Marilyn Kayman was injured in a car crash on Jan. 30, 2009 in which her car was struck from behind by the car driven by the defendant Janice Matthews Rasheed. Kayman went to the emergency room at Hinsdale Hospital shortly after the crash but was discharged the same day. She continued to have neck pain and other symptoms.
Kayman visited her family practice physician on Feb. 4, 2009. She was subsequently referred to an orthopedic surgeon and was treated between 2009 and 2012. At the recommendation of the orthopedic surgeon, Kayman underwent physical therapy and was also prescribed medical devices to use at home to help alleviate her pain.
Kayman filed a lawsuit against Rasheed claiming the accident had caused her neck and back pain, headaches and other symptoms. Rasheed admitted negligence in striking Kayman’s car, but disputed the extent to which the 2009 collision caused Kayman’s alleged injuries.
In a pretrial deposition, Kayman denied any problem with her neck or back before the crash in January 2009. However, the medical records show that Kayman had complained of neck and back pain in January 2005 and May 2006 and in fact underwent an MRI in 2006 as a result of those complaints. In March 2012, Rasheed’s lawyer deposed her treating orthopedic surgeon. This doctor had not been Kayman’s physician at the time of those prior complaints of neck and back pain. When the doctor was shown medical records corresponding to Kayman’s 2005-2006 neck and back pain complaints, he testified regarding those records.
The trial date was continued by the court to allow Kayman more time to complete her discovery obligations, including her disclosure of trial witnesses pursuant to Illinois Supreme Court Rule 213(f). There were several motions in limine regarding the variety of evidentiary issues, including a “day-in-the-life” video which was only disclosed two weeks before the beginning of the trial and thus was barred by the trial judge. In addition, the defendant wanted to preclude admission of a photograph showing significant damage to the front of Rasheed’s car from the impact. The trial judge held that the showing of the damage to the vehicle could only be used to impeach the witness with respect to the traveling speed of the Rasheed vehicle, which was said to be only 5 mph.
With respect to the prior complaints of neck and back pain that Kayman disclosed in deposition, the deposition of the orthopedic surgeon was admissible “for impeachment use only, and its impeachment on [Kayman’s credibility].” In other words, the deposition could be used to show that Kayman was not forthright when asked about neck and back pain at her deposition and was only disclosed by prior medical records.
At the trial, Kayman called a physician employed by the orthopedic surgeon specializing in rehabilitation and pain management. The doctor stated that she had first treated Kayman in November 2010 for neck pain, numbness and tingling, and she opined that it was more likely true than not that the source of Kayman’s pain was the vehicle collision.
In summary, the doctor testified that the degenerative condition that Kayman was seen to have made her more susceptible to injury at the time of the vehicle accident and that the degenerative condition was “probably” aggravated by the accident.
On cross-examination, the same orthopedic surgeon admitted the possibility that pre-existing degenerative changes in Kayman’s spine could be causing some of her pain, regardless of the vehicle accident.
When Kayman testified at trial, she admitted that on the day of the accident, after exchanging contact information with Rasheed and speaking with the police officer, she initially declined medical treatment and went home. However, later that day, she experienced neck pain, headache and nausea. She went to the emergency room at Hinsdale Hospital where x-rays were taken. She spoke with a doctor and was discharged.
On direct examination, Kayman acknowledged that in 2005 and 2006, she had episodes of pain in her neck, which had prompted her to visit her family physician. She recalled that in 2005 she experienced back pain “between my shoulder blades” for 3-6 days after carrying a laptop computer on her shoulder. In 2006, she again had back pain in the same area for approximately 2 weeks; she recalled this injury occurred after “straining with the gardening, carrying flats of flower.” She said that after taking over-the-counter drugs, those pain symptoms resolved. She did not receive any medical attention for back pain between May 2006 and the car crash of January 2009.
After the court ruled on all the motions in limine and any other issues, the case went on to the jury wherein the jury returned a verdict in favor of Kayman in the total amount of $13,244. The jury’s verdict form reflected that it awarded $900 for past pain and suffering and $12,344 for medical expenses incurred. The jury did not award damages for past or future disability, expected future pain and suffering, or future medical expenses. The judgment was entered on the verdict on February 19, 2013. Kayman filed a motion for a new trial which asserted several errors, including the claim that the trial court abused its discretion in precluding her use of medical records in her closing argument.
Separately, Kayman asserted error in the trial court’s ruling that evidence of her prior injury, as described in the orthopedic surgeon’s deposition, would be admissible for impeachment purposes. Kayman argued that pursuant to Voykin v. Estate of DeBoer, 192 Ill.2d 49 (2000), the evidence should have been barred because Rasheed did not provided an “expert witness to testify that the prior pain, injury or treatment had any relevance to the case.” Kayman moved for a new trial based on these errors and others. In addition, Kayman argued that there was an error with the jury and its failure to award damages for future pain, future medical expenses and future disability, which was against the manifest weight of the evidence in light of her treating physician’s testimony. The trial judge denied the motion for a new trial and this appeal was taken.
Although Kayman’s argument that expert testimony was needed to admit the evidence of Kayman’s prior injury, the appeals panel agreed with the trial judge for a different reason. Specifically, although the trial court relied on Felber v. London, 346 Ill.App.3d 188 (2004), where the court concluded there was no abuse of discretion in the admission of evidence of the plaintiff’s prior injuries where “the jurors could liberally appraise the relationship between the injuries of which Felber complained *** and her preexisting injuries without additional expert assistance,” Id. at 193. Specifically, as the Felber jury had heard testimony from plaintiff’s treating physician, “about the possible effects of the collision on Felber’s preexisting condition,” the court concluded that this was “precisely the type of testimony that obviates the need for additional expert testimony” that would otherwise be required under Voykin. Id. The court held that it is well established that apart from relevance or substantive issues, “evidence of a prior inconsistent statement may be admissible for impeachment. Such evidence is not admitted as proof of the truth of the facts stated out of court, but to task doubt on the testimony of the witness by showing this inconsistency ***.”
In this case, had Kayman chose to testify at trial that she had no history of back complaints, the 2005-2006 complaints referenced in the doctor’s deposition would constitute prior consistent statements. Such evidence would impeach Kayman’s credibility, creating a basis for admission independent of the substantive issue of causation. The trial court was correct when it instructed Kayman to “pick her poison”. In other words, she could either deny the 2005-2006 neck and back complaints at trial or admit that she didn’t testify to that but the record showed that she had this history.
In summary, Kayman argued that there was a cumulative effect of the trial court’s alleged errors. “Where the cumulative effect of errors made by a trial court so deprives a party of a fair trial that the verdict may have been affected, a new trial is necessary.” Mueller v. Phar-Mor, Inc., 336 Ill.App.3d 659670 (2000). The Illinois Appellate Court found that there was no trial court abuse of discretion and thus the appeal for a new trial denied by the trial court was affirmed by the appeals panel. The conflict with this Illinois Appellate Court decision with the Voykin Illinois Supreme Court decision was where it was held that prior injury evidence can’t be admitted solely for impeachment. In the Kayman case, the prior injury evidence held to be relevant, the appellate court and trial judge agreed that the medical evidence did not need expert testimony to explain the relevance. Therefore, the Kayman decision doesn’t quite line up with prior decisions, particularly the Illinois Supreme Court in the Voykin case.
Kayman v. Rasheed, 2015 IL App (1st) 132631 (April 27, 2015).
Kreisman Law Offices has been handling automobile accident cases, truck accident cases, motorcycle accident cases and bicycle accident cases for individuals and families who have been injured or killed by the negligence of another for more than 38 years, in and around Chicago, Cook County and its surrounding areas including, Kenilworth, Lake Forest, Lake Bluff, Waukegan, Morton Grove, Niles, Des Plaines, Skokie, Evanston, Wilmette, Chicago (Albany Park, Lincoln Park, Lincoln Square, Rogers Park, Jefferson Park, Wicker Park, Bucktown), Palatine, Palos Park and Flossmoor, Ill.
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