In Fronabarger v. Burns, No. 5-07-0433 (5th Dist. Rule 23 Order issued August 19, 2008, Motion to Publish Granted September 29, 2008), the Fifth District Appellate Court ruled that the trial court did not err in admitting after crash photographs of the parties’ damaged vehicles absent expert testimony on the correlation between vehicular damage and the plaintiff’s injuries. Additionally, the trial court did not abuse its discretion in allowing the defense’s expert physician to rely on the photographs in rendering her opinions as to the plaintiff’s claimed injuries.
This cause of action stems from a rear end collision. During trial, the defendant presented after crash photographs of both the plaintiff’s vehicle (showing minor damage) and her own vehicle (showing no damage). The plaintiff objected to the admissibility of the photographs, was overruled, and the photos were admitted into evidence.
Defendant’s medical expert provided opinion testimony regarding plaintiff’s claimed injuries. This expert medical opinion was not only based upon a personal physical examination of the plaintiff and a review of her medical records, but also upon review of the after crash photographs. The expert testified that the plaintiff suffers from a degenerative condition that predated the accident. Further, if any injury was suffered, it was neither permanent nor serious. Also, she placed emphasis on the photographs that showed little or no damage to the vehicles. Therefore, she reasoned that the occupants of the vehicle depicting no damage did not sustain significant injury. The expert further testified that a great impact would be needed between the vehicles to injure the plaintiff in the manner claimed, and that her review of the photographs revealed no evidence of an impact.
The trial court allowed the expert to testify, over plaintiff’s objection. The jury returned a verdict in favor of the plaintiff, awarding her approximately one-third of her claimed medical bills. Plaintiff appealed, claiming abuse of discretion by the trial court in allowing the photographs to be entered into evidence and for allowing the medical expert to provide opinion testimony based partially upon said photographs.
On appeal, plaintiff argued that the after crash photographs were inadmissible absent expert testimony on the correlation between the vehicular damage and the plaintiff’s injuries. Citing its decision in Jackson v. Sieb, 372 Ill.App.3d 1061 (5th Dist. 2007), the court rejected the notion that such photographs are always inadmissible or that expert testimony is always necessary. The court highlighted that the trial court has discretion in resolving the evidentiary questions “whether the photographs make the resulting injury to the plaintiff more or less probable” and “whether the nature of the damage to the vehicles and the injury to the plaintiff are such that a lay person can readily assess their relationship, if any, with out expert interpretation.”
In Fronabanger, the appellate court found no abuse of discretion in admitting the photographs since they were introduced to show why minimal damage to the vehicles was relevant to the nature and extent of the plaintiff’s injuries. Since the photos depicted relatively minor damage to the plaintiff’s vehicle and no damage to the defendant’s vehicle, the trial court was proper in finding them to be relevant in proving that the plaintiff’s injury was more probable or less probable. Furthermore, the court found that a jury could assess the relationship between the damage to the vehicles (minimal to none) and the injury to the plaintiff without the aid of an expert.
Plaintiff also appealed the trial court’s decision to allow the medical expert to testify that less vehicle damage suggests a likelihood of less significant occupant injuries. The plaintiff specifically argued that the medical expert was not qualified to provide such an opinion.
The court held that the defendant had laid the proper foundation for the expert opinion, which included testimony regarding her medical education and training, board certifications and experience in treating patients of automobile accidents, and her personal examination of the plaintiff and review of plaintiff’s medical records. Based upon the foregoing, the appellate court opined that the trial court acted within its discretion in allowing testimony regarding damages done to the vehicles, as depicted in the after crash photographs, and the plaintiff’s corresponding injury.
Despite favorable implications to defense strategists, the decision of the Fifth District does not provide a bright line rule. If a plaintiff is claiming extensive injuries and after crash photographs show minor vehicle damage, argument based upon the Fronabarger decision could be made in an effort to admit into evidence those photographs absent expert testimony. Admission of such photographs may bolster a defensive position that minor vehicle damage leads to minor personal injuries. However, the coin flips both ways – a plaintiff may use the reasoning of the Fronabarger court for admission of photographs depicting extensive damage, in the absence of expert testimony, tending to make her alleged injuries more probable. It would serve a defendant well to have a medical expert examine not only the complainant and/or her medical records, but also any photographs relative to the incident; as noted by the Fifth District, “ Illinois case law is replete with physicians who have testified, based upon observation and experience, regarding their opinion of whether a claimant was injured.”
