex litigation. He handles the defense of personal injury cases primarily focusing upon the trucking and construction industries. Matt is frequently contacted immediately after a catastrophic loss to visit an accident scene and help develop the facts and case strategy with an eye toward a successful result once litigation is filed. Beyond his expertise in trucking and construction matters, he also handles cases touching upon a wide variety of areas including construction delay claims, covenants not to compete, breach of contract, aviation accidents, premises liability, auto accidents and product liability.

Matt has taught a Masters level course in the graduate business program at Bradley University and is a frequent speaker at continuing legal education seminars held across the state addressing a variety of different legal topics.

Matt is a Martindale-Hubbell AV rated lawyer who has remained extensively involved in the community serving on a number of boards of community organizations. He has also been instrumental in founding two local charitable organizations dedicated to, among other things, awarding college scholarships to local high school seniors. Matt has also been recognized as one of Peoria's "40 Leaders Under 40."

Significant Cases

 Morton Community Bank v. Nash-Hasty Investments, Tazewell County, 98 L 133, and NASD Arbitration No. 98-03671 - Represented two stockbrokers against a bank in the successful arbitration of a covenant not to compete before the National Association of Securities Dealers.

 National City Bank of Michigan/Illinois f/k/a N.C. Illinois Trust Company, as Executor of the Estate, 01 L 138, 01 L 171 - Florida airplane crash occurred just after take-off due to a faulty throttle linkage assembly installed just 1.7 flight hours before the accident. The pilot and his wife, along with another couple, all perished in the accident. The maintenance facility settled before suit. The issue was whether the pilot engaged in appropriate measures after the power failure occurred.

Complex case with multi-million dollar demand settled favorably through mediation.

Professional Recognition

 Martindale-Hubbell AV rated

 Selected as a Leading Lawyer in Illinois. Only five percent of lawyers in the state are named as Leading Lawyers

 40 Leaders Under 40 - Peoria, 2000

 Abraham Lincoln American Inn of Court (President 2005-2006)

Professional Associations

 Abraham Lincoln American Inn of Court (Past President)

 American Bar Association

 Defense Research Institute

 Illinois State Bar Association

 Illinois Association of Defense Trial Counsel

 Peoria County Bar Association Court Admissions

 State Courts of Illinois

 United States District Court, Central District of Illinois

Education

 Juris Doctor, Southern Illinois University School of Law, 1989

 Master of Business Administration, Southern Illinois University, 1989

 Bachelor of Science (Magna Cum Laude), Bradley University, 1984

Learn more about our speakers at www.heylroyster.com

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