Alternative Medical Cause Arguments Require Supporting Defense Expert Testimony in Illinois

A recent Appellate Court opinion in a premises liability case alleging back pain has the potential to be a pain in the neck for defense lawyers seeking to argue for possible alternative causes of plaintiff’s injuries in a personal injury cases in Illinois. In Campbell v. Autenreib,  109 N.E.3d 332 (2018), the Fifth District held that testimony about the potential alternative causes of plaintiff’s injuries elicited through cross-examination of the plaintiff’s treating physician was too speculative to be admitted in the absence of any defense expert testimony supporting the alternative causes. This opinion expands on the Illinois Supreme Court’s opinion in Voykin v. Estate of DeBoer, 192 Ill. 2d 49 (2000), which held that in most cases defendants must present expert testimony about the relevance of a prior injury or medical condition in a personal injury case.

The plaintiff was a UPS driver who was “knocked back” by defendant’s unleashed dog in July 2012 and alleged he experienced recurring back pain from the incident for several years. Plaintiff saw a neurosurgeon, Dr. Kennedy, from November 2012 through March 2016 for his back pain. Because he missed work time after the incident, UPS instructed him in July 2014 to see another physician, Dr. DeGrange, who “ordered plaintiff back to work after conducting an examination.” Plaintiff worked for “a couple weeks” after being ordered to return to work, and then “injured his back while moving a deer stand” at work in October 2014. Plaintiff saw Dr. Kennedy and then took a leave of absence from work until September 2015.

In his deposition testimony presented at trial, Dr. Kennedy testified that plaintiff experienced an annular fissure in his back as a result of the dog incident. He also testified that plaintiff’s back injury from the deer stand incident in October 2014 was not a new injury but an aggravation of his prior injury from the dog encounter. Over plaintiff’s objections, the trial court also admitted Dr. Kennedy’s testimony on cross-examination about possible alternative causes of the plaintiff’s back pain, in which Dr. Kennedy agreed plaintiff’s back pain could be “idiopathic” and that his annular fissure could possibly have been caused by “many other factors,” including “lifting, twisting, [and] any kind of daily activities involving those type of events.” The trial court stated the testimony was admissible with regard to alternative or subsequent causes of the plaintiff’s injuries.

The defense also presented deposition testimony by Dr. DeGrange, who had diagnosed plaintiff with a lumbar strain, that the plaintiff did not need any medical treatment after July 2012, that the dog incident may have aggravated preexisting degeneration, and that plaintiff did not have any permanent back injury as a result of the dog incident. Dr. DeGrange also testified that he had examined the plaintiff in February 2015 after the “deer stand” incident and that his finding of a lumbar strain and symptoms of radiculopathy were not related to the dog incident. At the close of the evidence, the trial court directed a verdict for plaintiff on liability, and the jury awarded $16,000 for plaintiff’s damages.

The Fifth District appellate court reversed and remanded the case for a new trial on damages, holding that the trial court erred in admitting “speculative testimony” about “unsubstantiated causes of plaintiff’s injuries,” in violation of the Illinois Supreme Court’s holding in Voykin v. Estate of DeBoer, 192 Ill. 2d 49 (2000).

In Voykin, the plaintiff had suffered neck and back injuries in an auto accident, and the defendant sought to introduce evidence of a prior lower back injury. The trial court admitted the evidence, but the appellate court reversed and remanded, holding that evidence of the prior injury should not be admitted unless the defendant presented “evidence of causation” to link the prior and present injuries. The Illinois Supreme Court affirmed, holding that when a defendant seeks to introduce evidence of a plaintiff’s prior injury or medical condition, the defendant “must introduce expert evidence demonstrating why the prior injury is relevant to causation, damages, or some other issue of consequence.” The only Voykin exception is if the trial court determines that a “lay person can readily appraise the relationship” between plaintiff’s prior and current injuries without expert assistance.

The Fifth District in Campbell held that, under Voykin, allowing the testimony of Dr. Kennedy about possible alternative causes of plaintiff’s back injuries without expert testimony had “invited the jury to speculate about unsubstantiated causes of plaintiff’s injuries,” and was an abuse of discretion. The appellate court held that defense counsel had elicited “testimony from Dr. Kennedy regarding potential events that never occurred.” Id. at 49.

The Campbell decision is a reminder for defense practitioners in Illinois to be sure to have their experts disclose all the potential alternative causes they plan to proffer as a potential alternative cause of plaintiff’s injuries. Absent such evidence from the defense experts, the defendant may be precluded from eliciting impeachment evidence on potential alternative causes or otherwise eliciting such testimony from plaintiff’s treating physicians and/or experts.