Category Archives: Evidence

Cundiff v. Patel – Trial Court Erred in Barring Conversation Between Plaintiff and Insurance Adjustor That Would Have Corroborated Complaints of Pain Despite Gap in Medical Treatment

Cundiff v. Patel, 2012 IL App (4th) 120031 (Cook)

Facts:  Plaintiff was injured in a rear end collision in April 2008 and received treatment the following day, but then did not seek chiropractic treatment for his accident related injuries until August 2008.  In the meantime, he saw his primary care physician several times and did not make any complaints relating to his accident related injuries.  Plaintiff sought to admit evidence of his conversation with an insurance adjuster and to admit the adjustor’s activity log where the plaintiff told the adjustor that he was still having pain and intended on seeing a chiropractor.  The trial court barred the conversation and activity log pursuant to a motion in limine filed by the defendant on the basis that it was “self-serving part of settlement negotiations” and inadmissible hearsay.  Plaintiff obtained a verdict where the jury only awarded medical bills from the date after the occurrence but not for the chiropractic treatment from several months later and appealed the trial court’s ruling on the motion in limine.

Holding:  The trial court erred in barring evidence of the conversation because the statement could have been admitted without disclosing the existence of insurance and was not inadmissible hearsay because it was being offered to prove merely that plaintiff made a complaint of neck pain and not for the truth of the matter asserted that he actually had neck pain.

Filed in Trial Book Under:  Hearsay; Evidence – Insurance Coverage; Evidence – Settlement Negotiations; Offer of Proof

Commentary:  This is a case that challenges several assumptions that most trial lawyers make regarding the admissibility of this type of evidence at trial.  Motions in limine on the inadmissibility of insurance coverage and evidence of settlement negotiations are so routine that many attorneys wouldn’t even try to admit the statements.  I admire that the plaintiff’s attorney was so resilient in trying to get this evidence into his case and was also willing to appeal a case that even had the evidence been admitted would still likely result in a relatively small verdict.  The appellate court solves the evidence of insurance coverage by concluding that the foundational issues of the statement could be resolved through a stipulation so that the jury would never know who the adjustor was or that the context of the statement was made during settlement negotiations.  I’m not exactly sure how the mechanics of this would work or whether the trial judge can force the defendant to stipulate in that manner if they were unwilling to do so.  There was another procedural twist to this case in that the plaintiff failed to make an offer of proof at trial, normally a waiver of the issue on appeal, but the defendant failed to raise that issue on appeal.  As a result, the appellate court addressed the issue anyway and concluded that an offer of proof was not required to adequately review the issue because the records was clear as to the basis of the trial court’s finding.  All too often the appellate court will take the waiver as an opportunity to resolve the case in favor of the jury’s verdict, so it’s refreshing to see the court go out of its way to rule on this issue, particularly on such a small case.

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Foreman v. Gunite Corp. – Circumstantial Evidence and Reasonable Inferences from Evidence Proper to Establish Proximate Cause When Plaintiff Unable to Provide Testimony as to Cause of Collision

Foreman v. Gunite Corp., 2012 IL App (1st) 091644 (Lampkin)

Facts:  Plaintiff was a truck driver who was injured when his truck rolled over on the expressway as a result of the load in his trailer shifting.  Plaintiff alleged that the defendant failed to properly load and tie down or secure the items in the trailer.  At his deposition, Plaintiff was unable to recall the incident but did recall that his truck was loaded at half the capacity of the trailer and that the pallets were lined down the middle of the trailer, something that he had never seen before during his career as a trucker.  The police report, supported by an affidavit of the state trooper, provided that “the driver stated while traveling on s/b ramp on I-294 the trailer started leaning to the side.  He lost control striking the sound wall on the right shoulder.”  Another witness provided testimony that the defendant loaded truck in a similar manner, that loading the trailer this way can cause the load to shift, and when he arrived to his location his trailer was leaning so severely that it touched the trailer of he truck docked next to him.  The defendant offered testimony that a truck driver like the plaintiff may inspect the trailer and ask for it to be reloaded if they feel it’s unsafe, and that its internal investigation attributed the cause of the collision as plaintiff’s speed.  The trial court granted defendants summary judgment motion because the “plaintiff could not identify the cause of his accident and there were a number of inferences that could be drawn” as to the cause of the rollover.

Holding:  Summary judgment was improper because there was a genuine issue of material fact as to whether defendant caused the accident by improperly loading the trailer despite plaintiff’s inability to recall the incident because other evidence supported the inference that the likely cause of the collision was the improperly loaded trailer.

Filed in Trial Book Under:  Circumstantial Evidence – Inferences; Hearsay – Excited Utterance

Commentary:  There are numerous circumstances where the plaintiff is unable to testify affirmatively as to how the occurrence took place, often from a traumatic brain injury or death, and therefore the attorney is required to use circumstantial evidence and reasonable inferences from the evidence to establish a theory.  As the opinion points out “proximate cause may be established through circumstantial evidence so long as the circumstances are so related to each other that it is the only probable, and not merely possible, conclusion that may be drawn. Accordingly, where the proven facts demonstrate that the nonexistence of the fact to be inferred appears to be just as probable as its existence, then the conclusion that exists is a matter of speculation, surmise, and conjecture, and the trier of fact cannot be permitted to make the inference.”  Citing Keating v. 68th & Paxton, L.L.C., 401 Ill. App. 3d 456, 473 (2010).  In this case, it seemed pretty clear from the facts that were developed that the loading of the pallets in this manner was a proximate cause of the collision, so it’s somewhat surprising that the summary judgment was granted in the first place.  One part of the opinion that was interesting to me is that the appellate court qualified the plaintiff’s statement to the state trooper as an excited utterance.  I’m not certain what the affidavit of the state trooper included with regards to the plaintiff’s state of mind at the time of the statement, but usually an excited utterance is limited to a pretty short time frame and not everything that is told to a police officer after the collision would necessarily qualify as such.  The opinion doesn’t include the affidavit itself so its hard to know whether the attorney was very thorough in preparing it in order to avoid any hearsay problems, or if the appellate court made a sweeping generalization about the post-occurrence state of mind in order to reach the conclusion it wanted to reach in this case.

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Johnson v. Bailey – Third District Concludes that Trial Court Erred in Admitting Misleading Staged Photographs as Well as Evidence of a Prior Injury Without Expert Testimony

Johnson v. Bailey, 2012 IL App (3d) 110016 (O’Brien)

Facts:  Plaintiff was injured when the defendant struck her vehicle while she was traveling through a gas station lot.  Plaintiff had been injured in a slip and fall several years prior to the automobile collision and continued to see a chiropractor for routine adjustments.  At the scene, plaintiff told the police officer that her back hurt from a previous accident.  At trial, the chiropractor testified that there was no connection between the plaintiff’s pre-existing injuries and those sustained in the automobile collision.  The defendant did not offer any medical testimony establishing a causal connection between the prior injuries and the accident related injuries.  Plaintiff moved in limine to bar the statement to the police officer.  The trial court determined that it was admissible as an admission that plaintiff was not injured in this collision and not evidence of a pre-existing condition.  The defendant also submitted a staged photograph of the scene of the occurrence where he placed vehicles in locations where he believed them to be at the time of the occurrence.  The trial court permitted a staged photograph to be admitted despite the defendant testifying on cross-examination that the other vehicle could have been a few feet further away.  The jury found on favor fo the defendant and plaintiff appealed.

Holding:  (1) Trial court erred in permitting police officer to testify to plaintiff’s comment at scene that she had a prior injury without competent medical evidence to causally connect prior injury to current pain, and (2) trial court erred in admitting photograph that defendant staged to simulate location of vehicles at time of occurrence because it was misleading and prejudicial to the plaintiff.

Filed in Trial Book Under:  Prior Injury, Photographs

Commentary: I think that staged photographs can be very prejudicial because the jury will attach significance to what they have actually seen versus what they are told.  Therefore, if a photograph is going to attempt to recreate some aspect of the case, it must be very accurate or it could be misleading and prejudicial.  Often, the trial court will allow the photograph into evidence with a limiting instruction or simply say that the alleged discrepancy can be elicited on cross examination.  Therefore, in my opinion it’s good to see that the appellate court saw this photograph as prejudicial absent a foundation that they accurately depict the location of the vehicles at the time of the occurrence.   The holding relating to the plaintiff’s statement to the police officer is particularly helpful to plaintiff’s in cases like this.  Obviously, if a plaintiff has a pre-existing injury and they are feeling pain at the scene, they might mention the prior injury to the officer and as a result you see these types of notations in police reports quite often. However, determining whether post occurrence pain is an aggravations or exacerbation of a pre-existing condition or an entirely new injury is complicated and should always require expert testimony to sort out.  Here, the only expert testimony revealed that the pain plaintiff had after the accident was not related, so absent contrary expert testimony from the defendant, the plaintiff’s candid speculation to the police officer should not have been permitted to be used as a trojan horse to admit otherwise inadmissible evidence under the guise of an admission.  This is a good articulation of the requirement of Voykin on prior injuries and will be useful for future cases if there is an arguably unfavorable statement contained within the police report.

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Lambert v. Coonrod – Defendant’s Promise to Plaintiff ‘That He Wouldn’t Have to Pay a Dime in Expenses” Was Inadmissible

Lambert v. Coonrod, 2012 IL App (4th) 110518 (Turner)

Facts:  Plaintiff was assisting the defendant with a project in his shed and while using a coil spool to reach a light above him fell backward and sustained injuries.  Plaintiff alleged that defendant failed to provide him with a safe and stable platform to work and failed to warn him that the spool could be unstable and easily tipped.  After the incident, defendant allegedly told plaintiff at the hospital that he was sorry and he promised that plaintiff would ‘have nothing to worry about’ and that ‘he wouldn’t have to pay a dime in expenses.’  At trial, the defendant filed a motion in limine to bar this statement pursuant to 735 ILCS 5/8-1901(a) and Illinois Rule of Evidence 409.  Plaintiff argued that the statement should be admissible because it was contrary to the defendant’s position at trial and also was not limited to medical expenses and therefore not barred by the Code or Rules.  The trial court disagreed and granted the motion, however, permitted evidence that the defendant said he was sorry.  The defendant also offered a photograph into evidence that was taken one year after the accident and depicted the inside of the shed and the loft where plaintiff was working on the date of the occurrence, but also contained an image of a ladder hanging on the wall.  Plaintiff objected to the admission of the photograph as prejudicial and misleading because the jury could conclude that plaintiff should have used the ladder.  The trial court permitted the photograph because the defendant testified that the ladder was purchased after the occurrence and the jury was told to disregard the contents of the shed and that it was being offered for the limited purpose to show the inside of the shed and location of the loft.  The jury returned a verdict for the defendant and plaintiff appealed.

Holding:  (1) Defendant’s statement was inadmissible under Rule 409 and the clear language of Rule 409 is broad enough to include expenses beyond hospital and medical costs, and (2) the photographs were not misleading or inadmissible.

Filed in Trial Book Under:  Prejudicial Evidence – Offer to Pay Medical Expenses, Photographs

Commentary:  There’s not a whole lot to say about this case.  The trial court was correct in ruling the statement was inadmissible.  Clearly the defendant was referencing medical bills when he made the statement that plaintiff ‘wouldn’t have to pay a dime of expenses” to the plaintiff while the plaintiff was lying in a hospital bed.  Therefore, the section 8-1901(a) clearly applied here.  What’s more significant about this case is the appellate court’s clarification that “the clear language of Rule 409 is broad enough to include expenses beyond hospital and medical costs because Rule 409 states its prohibition is ‘in addition to’ the provisions of section 8-1901. Moreover, Rule 409 excludes evidence of promises to pay “similar expenses occasioned by an injury.”  The photograph was equally admissible.  I was surprised that the plaintiff moved to exclude the photo at all because normally the defendant wants these types of photos excluded as evidence of a subsequent remedial measure.

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