First District Addresses Admissibility of Photograph and Prior Injuries

October 2015

In Kayman v. Rasheed, 2015 IL App (1st) 132631, the First District Appellate Court recently upheld a decision of Circuit Court Judge Lynn Egan. The case involved a claim for lost income, admissibility of a photograph of defendant's vehicle and whether prior complaints of back pain could be raised at trial for impeachment purposes.

The case involved a rear-end accident. Janice Rasheed's vehicle struck the rear of Marilyn Kayman's vehicle. The defendant admitted negligence, but disputed the extent to which the 2009 collision caused plaintiff's alleged injuries.

The first issue presented to the appellate court was whether the plaintiff could make a claim for lost wages related to time spent attending physical therapy sessions, even though plaintiff lost no salary. Plaintiff alleged she had "lost the time" spent attending the physical therapy sessions. The trial court found there was no compensable loss of income or benefits and granted the motion. The appellate court held it is well settled there can be no recovery of speculative or unproven damages. They ruled, as plaintiff did not identify any cognizable economic damages arising from the physical therapy sessions, the trial court did not abuse its discretion in precluding the wage loss claim.

The defense attempted to bar admission of a photograph showing significant damage to the front of Rasheed's car. Plaintiff's counsel argued the photograph should be admitted to show it was a very serious accident and to demonstrate the severity of the plaintiff's injuries.

The court held the photograph would not be allowed to demonstrate the severity of Kayman's injuries as it was beyond the ken of the average juror to correlate the property damage to a particular type of physical injury. However, the photograph would be admissible to impeach the defendant's deposition testimony her vehicle was traveling five miles per hour at the time of the accident.

Finally, the appellate court addressed plaintiff's contention evidence concerning her prior complaints of back pain should not be admissible as impeachment evidence. Judge Egan ruled plaintiff had to "pick her poison" as she had denied any prior complaints at her deposition. Both the trial and appellate courts held, according to Voykin v. Estate of DeBoer, S.Ct. 2000, a defendant is required to have expert testimony to support an admission of evidence of a plaintiff's prior injury. However, under Felber, the trial court ruled since Dr. Conroy, her treating physician, had testified to the prior injuries and that the accident aggravated those prior degenerative conditions in her back, this testimony was sufficient to obviate the need for additional expert testimony.

The appellate court did not agree with that ruling, but held the testimony of Dr. Conroy would be admissible for impeachment. The appellate court held plaintiff's denial of these preexisting conditions was a prior inconsistent statement which was admissible for impeachment. The plaintiff testified at deposition and trial she had no history of back complaints. As such, the defense was allowed to impeach her with Dr. Conroy's testimony.

This case demonstrates the importance of getting expert testimony for the purpose of using a photograph in relation to injuries alleged by a plaintiff. In addition, unless plaintiff provides testimony allowing for impeachment, expert testimony is needed to comment on a prior injury to the same body part at issue at trial.

http://illinoiscourts.gov/Opinions/AppellateCourt/2015/1stDistrict/1132631.pdf