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Supreme Court Date: 2019.09.03
15:00:40 -05'00'
Peach v. McGovern, 2019 IL 123156
Caption in Supreme WILLIAM KEVIN PEACH, Appellee, v. LYNSEY E. McGOVERN,
Court: Appellant.
Docket No. 123156
Filed January 25, 2019
Decision Under Appeal from the Appellate Court for the Fifth District; heard in that
Review court on appeal from the Circuit Court of Marion County, the Hon.
Kevin S. Parker, Judge, presiding.
Judgment Appellate court judgment reversed.
Circuit court judgment affirmed.
Counsel on Edward L. Adelman, Robert M. Susman, and Lori R. Koch, of
Appeal Goffstein, Raskas, Pomerantz, Kraus & Sherman LLC, of St. Louis,
Missouri, for appellant.
George R. Ripplinger, of Ripplinger & Zimmer, LLC, of Belleville,
for appellee.
Martin K. Morrissey and Michael J. Bedesky, of Reed, Armstrong,
Mudge & Morrissey, P.C., of Edwardsville, and Steve Grossi, of Bruce
Farrel Dorn & Associates, of Chicago, for amicus curiae Illinois
Association of Defense Trial Counsel.
Justices JUSTICE NEVILLE delivered the judgment of the court, with
opinion.
Chief Justice Karmeier and Justices Thomas, Kilbride, Garman,
Burke, and Theis concurred in the judgment and opinion.
OPINION
¶1 Plaintiff William Kevin Peach, a motorist whose vehicle was rear-ended, sued the other
driver, defendant Lynsey E. McGovern, in the circuit court of Marion County for personal
injuries he sustained in the accident. The jury returned a verdict in favor of defendant, and the
circuit court entered judgment on that verdict. The appellate court reversed and remanded for
a new trial on damages, holding that the circuit court erred in allowing admission of
postaccident photographs of the vehicles absent expert testimony and that the jury verdict was
not supported by the evidence. 2017 IL App (5th) 160264. This court allowed defendant’s
petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Nov. 1, 2017). For the following reasons, we
reverse the judgment of the appellate court.
¶2 I. BACKGROUND
¶3 Plaintiff brought a claim for injuries alleging that defendant was negligent when she rear-
ended his vehicle, thereby causing injury to plaintiff’s neck. The following evidence was
adduced at the jury trial.
¶4 On July 17, 2010, at approximately 10 p.m., plaintiff was on his way home from visiting
his girlfriend, Nicole Carter. As he was driving his 1985 Nissan pickup truck, he had to stop at
a stop sign at North Shelby Street and East Main Street in Salem, Illinois. While waiting at the
stop sign for traffic to clear, the rear of plaintiff’s truck was struck by defendant’s vehicle.
Plaintiff testified that, when the collision occurred, his head hit the back window of his truck
and his neck began hurting immediately.
¶5 The vehicle that rear-ended plaintiff’s truck was a 2001 Mitsubishi Eclipse driven by
defendant, who was also on her way home. Defendant, testifying as an adverse witness, stated
that she saw plaintiff stopped at a stop sign. She then fully stopped behind plaintiff’s truck.
Defendant testified that she “spaced out” and let her “foot off the brake just a little bit, [and]
tapped into his truck.” She never pressed the gas pedal once she had stopped.
¶6 After the accident, both plaintiff and defendant got out of their vehicles to inspect the
damage, and eventually both walked away from the collision. Plaintiff testified that his back
bumper was dented and “it looked like defendant’s front end was cracked a little bit.”
Defendant testified that the license plate on her car was bent. Although the front bumper of
defendant’s car had a crack, it was never determined if the accident caused this crack. Both
plaintiff and defendant testified that the photographs taken of their respective vehicles
subsequent to the accident were accurate representations of the condition of their vehicles
immediately after the accident. The photos reflected minor damage to both vehicles. All of the
photos were admitted into evidence, over plaintiff’s objections.
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¶7 Plaintiff testified that defendant was unwilling to call the police or exchange information.
Instead, defendant left the scene. However, plaintiff was able to get her license plate number.
Plaintiff drove back to Carter’s residence because his neck was hurting, he had a headache,
and he felt as if he was in a daze.
¶8 Carter testified that plaintiff came back to her home about 15 minutes after he had left. He
appeared to be disoriented and was complaining of “a severe headache and a lot of pain.” She
testified that plaintiff stated he had been “plowed” into and that defendant was on her cell
phone. Carter drove plaintiff to the emergency room of the Salem Township Hospital in Salem,
Illinois. She testified that, 5½ years after the accident, plaintiff still complained of neck pain
and once or twice every other day he would take Tylenol and lie down to alleviate the pain.
¶9 Plaintiff testified that, while he was in the emergency room, the staff put him in a neck
collar and put him on a backboard. The staff did blood work and various tests. The staff also
contacted the police so that an accident report could be made.
¶ 10 Plaintiff testified that since the accident occurred he has experienced chronic neck pain. A
few days after the accident, plaintiff sought treatment from his family physician, Dr. Luecha
Rutngamlug. Plaintiff was given steroids and a neck brace, but nothing helped. Plaintiff
underwent a magnetic resonance image (MRI) of his cervical spine on September 16, 2010.
He was referred to Dr. Michael Templer, a pain management specialist at the Orthopaedic
Center of Southern Illinois in Mount Vernon. Plaintiff further testified that even now, six years
later, he still has neck pain and every three to four days he has to rest because of the pain. He
also testified that at the time of trial his medical bills exceeded $23,000. Regarding plaintiff’s
vehicle, he testified that as a result of the accident, three or four days after the accident, the
brackets on his truck bed failed and the truck was thereafter no longer drivable.
¶ 11 Dr. Templer’s testimony was presented in an evidence deposition. He was board certified
in anesthesiology and pain management. Dr. Templer testified that he began seeing plaintiff
on October 5, 2010, three months after the accident. Plaintiff had filled out a preexamination
form in which he stated that his chief complaint was neck pain as the result of being rear-ended
in a car accident with the estimated speed of impact at 25 to 30 miles per hour. At that first
meeting, Dr. Templer did a physical examination of plaintiff and found “some tenderness in
his upper trapezius muscle, splenius capitis, paraspinal region.” Dr. Templer explained that
plaintiff had tenderness throughout his entire neck.
¶ 12 Dr. Templer also reviewed the MRI provided by plaintiff, which revealed that plaintiff was
suffering from some degenerative changes that had accumulated over the years but also from
more recent acute injuries. Specifically, the MRI showed a straightening of the normal cervical
lordiosis, which is consistent with neck muscle spasm and pain, moderate right stenosis
foraminal narrowing that could give a person some pain into the right upper trapezius muscle,
and compression of the nerves in the spinal cord. Plaintiff also had cervical sprain or strain,
which is consistent with a whiplash injury. Dr. Templer prescribed a tapering dose of steroids,
an anti-inflammatory medication, and recommended a medial branch block injection, which
would numb the nerves. The branch block was administered on November 11, 2010. Neither
of these treatments helped plaintiff’s neck pain. The last time Dr. Templer saw plaintiff was
on December 2, 2010, when plaintiff was offered a second medial branch block or an epidural
injection. He declined both.
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¶ 13 Dr. Templer’s final diagnosis was “[w]hiplash syndrome, chronic neck pain, cervical facet
arthropathy, cervical disc herniation, possible cervicogenic pain, cervical annular tear, and
possible cervical radiculopathy, cervical foraminal stenosis, and cervical degenerative disc
disease.” He opined that the accident caused whiplash and may have caused an annular tear
and loss of integrity of disc space. He explained 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. He stated that even a low-speed collision can cause
hyperflexion/hyperextension injuries.
¶ 14 On cross-examination, after defense counsel asked if photos showing minor damage would
have any effect on his diagnosis, Dr. Templer responded that he could not answer the question
because it was not his expertise, as he was not a mechanical engineer. He stated that he was
not “an expert in determining the damage done by a vehicle.” He explained that he was relying
on what plaintiff told him and the objective findings in the MRI. In answer to the question
whether the findings in his diagnosis could have been caused by the accident he responded,
“Yes.” Over plaintiff’s objections, in response to the question whether they might not have
been caused by this accident, he responded, “Yes. That’s true. It might not have been caused
by the accident.” Dr. Templer was also asked if some other event could have caused the
findings, and he answered that “a lot of things could have happened” but he did not know of
anything.
¶ 15 Garland Simmons, a sergeant with the Salem Police Department, testified that he was
dispatched to the hospital where he spoke with plaintiff. Sergeant Simmons made an accident
report and checked the vehicle registration of the license plate number he was given by
plaintiff. He subsequently contacted defendant, and she admitted she had been involved in a
vehicular accident. Defendant was ticketed for failure to reduce speed to avoid an accident and
pled guilty to the offense. Sergeant Simmons further testified that plaintiff informed him there
was minimal damage to both vehicles.
¶ 16 Defendant did not put on any witnesses. At the close of the evidence, the circuit court
directed a verdict for plaintiff on the issue of negligence but reserved the questions of causation
and damages for the jury. The jury subsequently returned a verdict in favor of defendant,
awarding plaintiff zero damages. The circuit court denied plaintiff’s motion for a new trial on
the issue of damages and defendant’s liability for those damages.
¶ 17 On appeal, plaintiff raised two issues. He contended that the court erred in allowing defense
counsel to argue there was a correlation between the amount of damage to the vehicles as
depicted in the photographs and plaintiff’s injuries, absent expert testimony, and the verdict
was against the manifest weight of the evidence. The appellate court agreed with plaintiff and
reversed the circuit court. 2017 IL App (5th) 160264.
¶ 18 The appellate court reasoned that
“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.” Id. ¶ 16.
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¶ 19 The appellate court concluded that, where the injuries were as complicated as plaintiff’s
and the expert opined that such injuries could occur in low-impact collisions and that he did
not have the expertise to make the correlation between impact and injury, expert testimony was
required before the photos would be relevant and admissible. Id. ¶¶ 16-19. The appellate court
explained that the circuit 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 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.” Id. ¶ 21.
The court remanded for a jury trial on the issue of damages, with the minimum to cover
plaintiff’s hospital expenses. Id. ¶ 23.
¶ 20 Defendant appeals to this court. The Illinois Association of Defense Trial Counsel was
granted leave to submit an amicus curiae brief in support of defendant. Ill. S. Ct. R. 345 (eff.
Sept. 20, 2010). Additional pertinent facts will be discussed in the context of the issues raised
on appeal.
¶ 21 II. ANALYSIS
¶ 22 Before this court, defendant argues that the appellate court erred on three grounds: (1) by
reversing the circuit court’s admission of postaccident vehicular photographs without requiring
expert testimony, (2) by reversing the circuit court’s denial of plaintiff’s motion for a new trial,
and (3) by essentially entering a judgment notwithstanding the verdict while applying an
incorrect standard of review.
¶ 23 A. Admissibility of Postaccident Vehicular Photographs
¶ 24 Defendant argues that the appellate court erred in reversing the circuit court’s admission
of postaccident vehicular photographs without requiring expert testimony. According to
defendant, since the circuit court found the postaccident vehicular photographs relevant, it did
not abuse its discretion in admitting the same without expert testimony interpreting the photos.
Plaintiff responds that the photos were irrelevant to any issues in this case because Dr. Templer
testified that plaintiff’s injuries could occur even in a low-speed collision. Plaintiff contends
that, because speed was not determinative of what caused his injuries, the photos indicating
minor damage to the vehicles were irrelevant. We disagree with plaintiff.
¶ 25 It is within the discretion of the circuit court to decide whether evidence is relevant and
admissible, and a reviewing court will not disturb the circuit court’s decision absent a clear
abuse of that discretion. In re Marriage of Bates, 212 Ill. 2d 489, 522 (2004). An abuse of
discretion occurs only where no reasonable person would take the position adopted by the
circuit court. Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 177 (2003).
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¶ 26 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 probable or less probable than it
would be without the evidence. Ill. R. Evid. 401 (eff. Jan. 1, 2011). “Relevancy is ‘tested in
the light of logic, experience and accepted assumptions as to human behavior.’ ” Voykin v.
Estate of DeBoer, 192 Ill. 2d 49, 57 (2000) (quoting Marut v. Costello, 34 Ill. 2d 125, 128
(1965)). Under Illinois Rule of Evidence 402 (eff. Jan. 1, 2011), all relevant evidence is
admissible except as otherwise provided by law.
¶ 27 In general, photographic evidence is admissible if it has a reasonable tendency to prove or
disprove a material fact at issue in the case but may be excluded when irrelevant or immaterial
or if its prejudicial nature outweighs its probative value. Johnson v. Bailey, 2012 IL App (3d)
110016, ¶ 13. In deciding the admissibility of postaccident vehicular photographs, once a
proper foundation has been laid (People v. Taylor, 2011 IL 110067, ¶ 32; Johnson, 2012 IL
App (3d) 110016, ¶ 13), the circuit court must determine whether the photos make the resulting
injury to the plaintiff more or less probable and whether the photos may be relevant with regard
to impeachment (Ill. R. Evid. 401 (eff. Jan 1, 2011); see also Marut, 34 Ill. 2d at 128).
¶ 28 Here, the appellate court relied on Baraniak v. Kurby, 371 Ill. App. 3d 310 (2007), and
DiCosola v. Bowman, 342 Ill. App. 3d 530 (2003), for the proposition that, absent expert
testimony connecting the vehicle damage depicted in postaccident photographs to the
plaintiff’s injuries, such photographs are not relevant and, therefore, not admissible. 2017 IL
App (5th) 160264, ¶¶ 15-16, 18-19. In support of that proposition, Baraniak cited DiCosola,
which cited this court’s decision in Voykin, 192 Ill. 2d 49.
¶ 29 We find that, in the context of those cases, reliance on Voykin was misplaced. In Voykin,
the controlling issue was whether a defendant must introduce medical or other competent
evidence of a causal relationship between a plaintiff’s prior injury and the present injury. Id.
at 51. Resolution of that issue focused on the validity of the “ ‘same part of the body rule,’ ”
which permitted a defendant to introduce evidence that the plaintiff had previously suffered
injuries similar to those at issue. Id. at 53. Under that doctrine, evidence of a prior injury was
admissible without a showing that it was causally connected to the present injury, provided
both injuries affected the same part of the body. Id.
¶ 30 This court rejected the doctrine, noting that it was “nothing more than a bright-line
relevancy standard.” Id. at 57. The court explained that relevancy is not an inherent
characteristic of any item of evidence but exists only as a relation between an item of evidence
and a matter properly provable in the case. Id. The Voykin court instead decided that, for
evidence of a plaintiff’s prior injury to be admissible, the prior injury must make the existence
of a fact that is of consequence more or less probable. Id. The Voykin court pointed out that
“ ‘[j]urors are not skilled in the practice of medicine.’ ” Id. at 58-59 (quoting Walski v.
Tiesenga, 72 Ill. 2d 249, 256 (1978)). The court further explained:
“Without question, the human body is complex. *** In most cases, the connection
between the parts of the body and past and current injuries is a subject that is beyond
the ken of the average layperson. Because of this complexity, we do not believe that,
in normal circumstances, a lay juror can effectively or accurately assess the relationship
between a prior injury and a current injury without expert assistance. Consequently, we
conclude that, if a defendant wishes to introduce evidence that the plaintiff has suffered
a prior injury, whether to the ‘same part of the body’ or not, the defendant must
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introduce expert evidence demonstrating why the prior injury is relevant to causation,
damages, or some other issue of consequence. This rule applies unless the trial court,
in its discretion, determines that the natures of the prior and current injuries are such
that a lay person can readily appraise the relationship, if any, between those injuries
without expert assistance.” Id. at 59.
¶ 31 Because Voykin was predicated on the admissibility of evidence of the plaintiff’s prior
injury, it is factually distinguishable from both Baraniak and DiCosola, which did not involve
prior injuries. DiCosola improperly applied Voykin’s reasoning to the relationship between
vehicular damage and the nature and extent of a plaintiff’s personal injuries (DiCosola, 342
Ill. App. 3d at 536-37), and Baraniak did the same (see Baraniak, 371 Ill. App. 3d at 317-18
(citing DiCosola)). Thus, DiCosola and Baraniak extended Voykin beyond its reasonable
limits. Accordingly, to the extent that those appellate court cases are inconsistent with the
analysis set forth below, they are overruled.
¶ 32 Here, as in Baraniak and DiCosola, there is no prior injury involved. This is not a case
where jurors must determine whether there is a connection between the plaintiff’s past and
current injuries. Given that factual distinction, there is no common thread connecting the
reasoning in Voykin to this case.
¶ 33 In light of the above, we find it necessary to clarify the law governing the admissibility of
postaccident vehicular photographs. We conclude that the proper analysis is that expressed by
the appellate court in Ford v. Grizzle, 398 Ill. App. 3d 639 (2010), Fronabarger v. Burns, 385
Ill. App. 3d 560 (2008), Jackson v. Seib, 372 Ill. App. 3d 1061 (2007), and Ferro v. Griffiths,
361 Ill. App. 3d 738 (2005).
¶ 34 In each of these cases, the plaintiff sought recovery for injuries allegedly sustained in an
automobile collision and asserted that postaccident photographs of the vehicles were not
admissible unless expert testimony was presented to show a correlation between the amount
of vehicular damage and the plaintiff’s injuries. Ford, 398 Ill. App. 3d at 648; Fronabarger,
385 Ill. App. 3d at 564; Jackson, 372 Ill. App. 3d at 1070; Ferro, 361 Ill. App. 3d at 742. The
appellate court refused to adopt a rigid rule that photographs of the vehicles involved in a
collision are always admissible or that expert testimony is always necessary for such
photographs to be admitted. Ford, 398 Ill. App. 3d at 648; Fronabarger, 385 Ill. App. 3d at
564; Jackson, 372 Ill. App. 3d at 1070; Ferro, 361 Ill. App. 3d at 743.
¶ 35 The decision in each case observed that the essential question in deciding the admissibility
of vehicular photographs is “whether the jury can properly relate the vehicular damage
depicted in the photos to the injury without the aid of an expert,” which is an evidentiary
question that must be resolved by the trial judge. Ford, 398 Ill. App. 3d at 648; Fronabarger,
385 Ill. App. 3d at 564-65; Jackson, 372 Ill. App. 3d at 1070-71; Ferro, 361 Ill. App. 3d at
743. The appellate court held in each case that it could not conclude that the trial court had
abused its discretion by admitting vehicular photographs in the absence of expert testimony.
Ford, 398 Ill. App. 3d at 648; Fronabarger, 385 Ill. App. 3d at 565; Jackson, 372 Ill. App. 3d
at 1071; Ferro, 361 Ill. App. 3d at 743.
¶ 36 We find that the reasoning of the appellate court in Ford, Fronabarger, Jackson, and Ferro
correctly illustrates the application of the rules for the admission of postaccident vehicular
photographs without expert testimony.
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¶ 37 Turning to the admission of the postaccident vehicular photographs in the case at bar, the
appellate court reasoned that, where the injuries were as complicated as plaintiff’s and his
treating doctor testified that they could occur in low-impact collisions and that he did not have
the expertise to make the correlation between the impact and injury, expert testimony was
required before the photos would be relevant and admissible. 2017 IL App (5th) 160264, ¶¶ 14-
19. The court concluded that the postaccident photos of the vehicles were simply not relevant
unless a party offering the photographs presented expert testimony to connect the damage
depicted in the photographs to plaintiff’s disputed injury claim. Id. ¶ 19. We disagree.
¶ 38 Postaccident photographs, just like testimony of witnesses describing an accident, are
relevant to the issues of proximate cause and injury. McGrath v. Rohde, 53 Ill. 2d 56, 61 (1972);
Ferro, 361 Ill. App. 3d at 743. Further, neither the photos nor the witness testimony need
necessarily prove or disprove a particular medical condition in order to be admissible. See Ill.
R. Evid. 401 (eff. Jan. 1, 2011). Complete certainty is not required for admissibility. Hawn v.
Fritcher, 301 Ill. App. 3d 248, 255 (1998). “ ‘An item of evidence being but a single link in a
chain of proof, need not prove conclusively the proposition for which it is offered. *** It is
enough if the item could reasonably show that a fact is slightly more probable than it would
appear without the evidence.’ ” Id. at 254 (quoting John W. Strong, McCormick on Evidence
§ 185, at 776-77 (4th ed. 1992)). Additionally, arguments about inferences from a party’s
testimony concerning the nature of impact are equally and appropriately made from the
photographs. See Marut, 34 Ill. 2d at 128; Moran v. Erickson, 297 Ill. App. 3d 342, 356 (1998);
Phillips v. Lawrence, 87 Ill. App. 2d 60, 63 (1967).
¶ 39 If a jury is allowed to consider relevant testimony about vehicle speed and impact forces,
a jury should be permitted to consider photographs that depict the damage, or lack thereof,
done to the vehicles. See McGrath, 53 Ill. 2d at 61; Plank v. Holman, 46 Ill. 2d 465, 470-71
(1970) (finding that the truth-seeking process is best served by requiring direct evidence, rather
than secondary evidence). These subjects are traditionally things jurors can understand, and
experts have not been needed to supplement witness descriptions of events. McGrath, 53 Ill.
2d at 60-61; Plank, 46 Ill. 2d at 470-71. Illinois courts have long recognized the jury’s proper
role in evaluating vehicle accident cases and the credibility of witnesses based on facts testified
to and demonstrated by photographs. See Drews v. Gobel Freight Lines, Inc., 144 Ill. 2d 84,
101 (1991) (holding that the trial court could have validly determined that the photographs
were relevant to show the extent of the decedent’s pain and suffering immediately after the
accident and, thus, there was no abuse of its discretion); McGrath, 53 Ill. 2d at 61 (finding that
the questions for the jurors did not require a scientific knowledge beyond that of typical jurors,
the questions involved the driving actions of the plaintiff and defendant at the time, and a
factual determination of these questions did not necessitate expert evidence to supplement the
eyewitness testimony available); Gaines v. Townsend, 244 Ill. App. 3d 569, 575 (1993)
(determining that the evidence, the testimony of the parties, and the depositions of the doctors
bring into question the extent of plaintiff’s injuries and whether they were proximately caused
by defendant’s negligence and holding that whom to believe and the weight to be given all of
the evidence are matters for the trier of fact); Philips, 87 Ill. App. 2d at 63 (stating “[b]oth logic
and experience indicate that a person in a stopped car, struck by another car going at a speed
in excess of 65 miles per hour, is more likely to receive more serious injuries than one similarly
situated who is struck by a car going at a much slower speed. Under the circumstances, we
believe the evidence of the speed of defendant’s car was admissible as having some bearing
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on the extent of the injuries suffered by plaintiff and that it was error of the trial court to exclude
this evidence.”).
¶ 40 In the case at bar, the photos were introduced to determine whether plaintiff was telling the
truth about his injuries when there was minor damage to the parties’ vehicles: plaintiff’s back
bumper was dented, and defendant had a bent license plate, and the front bumper was cracked.
As set forth above, the essential question in deciding the admissibility of postaccident
photographs is whether the jury understands the evidence and can relate the vehicular damage
depicted in the pictures to the injury without the aid of an expert. This is an evidentiary question
to be resolved by the trial judge. Ford, 398 Ill. App. 3d at 648; Fronabarger, 385 Ill. App. 3d
at 565; Jackson, 372 Ill. App. 3d at 1070-71; Ferro, 361 Ill. App. 3d at 743.
¶ 41 With regard to plaintiff’s injuries, plaintiff testified that he has had chronic neck pain for
the last six years as a result of the accident, although there was minor damage to the vehicles.
Dr. Templer testified that “[e]verything fit for a hyperflexion/hyperextension injury for
whiplash syndrome.” Although there were complicated medical diagnoses and medical
terminology introduced at trial, Dr. Templer also provided a layperson’s explanation, and thus,
the testimony could be understood by the average juror. For example, when asked what he
meant by compression of the right lateral recess, he explained that “there could be compression
of the nerves in the spinal cord.” Further, when asked what was meant by his finding that there
was tenderness in plaintiff’s “upper trapezius muscle, splenius capitis, paraspinal region,” Dr.
Templer explained that there was tenderness throughout plaintiff’s neck. Dr. Templer testified
that the accident could have caused plaintiff’s injuries but also testified that the accident might
not have caused the injuries.
¶ 42 Regarding credibility, as earlier observed, there was contradictory testimony from plaintiff
regarding the nature and speed of the impact. Plaintiff’s girlfriend testified that plaintiff told
her he was “plowed” into. Plaintiff reported to his doctor that his truck had been rear-ended,
estimated the speed of the impact to be about 25 to 30 miles per hour, and informed the police
officer that there was minor damage to both vehicles. Plaintiff also testified that his back
bumper was dented and four days after the accident his truck was no longer driveable.
Defendant testified that she was at a complete stop behind plaintiff’s car and rolled into the
back of plaintiff’s vehicle. The photographs depicted minor physical damage to both vehicles
as a result of the accident. Cf. Kayman v. Rasheed, 2015 IL App (1st) 132631, ¶¶ 64-65 (finding
that there was no testimony at trial regarding the nature of the impact; thus, there was simply
no basis to use the photograph of vehicle damage as impeachment on that issue).
¶ 43 Given these facts, the circuit court could properly have found that the pictures, when
considered with other evidence, were relevant to prove the matters at issue were “more or less
probable.” Ill. R. Evid. 401 (eff. Jan. 1, 2011); Marut, 34 Ill. 2d at 128; Ferro, 361 Ill. App. 3d
at 742-43. Thus, we cannot say that the court abused its discretion by admitting the photographs
without requiring expert testimony.
¶ 44 Additionally, requiring an expert physician or auto reconstruction engineer to testify and
explain evidence that is understood by the jurors imposes financial burdens on an already
expensive discovery and trial process. Requiring an expert witness when there is no prior
accident or preexisting injury forces parties to the task of finding and employing experts
instead of simply permitting the jury to apply common sense and experience to evidence
relevant to the causation issue in the case. Moreover, pro se parties, both plaintiff and
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defendant, may find it impossible to effectively proceed given the new financial burdens
involved with expert retention.
¶ 45 Witness testimony about the speed of the vehicles, the force of impact, and the existence
or extent of any resulting injuries in an automobile accident does not necessarily require
scientific, technical, or other specialized knowledge in order for the trier of fact to understand
the evidence and determine a fact in issue. Brenman v. Demello, 921 A.2d 1110, 1120 (N.J.
2007).
¶ 46 Juries are entitled to infer that which resides squarely in the center of everyday knowledge,
the certainty of proportion, and the resulting recognition that slight force most often results in
slight injury and great force most often is accompanied by great injury. Id. at 1120-21. Further,
nothing prevented plaintiff from offering expert proofs for the purpose of persuading the
factfinder to overcome an absence of proportionality between the force of the impact and the
cause and severity of the resulting injuries, as Dr. Templer testified that this was not his
expertise. See id. at 1120. Of course, such expert proofs address the weight to be given to
photographs of impact, not their admissibility. Id. at 1120-21.
¶ 47 Consequently, we find that the photographs were relevant because they had a tendency to
make a fact that was of consequence to the determination of the action, the existence and extent
of plaintiff’s injuries, more probable or less probable than it would be without the evidence
and to aid in the determination of credibility of the parties and, thus, admissible. Ill. R. Evid.
401 (eff. Jan. 1, 2011); see Marut, 34 Ill. 2d at 128; Ford, 398 Ill. App. 3d at 648. Therefore,
we conclude that the circuit court did not abuse its discretion in admitting the postaccident
vehicular photographs without requiring expert testimony. Dawdy, 207 Ill. 2d at 177 (finding
that an abuse of discretion occurs when no reasonable person would take the position adopted
by the circuit court). Accordingly, we hold that the appellate court erred in reversing the circuit
court’s admission of the postaccident vehicular photographs.
¶ 48 B. Motion for a New Trial
¶ 49 We next consider defendant’s argument that the appellate court erred in reversing the
circuit court’s denial of plaintiff’s motion for a new trial. Defendant contends that it is clear
that plaintiff was not entitled to a new trial on the issue of damages because plaintiff did not
carry his burden on proximate cause and resulting injury as required by law. Defendant further
contends that plaintiff’s credibility and whether the alleged injuries were caused by this
accident were the primary issues at trial. Defendant asserts that the jury was presented with
two diametrically opposed versions of the facts and the jury chose not to believe plaintiff’s
version that the vehicles’ impact caused him to sustain serious injuries.
¶ 50 On a motion for a new trial, a circuit court will weigh the evidence and set aside the verdict
and order a new trial if the verdict is contrary to the manifest weight of the evidence. Lawlor
v. North American Corp. of Illinois, 2012 IL 112530, ¶ 38. A verdict is against the manifest
weight of the evidence where the opposite conclusion is clearly evident or where the findings
of the jury are unreasonable, arbitrary, and not based upon any of the evidence. Id.; Maple v.
Gustafson, 151 Ill. 2d 445, 454 (1992). The reviewing court will not reverse the circuit court’s
ruling on a motion for a new trial unless it is affirmatively shown that the circuit court abused
its discretion. Lawlor, 2012 IL 112530, ¶ 38; Maple, 151 Ill. 2d at 455.
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¶ 51 In determining whether the circuit court abused its discretion in denying the plaintiff’s
request for a new trial, the reviewing court should consider whether the jury’s verdict was
supported by the evidence and whether the losing party was denied a fair trial. Maple, 151 Ill.
2d at 455. In Maple, this court noted that it is important to keep in mind that the trial judge, in
passing upon the motion for a new trial, has the benefit of his previous observations of the
appearance of the witnesses, their manner in testifying, and of the circumstances aiding in the
determination of credibility. Id. at 456. According to Maple, the question of whom to believe
and what weight to be given all of the evidence is a decision for the trier of fact, whose
determinations should not be upset on review unless manifestly erroneous. Id. at 460.
¶ 52 Defendant contends that the jury’s verdict was not against the manifest weight of the
evidence and the appellate court erred in reversing the determination of the jury and the circuit
court. According to defendant, the jury’s verdict was supported by ample evidence including
(1) the equivocal testimony of plaintiff’s expert that some other event could have caused
plaintiff’s injuries, 1 (2) the contradictory testimony of plaintiff, and (3) the photographic
evidence showing minor damage to the parties’ vehicles. Defendant argues that the appellate
court usurped the fundamental right of a jury to decide the credibility of witnesses and the right
of a jury to decline to accept injury claims when they are based largely upon plaintiff’s
subjective complaints.
¶ 53 In an automobile negligence case, the burden is on the plaintiff to establish a negligence
cause of action. The plaintiff must prove that the defendant was negligent and that the
defendant’s negligence was a direct and proximate cause of an injury sustained by the plaintiff.
Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 294 (2000); Hamilton v. Hastings, 2014
IL App (4th) 131021, ¶ 35. The issue of whether an automobile accident has proximately
caused any injury is uniquely a question of fact for the jury to decide. Redmond v. Socha, 216
Ill. 2d 622, 644-45 (2005); Maple, 151 Ill. 2d at 460. Jurors, through their own common sense
and life experience, are well equipped to weigh the evidence and reach a conclusion that an
automobile accident either did or did not cause an injury. Snover v. McGraw, 172 Ill. 2d 438,
448-49 (1996); Marut, 34 Ill. 2d at 128; Palmer v. Craig, 246 Ill. App. 3d 323, 329 (1993);
Phillips, 87 Ill. App. 2d at 63. Where the circuit court, after presiding over a jury trial and
having the opportunity to observe the trial witnesses, exercises its discretion and finds that
there was sufficient evidence to support the verdict, it would constitute an abuse of discretion
to grant a new trial. Maple, 151 Ill. 2d at 455-56.
¶ 54 Further, a jury is not required to accept the testimony of plaintiff’s expert where the
testimony conflicts with defendant’s testimony as to the nature of the impact. Id. at 460;
Gaines, 244 Ill. App. 3d at 575. Whether an opinion should be accepted is not for the trial
judge but is for the finder of fact. Melecosky v. McCarthy Brothers Co., 115 Ill. 2d 209, 216
(1986). Also, the fact that an expert’s opinion is based upon information received from an
interested litigant is relevant only to the weight it should be given. J.L. Simmons Co. ex rel.
Hartford Insurance Group v. Firestone Tire & Rubber Co., 108 Ill. 2d 106, 117 (1985).
¶ 55 A doctor’s reliance on his patient’s credibility and his acceptance of the patient’s history
and subjective expressions of pain, for purposes of making a medical diagnosis and rendering
1
Asked on cross-examination if some other event might have caused plaintiff’s injuries, Dr.
Templer testified, “I’m sure a lot of things could have happened,” but that he did not know of any other
event.
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medical treatment, is not binding on a jury. Melecosky, 115 Ill. 2d at 216-17. The jury is
empowered to make credibility determinations and must make its own assessment of the
patient’s veracity, not merely with respect to that person’s in-court testimony but also with
respect to that person’s general credibility to the extent that person’s credibility is relevant to
the ultimate determination in the case. Maple, 151 Ill. 2d at 460; Melecosky, 115 Ill. 2d at 216-
17 (stating that the jury must decide the weight to be given the opinion of the medical expert
that is based upon the patient’s subjective statements to the expert); Moran, 297 Ill. App. 3d at
354; Aguinaga v. City of Chicago, 243 Ill. App. 3d 552, 562 (1993) (finding that the expert’s
testimony is but the opinion of the witness given on facts assumed to be true; it is the function
of the trier of fact to determine the facts (citing Beloit Foundry v. Industrial Comm’n, 62 Ill.
2d 535, 539 (1972))). Additionally, a defendant is not required to present medical testimony to
contradict or discredit the testimony of plaintiff or plaintiff’s witnesses. See Redmond, 216 Ill.
2d at 644; Pecaro v. Baer, 406 Ill. App. 3d 915, 920-22 (2010). Thus, if the jury finds the
plaintiff to be incredible, it can correspondingly disregard the opinions of the medical
professional that are based upon information supplied to the professional by the plaintiff.
Moran, 297 Ill. App. 3d at 353.
¶ 56 In the case at bar, the jury was instructed to determine whether plaintiff was injured and
whether plaintiff’s injuries were proximately caused by defendant’s negligence. Significant
questions arose at trial regarding these issues. The “constitution does, and judges should,
carefully preserve the right of the parties to have a substantial factual dispute resolved by the
jury, for it is here that assessment of the credibility of witnesses may well prove decisive.”
Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 504 (1967); Ill. Const. 1970, art. I, § 13.
¶ 57 After a careful review of the evidence adduced at trial, as set forth above, we cannot
conclude that the jury’s findings were unreasonable, arbitrary, and not based upon the
evidence. The inference that plaintiff did not actually suffer any injury due to defendant’s
negligence is one that could reasonably be drawn from the evidence. The jury heard testimony
that (1) defendant’s vehicle came to a complete stop and rolled at idle speed into the rear of
plaintiff’s vehicle, (2) plaintiff’s vehicle was driveable after the accident, and (3) plaintiff
drove his vehicle to his girlfriend’s house immediately after the accident. They also heard the
subjective nature of plaintiff’s injuries and that six years later he still had neck pain. Dr.
Templer testified that the accident caused whiplash and could have caused other cervical
issues. Referring to plaintiff’s MRI, Dr. Templer testified that there were acute findings of a
more recent nature and degenerative findings from the aging process. He further opined that
the accident could have caused the injuries and, conversely, may not have caused the injuries.
He also explained that he could not relate the speed or level of impact to plaintiff’s injuries
because he was not a mechanical engineer and that was not his expertise.
¶ 58 Moreover, the jury heard contradictory evidence from plaintiff when he described how the
accident occurred and the speed of impact. He told his girlfriend he had been “plowed” into.
He filled out a patient form for Dr. Templer estimating the speed of impact between 25 and 30
miles per hour. He informed the police officer that there was little damage to either vehicle.
Both parties testified at trial to minor damage to their respective vehicles. Additionally, the
postaccident vehicular photographs showing minor damage provided independent evidence
that discredited plaintiff’s version of events but corroborated defendant’s testimony that there
was low impact. Thus, the evidence was conflicting, and disputed questions of fact were
presented. The question of whom to believe and what weight to be given all of the evidence
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was a decision for the trier of fact, whose determination should not be upset on review unless
manifestly erroneous. Maple, 151 Ill. 2d at 460.
¶ 59 Here, we find that although the appellate court acknowledged that the jury can disbelieve
any testimony, at any time, even when uncontradicted, the court, nonetheless, substituted its
judgment for that of the jury. The court entered its own judgment on the issues of proximate
cause and existence of damages, leaving only the amount of damages, in excess of a minimum,
to be considered by the jury on remand, in violation of Maple. 2017 IL App (5th) 160264, ¶ 21.
¶ 60 We determine that the jury could reasonably find that plaintiff’s contradictory testimony
caused credibility issues and, therefore, that plaintiff failed to carry his burden and prove the
issues of proximate cause and damages. Thus, its finding was not manifestly erroneous.
¶ 61 This court has recognized that
“ ‘[i]t is the jury, not the court, which is the fact-finding body. It weighs the
contradictory evidence and inferences, judges the credibility of witnesses, receives
expert instructions, and draws the ultimate conclusion as to the facts. The very essence
of its function is to select from among conflicting inferences and conclusions that which
it considers most reasonable. *** That conclusion, whether it relates to negligence,
causation or any other factual matter, cannot be ignored. Courts are not free to reweigh
the evidence and set aside the jury verdict merely because the jury could have drawn
different inferences or conclusions or because judges feel that other results are more
reasonable.’ ” Dowler v. New York, Chicago & St. Louis R.R. Co., 5 Ill. 2d 125, 130
(1955) (quoting Tennant v. Peoria & Pekin Union Ry. Co., 321 U.S. 29, 35 (1944)).
¶ 62 Consequently, we conclude that the circuit court properly exercised its discretion when it
denied plaintiff’s motion for a new trial. Accordingly, we hold that the appellate court erred
when it reversed the circuit court’s denial of plaintiff’s motion for a new trial.
¶ 63 As earlier noted, defendant argues, and plaintiff also concedes, that the appellate court
essentially entered a judgment notwithstanding the verdict while applying an incorrect standard
of review. However, since we have held that the circuit court did not abuse its discretion in
denying plaintiff’s motion for a new trial, resolution of this argument is not necessary to the
disposition of this case.
¶ 64 Courts of review will not decide moot or abstract questions, will not review cases merely
to establish precedent, and will not render advisory opinions. Italia Foods, Inc. v. Sun Tours,
Inc., 2011 IL 110350, ¶ 41. Courts of review will also ordinarily not consider issues that are
not essential to the disposition of the causes before them or where the results are not affected
regardless of how the issues are decided. Id.; Condon v. American Telephone & Telegraph Co.,
136 Ill. 2d 95, 99 (1990). Thus, we need not and do not address this argument.
¶ 65 III. CONCLUSION
¶ 66 For the foregoing reasons, the judgment of the appellate court is reversed, and the judgment
of the circuit court is affirmed.
¶ 67 Appellate court judgment reversed.
¶ 68 Circuit court judgment affirmed.
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