There has been recent erosion of the long-standing rule in personal injury actions that evidence of a plaintiff’s prior injury or pre-existing condition is admissible at trial when the prior injury or pre-existing condition involves the same part of the plaintiff’s body at issue. The established rule provides that, with adequate foundation, evidence of a prior injury or condition to the same part of the plaintiff’s body is relevant to both causation and the extent of the plaintiff’s damages. Such evidence may be introduced through cross-examination of the plaintiff or the plaintiff’s retained and non-retained medical witnesses, as well as through testimony of the defendant’s retained medical witnesses.
In the First and Fifth Appellate Districts, a none-too-subtle shift has taken place on this issue. Under the holdings of three recent cases from these districts, evidence of prior injury or pre-existing condition to the same area of the plaintiff’s body is admissible only if the defendant first establishes, with competent medical testimony, a causal connection between the injury at issue and the prior injury or condition. The likely effect of these holdings will be to compel defendants to hire expert medical witnesses in all cases that involve an injury to a previously injured or affected area of a plaintiff’s body, even where they otherwise might not have.
In Lagestee v. Days Inn Management Co., 1999 WL 138458 (1st Dist. 1999), the First District held that the defendant must meet the burden of establishing a causal connection between the prior injury or condition and the complained-of injury, before such evidence becomes relevant. 1999 WL 138458, at pg. 7. The Lagestee case involved a herniated L5-S1 disk in the plaintiff’s spine, alleged to have been caused by a fall at the defendant’s premises. The plaintiff sought recovery of damages for past and future medical expenses, pain and suffering and disability. At trial, the plaintiff offered the testimony of a retained medical opinion witness, Dr. Michael Treister, who testified that the herniation was caused exclusively by the subject accident.
On cross-examination, the defendant questioned Dr. Treister concerning an accident that occurred five years prior to the subject accident in which the plaintiff fell off a loading dock and fractured the third lumbar vertebra at the L3 level. Dr. Treister offered the opinion that the prior injury was unrelated to the L5-S1 disk herniation due to a lack of objective symptoms from the prior injury. The defendant also questioned Dr. Treister concerning another injury to the plaintiff’s low back that occurred four years before the subject accident. Although his records reflected this previous injury, Dr. Treister offered the opinion that this prior injury, as well, was not related to or the cause of the disk herniation at issue in the case.
Following a defense verdict, the plaintiff appealed. The Lagestee court reversed and ordered a new trial, based on the defendant’s questioning of Dr. Treister concerning the prior injuries.
The trial court erred in allowing the defendant’s questioning on the prior injuries, the Lagestee court held, because the defendant did not establish an evidentiary link between the prior injury and the injury at issue. It was not enough that the prior injuries affected the same part of the plaintiff’s body; rather, the defendant had to establish with its own evidence a causal connection between the evidence of prior injuries and the complained-of injury. 1999 WL 138458 at pp. 7-8.
In reaching its decision, the Lagestee court relied on two previous decisions, by the First District in Cancio v. White, 297 Ill. App. 3d 422, 697 N.E.2d 749 (1st Dist. 1998), and by the Fifth District in Brown v. Baker, 248 Ill. App. 3d 401, 672 N.E.2d 69 (5th Dist. 1996). The Cancio case concerned the issue of whether the plaintiff’s pre-existing condition of arthritis in the same part of the body that was injured in the subject accident was the proper subject for cross-examination of the plaintiff’s medical opinion witness. The plaintiff in Cancio sought recovery for medical expenses, as well as for past and future pain and suffering and past and future disability for a C6-C7 disk herniation alleged to have been caused by the subject accident. The plaintiff’s treating physician testified that the plaintiff had pre-existing disk degeneration at C4-5 and C5-6 caused by spondylosis, or arthritis. The doctor further testified that "some of the pressure on the disk was due to some pre-existing arthritis." The Cancio court reversed and remanded for a new trial, holding that without evidence presented by the defendant that there was a causal connection between the pre-existing condition and the injury complained of, the evidence of the pre-existing condition was improperly admitted. 297 Ill. App. 3d at 430, 697 N.E.2d at 755.
In Brown, relied on by both the Lagestee and Cancio courts, the Fifth District held that evidence of a car accident plaintiff’s prior back injury should not have been admitted since the defendant did not show a causal connection between the past and present injuries, in spite of the fact that both injuries affected the same part of the plaintiff’s body. In so holding, the Brown court reasoned that if a prior injury has long since healed and has shown no recurring symptoms, a defendant should not be permitted to introduce evidence of the prior injury without establishing causation. A defendant, the Brown court held, should be held to the same standard applicable to a plaintiff on the issue of causation. "If a plaintiff would be required to present expert testimony on causation, the defendant should also be required to do the same." 284 Ill. App. 3d at 405, 672 N.E.2d at 71. The Brown court, in criticizing the "same part of the body" rule, offered the example of a "curious result" that could arise from that rule:
For instance, a childhood knee injury (falling and bruising a knee) could arguably be admissible in the case of a later alleged knee injury, without any further showing of relevance or causation, even if the prior injury had completely healed and had been symptom free for decades. 284 Ill. App. 3d at 404-05, 672 N.E.2d at 71.
Conspicuously absent from the opinions in Lagestee, Cancio, and Brown, however, are discussions of the foundational requirements established by previous Illinois courts for the introduction of evidence under the "same part of the body" rule. Under those cases, it is unlikely that evidence of a childhood injury in which the plaintiff "bruised a knee" would be admissible in the adult plaintiff’s later suit for a knee injury. Illinois cases have firmly established the rule that a plaintiff’s prior injury is admissible in a personal injury action only where both injuries involved the same area of the body and where there is concurrent evidence admitted of the nature, extent, duration or treatment of the previous injury. Only then, in the discretion of the trial court, may the evidence of prior injury or condition be admitted. In other words, a foundational safeguard is present in the system that would prevent the "curious results" warned of the in the Brown decision.
For example, in Tisoncik v. Szczepankiewicz, 113 Ill. App. 3d 240, 446 N.E.2d 1271 (1st Dist. 1983), the court held that the trial court did not err in excluding evidence of a knee tap performed on the plaintiff’s previously injured knee, since the previous injury took place ten years before the accident at issue, and since there was no evidence that anything other than a single injection was performed as a result of the prior accident. Thus, there was no evidence presented, as a foundational prerequisite to admitting evidence of the prior injury, of the nature, extent, duration or treatment of the prior injury. 113 Ill. App. 3d at 242, 446 N.E.2d at 1273-74.
Also, in the Second District case of Molitor v. Jaimeyfield, 251 Ill. App. 3d 725, 622 N.E.2d 1250 (2d Dist. 1993), the court held that the defendant failed to establish a foundation with an appropriate offer of proof regarding the nature, extent, duration or treatment of the plaintiff’s previous injury. The plaintiff’s admissions that she had previously injured her low back in a fall down stairs and in a separate auto accident was not enough to meet this foundational requirement. Although citing with approval the "same part of the body" rule, the Molitor court held that the defendant could not argue prejudice from the refusal of the trial court to allow introduction of the evidence of the prior injuries due to the lack of foundation for such evidence. 251 Ill. App. 3d at 728, 622 N.E.2d at 1252.
The court in Bailey v. Wilson, 299 Ill. App. 3d 297, 700 N.E.2d 1113 (4th Dist. 1998), criticized the Brown decision, pointing out these foundational safeguards currently in place in connection with the "same part of the body" rule. The Bailey court also pointed out that evidence of prior injuries or conditions to the same part of the plaintiff’s body is germane to both causation and the extent of the plaintiff’s damages. Where a plaintiff is seeking recovery of damages for future pain and suffering and disability, the issue of what effect, if any, a prior injury or condition would have on those elements of damages is relevant. These topics would therefore be the proper subject of cross-examination of the plaintiff’s medical opinion witnesses and the plaintiff himself or herself.
The Bailey court went on to hold that, in the case before it, evidence of the plaintiff’s prior injury was especially relevant because the plaintiff’s prior injury was acquired under similar circumstances only two years before the subject accident and injury. This clearly relevant evidence would be barred under the Brown decision. Thus, by the Bailey court’s reasoning, the better approach to admitting evidence of prior injuries or conditions is to allow such evidence if "relevant"; that is, with the appropriate foundational showing by the defendant of the nature, extent, duration or treatment of the prior injury or condition. Relevance, of course, is an issue for the trial court’s discretion. 299 Ill. App. 3d at 302, 700 N.E.2d at 1117. Finally, the Bailey court criticized the Brown court’s "burden of proof" logic, since the burden is on the plaintiff to prove negligence, not on the defendant to disprove it. Thus, the defendant should not be held to the same standard of proof as the plaintiff. Id.
With the proper foundation, evidence of prior injuries and conditions is relevant for impeaching the credibility of the plaintiff, for impeaching the opinions of the plaintiff’s medical opinion witnesses, and for allowing the jury to determine appropriate damages under traditional causation principles. Whether the proper foundation has been established to make the evidence relevant is a judgment best left to the discretion of the trial judge. While expert testimony proffered by a defendant establishing a causal link between the past injury and present symptoms would increase the weight afforded to the evidence, according to the Bailey court, the "defendant need not establish this link for the evidence to be admitted." Id.
(The opinion in Bailey has not yet been released for publication in the permanent law reports.)
James P. Marsh is an Associate at Momkus, Ozog & McCluskey, Downers Grove. His practice is concentrated in Civil Litigation Defense. He received his Undergraduate Degree in 1983 from Eastern Illinois University and his Law Degree in 1988 from John Marshall. He may be reached at firstname.lastname@example.org.