Peach v. McGovern , 92 N.E.3d 950 ( 2017 )

2017 IL App (5th) 160264
NOTICE
Decision filed 12/12/17. The
text of this decision may be NO. 5-16-0264
changed or corrected prior to
the filing of a Peti ion for
Rehearing or the disposition of
IN THE
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
WILLIAM KEVIN PEACH, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Marion County.
)
v. ) No. 14-L-28
)
LYNSEY E. MCGOVERN, ) Honorable
) Kevin S. Parker,
Defendant-Appellee. ) Judge, presiding.
________________________________________________________________________
JUSTICE CATES delivered the judgment of the court, with opinion.
Justices Goldenhersh and Chapman concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, William Kevin Peach, brought suit against defendant, Lynsey E. McGovern, for
personal injuries he sustained in an automobile accident. The jury returned a verdict in favor of
defendant, and the circuit court of Marion County entered judgment on that verdict. Plaintiff
appeals, contending the jury verdict was against the manifest weight of the evidence, especially
where defendant was adjudged negligent as a matter of law. Plaintiff further asserts that the trial
court erred in allowing defense counsel, over objection, to present evidence pertaining to the
relative amount of damage sustained by the vehicles and argues that there was a direct
correlation between the amount of damage to the vehicles, as depicted in photographs, and
plaintiff’s injuries. We reverse and remand.
1
¶2 The evidence revealed that plaintiff was on his way home around 10 p.m. after visiting
with his girlfriend on the evening of July 17, 2010. As he was driving home, he had to stop at the
intersection of North Shelby Street and East Main Street in Salem, Illinois, to allow traffic to
clear. While waiting at the stop sign, the rear of plaintiff’s 1985 Nissan pickup truck was struck
by another vehicle. Plaintiff testified that even though he had his foot on the brake, his truck was
pushed some 5 to 10 feet into the intersection. When the collision occurred, plaintiff’s head hit
the back window of his truck and his neck began hurting immediately. The vehicle that
rear-ended plaintiff’s truck was a 2001 Mitsubishi Eclipse driven by defendant, who was also on
her way home. Defendant claimed she was fully stopped behind plaintiff, when her foot slipped
off the brake. She further testified that her vehicle simply rolled into the rear of plaintiff’s truck.
Plaintiff, on the other hand, estimated defendant’s speed to have been 20 to 25 miles per hour at
the time of the impact. He also noticed that defendant was on her cell phone.
¶3 After the accident, both plaintiff and defendant got out of their vehicles to inspect the
damage. The back bumper of plaintiff’s truck was dented, and the front bumper of defendant’s
Eclipse was cracked. Defendant was unwilling to call the police or exchange information with
plaintiff. Instead, defendant decided to leave the scene. As she was leaving, plaintiff was able to
get the license plate number from defendant’s car. Plaintiff drove back to his girlfriend’s house
because his neck was hurting so badly. He testified that it was as if somebody suddenly set a
match to his neck. Plaintiff also had a headache and felt like he was in a daze. The girlfriend
testified that plaintiff came back to her house about 15 minutes after he left. Because plaintiff
appeared to be a bit disoriented, and was complaining of a severe headache and neck pain, the
girlfriend indicated she took plaintiff to the emergency room at a nearby hospital.
2
¶4 While plaintiff was in the emergency room undergoing various tests, the police were
contacted so that a police report could be made. Plaintiff gave the license plate number he had
recorded from defendant’s car to the police. When the police contacted defendant, she admitted
she had been involved in a vehicular accident. Defendant was subsequently ticketed for failure to
reduce speed to avoid an accident and pled guilty to the offense.
¶5 Plaintiff testified that since the accident, he has had chronic neck pain. A few days after
the accident, plaintiff visited his regular physician, Dr. Luecha. Plaintiff was given steroids and a
neck brace, and he underwent therapy, but nothing helped with the pain. He was then referred to
Dr. Templer, a pain management specialist in Mount Vernon. Plaintiff underwent an MRI of his
cervical spine in September and began treatment with Dr. Templer in October of 2010. The MRI
revealed that plaintiff was not suffering from degenerative changes that had accumulated over
the years, but rather from more recent injuries, consistent with having been rear-ended in a motor
vehicle collision. Specifically, the MRI showed a straightening of the normal lordosis, consistent
with muscle spasm and pain, and a right disc protrusion at C3-4, with foraminal narrowing on the
right, compression of the right lateral recess, compression of the dural sac, and compression of
the anterior margin of the spinal cord. Plaintiff was diagnosed with cervical sprain or strain,
consistent with whiplash.
¶6 Plaintiff further stated he was suffering from pain radiating down into his right arm and
tenderness in the upper trapezius muscle. He indicated that he still has to rest his neck every
three to four days because of the pain. Plaintiff testified that prior to the collision, he had
experienced no problems with his neck. By the time of the trial, his medical bills had exceeded
$23,000. Plaintiff’s final diagnosis was whiplash syndrome, chronic neck pain, cervical facet
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arthropathy, cervical disc herniation, cervical annular tear, and possible cervical radiculopathy,
cervical foraminal stenosis, and cervical degenerative disc disease.
¶7 Dr. Templer, the pain management physician, testified that with whiplash, the neck
moves beyond its typical range of motion, and the overextension and flexion of the neck is the
mechanism that causes the chronic pain. Dr. Templer noted that even very low speed collisions
can cause hyperflexion/hyperextension injuries. Dr. Templer further opined that the accident
caused the whiplash, annular tear, and loss of integrity of disc space reported in plaintiff’s
medical records.
¶8 Plaintiff also testified that the dented bumper was not the only damage to his truck caused
by the collision. According to plaintiff, a few days after the accident, the brackets on the truck
bed failed. As a result, plaintiff’s vehicle was no longer drivable.
¶9 At the close of the evidence, the court directed a verdict for plaintiff on the issue of
negligence and reserved the questions of causation and damages for the jury. The jury
subsequently returned a verdict in favor of defendant, awarding plaintiff no damages. This
appeal followed.
¶ 10 Plaintiff first argues on appeal that the jury verdict was against the manifest weight of the
evidence. The only evidence of damages and causation came from plaintiff, his girlfriend, and
Dr. Templer. Both plaintiff and his girlfriend testified that plaintiff received medical care and
treatment immediately after being involved in the motor vehicle accident. Both also testified that
ever since the accident, plaintiff was suffering from pain in his neck. The MRI revealed injuries
consistent with whiplash. Dr. Templer also testified that plaintiff’s injuries were consistent with
whiplash. Dr. Templer further stated that low speed impact could cause such injuries.
4
¶ 11 Defendant did not put on any witnesses to contradict plaintiff or the medical evidence.
Instead, during defendant’s closing argument, she relied on photographs to defeat plaintiff’s
claims. As plaintiff points out, defense counsel was allowed, over objection, to present
photographs depicting damage to the two vehicles involved and to argue that plaintiff
exaggerated the impact between the two vehicles in order to relate his neck injuries to the rear-
end collision. While it may have been possible that some other event caused plaintiff’s injuries
and medical findings, there was no substantive evidence introduced during trial to suggest the
occurrence of any such events. Nor was there any testimony, even during cross-examination,
regarding a correlation between the amount of vehicular damage, relative to the speed of the
vehicles involved, and plaintiff’s injuries.
¶ 12 Analysis
¶ 13 We recognize that it is the function of the trial court to determine the admissibility and
relevance of evidence, and its ruling will not be disturbed on appeal absent an abuse of that
discretion. Ford v. Grizzle, 398 Ill. App. 3d 639, 647, 924 N.E.2d 531, 540 (2010). Additionally,
we note 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. Ford, 398 Ill. App. 3d at 648; Ill. R. Evid. 401 (eff. Jan. 1, 2011).
Photographs are used at trial for a variety of purposes. Some require the testimony of an expert
witness, while others may not. The general rule is that a photograph is admissible if it has a
reasonable tendency to prove a material fact at issue in the case. Smith v. Baker’s Feed & Grain,
Inc., 213 Ill. App. 3d 950, 952, 572 N.E.2d 430, 431 (1991). Here, plaintiff filed a motion
in limine to preclude the introduction of the photographs of the vehicles. Plaintiff made no claim
5
for property damage, and the fact of the impact was uncontested. The question then became why
the photographs were relevant, and thus admissible, at all.
¶ 14 During the evidence deposition of Dr. Templer, he indicated that he did not have the
expertise to relate the damage depicted in the photographs to the various medical findings in
plaintiff’s neck, such as the overextension and flexion of plaintiff’s neck, which allegedly caused
plaintiff’s chronic pain, the right disc protrusion of C3-4, with foraminal narrowing, the annular
tear, and the loss of integrity to the disc space. Defendant had no other witness who could testify
that the damage depicted in the photographs did not cause the various injuries testified to by Dr.
Templer. The only evidence regarding the photographs was that they depicted the damage to the
vehicles. While the court initially deferred a ruling on the admissibility of the photographs,
plaintiff’s motion in limine to bar their use was ultimately denied, and the photos were admitted.
¶ 15 When faced with cases involving rear-end collisions between two vehicles, courts often
refer to Fronabarger v. Burns, 385 Ill. App. 3d 560, 895 N.E.2d 1125 (2008), in resolving
whether to admit photographs depicting damage to the vehicles involved in a collision. The court
in Fronabarger declined to accept a rigid rule that photographs depicting damage to the vehicles
were always admissible or that expert testimony was always necessary for such photographs to
be admissible. See Fronabarger, 385 Ill. App. 3d at 564. Rather, according to the court, the
critical question in admitting such 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.
Fronabarger, 385 Ill. App. 3d at 564-65. In reaching this decision, the court in Fronabarger
declined to follow the earlier holding of Baraniak v. Kurby, 371 Ill. App. 3d 310, 862 N.E.2d
1152 (2007), which concluded that, absent expert testimony on the correlation between vehicular
6
damage and a plaintiff’s injuries, photographs of the parties’ damaged vehicles should be
excluded.
¶ 16 Here, while the photographs may have been relevant to allow the jury to infer the relative
speed of the vehicles, there was clearly no evidence at trial relating the damage depicted in the
photographs as the proximate cause of plaintiff’s overextension and flexion of his neck, the
annular tear, the right disc protrusion at C3-4, or the loss of the integrity of plaintiff’s disc space.
Indeed, these kinds of injuries, as described by Dr. Templer, are not within the ken of the
ordinary juror and require the testimony of an expert witness. Therefore, under the circumstances
of this case, we believe the rule expressed in Baraniak is a better view than that adopted in
Fronabarger. We reach this conclusion after noting that the cases relied upon in Fronabarger all
involved evidence from expert witnesses on the very issue of the correlation between vehicular
damage and a plaintiff’s injuries. Even Fronabarger had an expert witness who opined that if a
vehicle does not sustain any evidence of impact, it is therefore likely that the people in the
vehicle are not going to have significant evidence of an impact. Fronabarger, 385 Ill. App. 3d at
563. That expert was proffered by the defendant to relate the lack of vehicular damage relative to
the injuries claimed by the plaintiff. See also Jackson v. Seib, 372 Ill. App. 3d 1061, 866 N.E.2d
663 (2007) (expert relied on photographs of vehicles in order to reach an opinion regarding the
nature and severity of the impact); Ferro v. Griffiths, 361 Ill. App. 3d 738, 836 N.E.2d 925
(2005) (photographs relevant because of expert testimony regarding the nature and extent of
injury). Such is not the case here.
¶ 17 The facts in Baraniak are strikingly similar to those before us. In Baraniak, the plaintiff
was stopped at a red light when the car she was driving was struck in the rear by a car being
driven by the defendant. The plaintiff described the impact as “hard” and claimed that it caused
7
her head to strike the back of her headrest. As a result, the plaintiff immediately complained of a
headache, pain in her neck, and lack of sensation in her hands. She went to the hospital and was
treated and released. Six days later, she saw her personal physician, who diagnosed the plaintiff
with a spinal cord injury and whiplash. The plaintiff sought medical treatment for over a year
and amassed medical bills in excess of $50,000. The defense admitted liability, but challenged
the nature and extent of the plaintiff’s injuries. The defendant offered the testimony of an expert
witness, who indicated that the plaintiff’s injuries were resolved by the time she was discharged
by her first neurosurgeon. The plaintiff offered the testimony of three of her treating physicians
who related her medical treatment and injuries to the accident. The plaintiff argued that it was an
abuse of discretion to allow defense counsel to use the photographs during closing argument to
argue the lack of injury to the plaintiff, as no expert had related the damage illustrated by the
photographs to the nature and extent of the plaintiff’s injuries. The defendant argued that she was
not using the photos to show a lack of damages, but was using the photos to argue which party
was more “credible.”
¶ 18 The Baraniak court held that to allow the use of photos to argue credibility would be an
“end run around the relevancy rule, and photographs of damaged vehicles would always be
admissible in trials of this nature on the grounds that credibility is always an issue. The effect of
such a ruling would be to allow parties to accomplish indirectly what the courts have already
determined is improper absent expert testimony, i.e., to argue or even imply that there is a
correlation between the extent of vehicular damage and the extent of a person’s injuries caused
by an accident.” Baraniak, 371 Ill. App. 3d at 317-18. The Baraniak court recognized the rule set
forth in DiCosola v. Bowman, 342 Ill. App. 3d 530, 794 N.E.2d 875 (2003), that “no Illinois case
stands for the proposition that photographs showing minimal damage to a vehicle are
8
automatically relevant and must be admitted to show the nature and extent of a plaintiff’s
injuries. There simply is no such bright-line rule that photographs depicting minimal damage to a
post-collision vehicle are automatically admissible to prove the extent of a plaintiff’s bodily
injury or lack thereof.” DiCosola, 342 Ill. App. 3d at 535. The court therefore reversed the
judgment of the lower court and remanded for a new trial. Upon remand, the court held that,
absent expert testimony on the correlation between the vehicular damage and plaintiff’s injuries,
the photographs of the parties’ damaged vehicles shall be excluded. We believe this reasoning is
sound in the case before us as well.
¶ 19 Here, the trial court, relying on Fronabarger, denied plaintiff’s motion in limine to bar
use of the photographs at trial. Defense counsel was allowed, over objection, to admit the
photographs of the vehicles and then argue that there was a direct correlation between the
amount of damage to the vehicles and plaintiff’s damages. As previously noted, defense counsel
presented no expert or medical evidence to support his argument. Instead, defense counsel
waited until closing argument to present the photographs to the jury and argue that plaintiff could
not have been injured to the extent claimed because the photos of the vehicles showed minimal
damage. Closing argument is the opportunity for the lawyers to comment on the evidence
introduced at trial. “Comments on the evidence during closing argument are proper if proven by
direct evidence or if reasonably inferable from the facts.” Magna Trust Co. v. Illinois Central
R.R. Co., 313 Ill. App. 3d 375, 396, 728 N.E.2d 797, 814 (2000). Here, defense counsel provided
his own testimony regarding the relationship of the damage depicted in the photographs to
plaintiff’s injuries. Under the circumstances presented here, to allow defendant’s counsel to
make such an argument, wholly unsupported by any evidence, was an abuse of the trial court’s
discretion. We also conclude that the court erred at the outset in failing to grant plaintiff’s motion
9
in limine with respect to the admissibility of the photographs for the purpose of attempting to
relate plaintiff’s injuries to the vehicular damage depicted in the photographs, without expert
testimony to support such an inference. Plaintiff suffered cervical injuries that required the
testimony of a physician expert. Without this expert testimony regarding a relationship between
what was seen in the photos and the injuries suffered by plaintiff, the photographs were simply
not relevant to any issues in the case, and irrelevant evidence is not admissible. DiCosola, 342
Ill. App. 3d at 533-35, 538.
¶ 20 In addition to this abuse of the court’s discretion, we also believe the jury’s verdict is
against the manifest weight of the evidence. Dr. Templer testified that he was not able to
correlate the vehicle damage and plaintiff’s injury, as he was not qualified to make such an
analysis, and not all of the facts that would be necessary to make the calculations were available.
Dr. Templer did opine, however, that a low speed vehicular impact can cause the type of injuries
plaintiff was suffering from and that plaintiff’s injuries were related to the rear-end impact.
Plaintiff’s MRI was consistent with Dr. Templer’s opinion, as was the testimony from both
plaintiff and his girlfriend pertaining to plaintiff’s injuries immediately after the accident. We
therefore conclude that the jury’s verdict in this instance was against the manifest weight of the
evidence.
¶ 21 A verdict is against the manifest weight of the evidence when the opposite result is
clearly evident or where the jury’s findings are unreasonable, arbitrary, and not based on the
evidence. Ford, 398 Ill. App. 3d at 651. Here, the court had found defendant negligent as a
matter of law, but left the issue of causation and damages for the jury. A verdict in favor of
plaintiff on the issues of causation and damages should have followed, given the testimony and
medical evidence presented at trial. From the evidence, it is clear that the jury should have
10
concluded that defendant’s negligence proximately caused plaintiff’s injuries. We find it
unreasonable that any jury, under the circumstances and the evidence presented, would not have
at least awarded recovery for plaintiff’s hospital expenses incurred immediately after the
collision. We recognize that the jury can disbelieve any testimony, at any time, even when
uncontradicted, but we conclude that, in this instance, the jury’s findings are unreasonable and
not based on the evidence presented at trial. We therefore reverse the judgment in favor of
defendant.
¶ 22 Finally, we must address one other issue before remanding this cause back to the circuit
court. Defendant filed a motion to strike plaintiff’s appendix and all related argument pertaining
to the appendix. That motion was ordered to be taken with the case. The appendix consists of
two articles on the relationship between the damage to vehicles and injuries to the occupants of
those vehicles. Neither article was submitted to the trial court as evidence in support of any
argument asserted by plaintiff. Consequently, neither article is part of the record on appeal.
Because the introduction of new evidence on appeal is improper, any evidence that was not
presented to the trial court should not be considered on appeal and should be stricken. People
ex rel. Madigan v. Leavell, 388 Ill. App. 3d 283, 287-88, 905 N.E.2d 849, 854 (2009).
Defendant’s motion to strike that portion of plaintiff’s appendix and any argument in the brief
referencing those articles is therefore granted.
¶ 23 For the foregoing reasons, we reverse the judgment entered by the circuit court of Marion
County and remand this cause for further proceedings. Defendant’s motion to strike, taken with
the case, is hereby granted.
¶ 24 Reversed and remanded; motion to strike granted.
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2017 IL App (5th) 160264 NO. 5-16-0264
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
WILLIAM KEVIN PEACH, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Marion County.
)
v. ) No. 14-L-28
)
LYNSEY E. MCGOVERN, ) Honorable
) Kevin S. Parker,
Defendant-Appellee. ) Judge, presiding.
______________________________________________________________________________
Opinion Filed: December 12, 2017
______________________________________________________________________________
Justices: Honorable Judy L. Cates, J.
Honorable Richard P. Goldenhersh, J., and
Honorable Melissa A. Chapman, J.,
Concur
______________________________________________________________________________
Attorney George R. Ripplinger, Ripplinger & Zimmer, LLC, 2215 West Main
for Street, Belleville, IL 62226-6692
Appellant
______________________________________________________________________________
Attorney Edward L. Adelman, Goffstein, Raskas, Pomerantz, Kraus & Sherman,
for LLC, 7701 Clayton Road, St. Louis, MO 63117
Appellee
______________________________________________________________________________