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                                 Appellate Court                           Date: 2018.10.09
                                                                           14:24:42 -05'00'



                   Campbell v. Autenrieb, 2018 IL App (5th) 170148



Appellate Court      STEVEN   CAMPBELL,       Plaintiff-Appellant,        v.      KEVIN
Caption              AUTENRIEB, Defendant-Appellee.



District & No.       Fifth District
                     Docket No. 5-17-0148


Filed                July 10, 2018
Rehearing denied     August 13, 2018



Decision Under       Appeal from the Circuit Court of Madison County, No. 13-L-1904;
Review               the Hon. William A. Mudge, Judge, presiding.



Judgment             Reversed and remanded.


Counsel on           Roy C. Dripps III, Charles W. Armbruster III, and Michael T.
Appeal               Blotevogel, of Armbruster, Dripps, Winterscheidt & Blotevogel, LLC,
                     of Maryville, for appellant.

                     Michael P. Murphy, of Freeark, Harvey & Mendillo, P.C., of
                     Belleville, for appellee.



Panel                JUSTICE GOLDENHERSH delivered the judgment of the court, with
                     opinion.
                     Presiding Justice Barberis and Justice Chapman concurred in the
                     judgment and opinion.
                                              OPINION

¶1       This appeal stems from a two-count complaint brought by plaintiff, Steven Campbell, to
     recover damages caused by the alleged strict liability and negligence of defendant, Kevin
     Autenrieb, in failing to keep his dog under control. Plaintiff’s action ultimately proceeded to a
     jury trial, where the trial court directed a verdict on liability in favor of plaintiff and against
     defendant at the close of all evidence. The jury returned a verdict of $16,000 in damages in
     favor of plaintiff and against defendant. On appeal, plaintiff argues (1) the trial court erred in
     admitting certain medical testimony regarding potential alternative causes of plaintiff’s
     injuries and (2) the jury’s award of damages was against the manifest weight of the evidence.
     For the following reasons, we reverse and remand this cause for further proceedings consistent
     with this opinion.

¶2                                      BACKGROUND
¶3       The following pertinent testimony was adduced at trial. We limit our discussion to the
     evidence necessary to provide context.

¶4                                      A. Plaintiff’s Testimony
¶5       Plaintiff testified that on July 18, 2012, while he was working for his employer, United
     Parcel Service (UPS), an unleashed dog owned by defendant lunged at plaintiff and “knocked
     [him] back.” Plaintiff injured his back as a result of the incident. Thereafter, plaintiff went to
     Midwest Occupational Medicine to receive medical treatment. Plaintiff did not finish his work
     shift that day.
¶6       Plaintiff returned to Midwest Occupational Medicine eight days after the incident and
     reported he was feeling much better, which plaintiff attributed to the medicine he was taking.
     Plaintiff volunteered to take vacation time off work during this period “to give [himself] every
     opportunity to get rid of the pain.” Plaintiff testified he was working again by late July or early
     August 2012 but was not performing his regular duties.
¶7       Plaintiff again returned to Midwest Occupational Medicine in September 2012 due to
     recurring back pain. Plaintiff eventually consulted a specialist, Dr. Kennedy, in November
     2012. Dr. Kennedy prescribed plaintiff physical therapy and injections. Plaintiff testified he
     followed all of Dr. Kennedy’s instructions. The last day plaintiff was treated by Dr. Kennedy
     was March 18, 2016.
¶8       Plaintiff testified he missed time from work between July 2012 and September 2015. In
     July 2014, UPS instructed plaintiff to see Dr. DeGrange, who ordered plaintiff back to work
     after conducting an examination. Plaintiff testified he was not working prior to being examined
     by Dr. DeGrange. When plaintiff returned to work, he had not completed all of the physical
     therapy prescribed by Dr. Kennedy. Plaintiff worked for a couple weeks following his
     appointment with Dr. DeGrange before injuring his back while moving a deer stand for UPS.
     Plaintiff subsequently took a leave of absence from work and went to see Dr. Kennedy, who
     recommended physical therapy and conservative treatment. Plaintiff returned to work in
     September 2015.
¶9       Plaintiff testified that from September 2012 until the present day, “[t]here isn’t a day that
     goes by that I don’t have pain.” Plaintiff described his pain as a serious bruise in his back and

                                                  -2-
       testified he has pain which radiates down his leg. Plaintiff stated he is able to function on some
       days with medication and struggles on other days. Plaintiff testified he had incurred $200,000
       in lost wages since the incident. Plaintiff further testified he no longer vacations and was
       forced to sell his motorcycle, boat, and camper as a result of the incident.
¶ 10       On cross-examination, plaintiff was impeached based on an incorrect discovery response
       to a question regarding whether plaintiff was able to return to work following the incident.
       Plaintiff responded he was unable to return to work and had not returned to work since the
       incident, when in fact plaintiff had worked for a period of time following the incident. Plaintiff
       conceded UPS records showed plaintiff engaged in work activity from August 2012 to April
       2013. Plaintiff also testified that on the day of the incident, he experienced unbearable pain
       which he essentially marked as a “ten out of ten pain.” When plaintiff returned to Midwest
       Occupational Medicine the day after the incident, however, he testified he marked his pain
       level as a 3 or 4 out of 10.
¶ 11       Further evidence adduced on cross-examination showed the physicians who treated
       plaintiff at Midwest Occupational Medicine following the incident did not recommend that
       plaintiff be taken off work. From April 2013, when plaintiff took a leave of absence from
       work, until August 2014, plaintiff testified the only treatment he received was from Dr.
       Kennedy. Also on cross-examination, plaintiff testified he did not work from October 29,
       2014, until September 21, 2015, following an incident in which he was injured while moving a
       deer stand at work. Plaintiff testified he did not agree that it was common for individuals in his
       employment position to have bad backs. Plaintiff conceded that no physician had placed any
       type of restriction on him at the time of trial.

¶ 12                                    B. Dr. Kennedy’s Testimony
¶ 13       Plaintiff presented deposition testimony from Dr. Kennedy, a board-certified neurosurgeon
       who initially treated plaintiff on November 28, 2012. After performing a physical examination
       on plaintiff, Dr. Kennedy testified the most notable findings were that plaintiff had significant
       limitation in the range of motion of his back and plaintiff’s ability to bend forward was
       significantly reduced. Dr. Kennedy recommended physical therapy in addition to injections
       into the areas of particular tenderness in the muscle groups. Dr. Kennedy continued to treat
       plaintiff until early 2016. Dr. Kennedy testified that an MRI conducted early in plaintiff’s
       treatment showed bulging discs and an annular fissure. Dr. Kennedy testified it was evident
       from the MRI that plaintiff’s annulus had been injured, which he opined was likely a result of
       the dog incident.
¶ 14       Dr. Kennedy further testified he was aware of an examination of plaintiff performed by Dr.
       DeGrange in 2014 that recommended plaintiff return to work without restrictions. Dr.
       Kennedy testified that Dr. DeGrange’s opinion about plaintiff’s ability to return to work was
       very different from his opinion, which concluded plaintiff was not ready to return to work. Dr.
       Kennedy also testified regarding the incident in which plaintiff injured his back on October 29,
       2014, as he was delivering a deer stand. Dr. Kennedy opined this event was not a new injury
       but an aggravation of his prior injury. Dr. Kennedy opined that because plaintiff “never really
       fully recovered” from his prior injury, he was “vulnerable to events that otherwise might not
       bother him.”
¶ 15       Dr. Kennedy testified he last saw plaintiff in March 2016. At that time, Kennedy testified
       plaintiff was generally able to function but was not symptom-free and experienced aching

                                                   -3-
       pains. Kennedy opined plaintiff was not medically able to work for UPS without restrictions
       from July 18, 2012, the date of the dog incident, until he released plaintiff to return to work in
       September 2015.

¶ 16                                    C. Dr. DeGrange’s Testimony
¶ 17       Defendant presented deposition testimony from Dr. DeGrange, a board-certified doctor
       who first examined plaintiff in July 2014 at the request of plaintiff’s employer, UPS. Dr.
       DeGrange testified plaintiff had a chief complaint of low back pain and the symptoms were
       present on a daily basis. He identified plaintiff’s complaint to be at the lumbosacral area. Dr.
       DeGrange characterized the symptoms as “frequently mild, meaning they were definitely there
       and noticeable and occasionally moderate causing significant problems with activities either
       professionally or of daily living.” Dr. DeGrange’s physical examination of plaintiff concluded
       he did not look particularly uncomfortable and he did not have acute distress. Dr. DeGrange
       opined the diagnosis of plaintiff’s injury was a lumbar strain. Dr. DeGrange opined plaintiff
       reached maximum medical improvement by July 26, 2012, which was eight days after the dog
       incident, and plaintiff did not need any additional medical treatment thereafter. Dr. DeGrange
       further opined the dog incident may have aggravated plaintiff’s preexisting degeneration and
       plaintiff had no permanent injury to his low back as a result of the dog incident. Dr. DeGrange
       testified that after seeing plaintiff in July 2014, he did not place any restrictions on plaintiff’s
       activities and released plaintiff to return to work.
¶ 18       Dr. DeGrange also testified he examined plaintiff a second time in February 2015
       following the incident in which plaintiff injured himself while moving a deer stand for UPS.
       Dr. DeGrange’s second examination concluded plaintiff sustained a lumbar strain and plaintiff
       had symptoms of a radiculopathy that involved his right leg. Dr. DeGrange opined that none of
       the symptoms or findings he made on his second evaluation of plaintiff were related to the dog
       incident.

¶ 19               D. Cross-Examination Testimony Admitted Over Plaintiff’s Objection
¶ 20       During trial, plaintiff sought to exclude certain cross-examination testimony that defense
       counsel elicited from Dr. Kennedy regarding potential alternative causes of plaintiff’s injuries,
       arguing the testimony was not offered to a reasonable degree of medical certainty. Plaintiff
       alleged the testimony was prohibited under our supreme court decision in Voykin v. Estate of
       DeBoer, 192 Ill. 2d 49 (2000). The trial court admitted the testimony on the basis that (1) it was
       elicited on cross-examination as opposed to direct examination and (2) it pertained to potential
       alternate or subsequent causes of plaintiff’s injuries rather than a preexisting condition. The
       evidence admitted over plaintiff’s objection was Dr. Kennedy’s deposition testimony:
                   “[COUNSEL FOR DEFENDANT]: Okay. Sometimes people’s back will just go
               out for no reason; would you agree with that.
                   [DR. KENNEDY]: Yes.
                   Q. They call it an idiopathic cause?
                   A. Right.
                                                   ***




                                                    -4-
                 Q. And the annular fissure, we talked about that. That could be caused—You
              mentioned it could be caused by an incident like he described to you with the dog, but it
              could be caused by many other factors; would you agree?
                 A. Possible.
                 Q. Lifting, twisting, any kind of daily activities involving those type of events?
                 A. Well, I think as a general proposition that’s possible, yes.”

¶ 21                                           E. Jury Verdict
¶ 22        At the close of all evidence, plaintiff moved for a directed verdict on liability, which the
       trial court granted. Following deliberations, the jury returned a verdict of $16,000 in favor of
       plaintiff and against defendant. Specifically, the jury awarded plaintiff: $6000 for loss of a
       normal life experienced and reasonably certain to be experienced in the future; $6000 for the
       pain and suffering experienced and reasonably certain to be experienced in the future as a
       result of the injuries; and $4000 for the value of time, earnings, salaries, and benefits lost, and
       the present cash value of the time, earnings, salaries, and benefits reasonably certain to be lost
       in the future. Plaintiff subsequently filed a motion for a new trial on damages, which the trial
       court denied.
¶ 23        This appeal followed.

¶ 24                                              ANALYSIS
¶ 25        Plaintiff first alleges the trial court committed prejudicial error in admitting speculative
       testimony regarding potential alternative causes of plaintiff’s injuries and pain and suffering.
       Conversely, defendant contends the trial court did not commit prejudicial error in admitting
       foundation and/or background testimony regarding general potential causes for plaintiff’s
       injuries and plaintiff’s pain and suffering.
¶ 26        Evidentiary rulings, including whether to allow an expert to present certain opinions, are
       within the sound discretion of the trial court and will not be disturbed on review absent a clear
       abuse of discretion. People v. Wheeler, 226 Ill. 2d 92, 132 (2007); Cetera v. DiFilippo, 404 Ill.
       App. 3d 20, 36-37 (2010). This is the most deferential standard of review recognized by law,
       and a reviewing court’s mere disagreement with the trial court’s decision is not enough to
       make the decision an abuse of discretion. People v. Hancock, 2014 IL App (4th) 131069,
       ¶ 121. Rather, a trial court abuses its discretion only if it acts arbitrarily without the
       employment of conscientious judgment, exceeds the bounds of reason and disregards
       recognized principles of law, or if no reasonable person would take the position adopted by the
       trial court. Myrick v. Union Pacific R.R. Co., 2017 IL App (1st) 161023, ¶ 21. If the trial
       court’s decision rests on an error of law, “then it is clear that an abuse of discretion has
       occurred, as it is always an abuse of discretion to base a decision on an incorrect view of the
       law.” Thompson v. Gordon, 356 Ill. App. 3d 447, 461 (2005).
¶ 27        Here, plaintiff argues the trial court improperly admitted the following deposition
       testimony elicited from Dr. Kennedy by defense counsel on cross-examination:
                    “[COUNSEL FOR DEFENDANT]: Okay. Sometimes people’s back will just go
                out for no reason; would you agree with that.
                    [DR. KENNEDY]: Yes.
                    Q. They call it an idiopathic cause?

                                                    -5-
                  A. Right.
                                                     ***
                    Q. And the annular fissure, we talked about that. That could be caused—You
                mentioned it could be caused by an incident like he described to you with the dog, but it
                could be caused by many other factors; would you agree?
                    A. Possible.
                    Q. Lifting, twisting, any kind of daily activities involving those type of events?
                    A. Well, I think as a general proposition that’s possible, yes.”
¶ 28        The parties agree the court admitted this testimony on the basis that (1) it was elicited on
       cross-examination as opposed to direct examination and (2) it pertained to potential alternate
       or subsequent causes of plaintiff’s injuries rather than a preexisting condition. However,
       plaintiff contends the trial court erred in admitting this evidence because testimony such as
       “[s]ometimes people’s back will just go out for no reason,” it is possible an annular fissure
       “could be caused by many other factors,” and plaintiff’s injuries could have been caused by
       “[l]ifting, twisting, any kind of daily activities involving those type of events” is the type of
       speculative testimony our supreme court in Voykin v. Estate of DeBoer, 192 Ill. 2d 49 (2000),
       held to be inadmissible because it allows the jury to make medical assessments based on
       conjecture.
¶ 29        In Voykin, the plaintiff sustained injuries to his neck and back in an automobile accident
       caused by the defendant. Voykin, 192 Ill. 2d at 51. At trial, the defendant sought to introduce
       evidence of a lower back injury the plaintiff had suffered approximately five years before the
       accident. Voykin, 192 Ill. 2d at 52. The trial court admitted the evidence, but the appellate court
       reversed and remanded for a new trial after concluding evidence of prior injuries should not be
       admitted unless the defendant presents evidence of causation between the prior and present
       injuries. Voykin, 192 Ill. 2d at 52-53. The defendant’s petition for leave to appeal was
       subsequently granted. Voykin, 192 Ill. 2d at 53.
¶ 30        Our supreme court affirmed the appellate court’s reversal, holding that when a defendant
       seeks to introduce evidence of a plaintiff’s prior injury or medical condition at trial, the
       defendant must first introduce expert evidence showing why the prior injury or medical
       condition is relevant to causation, damages, or some other issue of consequence. Voykin, 192
       Ill. 2d at 59; Noble v. Earle M. Jorgensen Co., 2013 IL App (5th) 120248, ¶ 21. The Voykin
       court further concluded there is an exception to the requirement for expert testimony, which
       arises when the trial court determines a “lay person can readily appraise the relationship”
       between the plaintiff’s prior and current injuries without expert assistance. Voykin, 192 Ill. 2d
       at 59.
¶ 31        In reaching its decision, our supreme court rejected the evidentiary rule known as “the
       same part of the body rule,” which had provided: “[I]f a plaintiff has previously suffered an
       injury to the same part of the body, then that previous injury is automatically relevant to the
       present injury simply because it affected the same part of the body.” Voykin, 192 Ill. 2d at 57;
       DiCosola v. Bowman, 342 Ill. App. 3d 530, 536 (2003). The Voykin court characterized “the
       same part of the body rule” as “nothing more than a bright-line relevancy standard” and
       criticized the automatic relevancy basis of the rule. Voykin, 192 Ill. 2d at 57; DiCosola, 342 Ill.
       App. 3d at 536. As the court observed, “ ‘ “[r]elevancy is not an inherent characteristic of any
       item of evidence but exists only as a relation between an item of evidence and a matter


                                                    -6-
       properly provable in the case.” ’ [Citation.]” Voykin, 192 Ill. 2d at 57; DiCosola, 342 Ill. App.
       3d at 536.
¶ 32       Illinois courts have since extended the Voykin holding to evidence of subsequent injuries in
       addition to prior injuries. In Caliban v. Patel, 322 Ill. App. 3d 251, 256 (2001), a motorist
       brought a negligence action to recover damages sustained in an automobile accident. On
       appeal, the plaintiff argued the trial court erred in denying his motion in limine, which sought
       to prevent the defendant from introducing evidence or argument concerning plaintiff’s prior
       and subsequent injuries and medical conditions. Caliban, 322 Ill. App. 3d at 253. Citing
       Voykin, the court concluded the trial court erred when it allowed the introduction of evidence
       regarding a subsequent injury without requiring the defendant to offer relevant, supporting
       expert testimony. Caliban, 322 Ill. App. 3d at 256.
¶ 33       In Obszanski v. Foster Wheeler Construction, Inc., 328 Ill. App. 3d 550, 559 (2002), the
       court relied on Voykin in concluding the introduction of evidence on cross-examination
       concerning an ironworker’s subsequent injury without any supporting expert testimony was
       error. As the court observed:
                    “This type of questioning by defense counsel without expert testimony could be
                prejudicial and in conflict with the Voykin decision. With an appropriate foundation
                laid by a medical expert, if that could be done, defense counsel should be allowed to
                show that the subsequent injury is a ‘cause’ of plaintiff’s current complaint. This is
                difficult because the injury in question is claimed to be permanent in nature. If medical
                evidence can show enhanced or separate pain from the subsequent injury, then the jury
                should hear it. If not, then it should not come in at all.” Obszanski, 328 Ill. App. 3d at
                560.
¶ 34       In light of the foregoing, it is clear Voykin applies to testimony elicited on
       cross-examination and to subsequent injuries in addition to prior injuries. That being said, we
       are unaware of any decision by this court that has resolved the specific question presented to
       us, which is essentially whether the trial court erred in admitting expert testimony regarding
       unsupported, potential alternative causes of plaintiff’s injuries. Although we are unaware of
       any decision that has resolved this specific issue, we find the reasoning of Voykin as it pertains
       to evidence of prior and subsequent injuries applies to unsupported evidence of phantom
       causes of injuries.
¶ 35       As previously stated, defense counsel in this case elicited testimony from Dr. Kennedy
       regarding potential alternative causes of plaintiff’s injuries, including that “[s]ometimes
       people’s back will just go out for no reason,” plaintiff’s annular fissure “could be caused by
       many other factors,” and plaintiff’s annular fissure could be caused by “[l]ifting, twisting, any
       kind of daily activities involving those type of events.” The record shows defense counsel
       failed to provide any medical testimony or other competent evidence establishing a causal link
       between the phantom causes of injuries suggested and plaintiff’s present injuries complained
       of as a result of the dog incident. Moreover, Dr. Kennedy later dismissed the possibility that
       plaintiff’s injuries were incurred as a result of an alternative phantom cause:
                    “[COUNSEL FOR PLAINTIFF]: Okay. Just so the record is clear, you were asked
                if other events could have caused this kind of injury. Has anyone provided you with a
                record, a statement, a history, a video, anything suggesting there was an event, other
                than the dog attack in July of 2012, that caused [plaintiff’s] low back pain?


                                                    -7-
                    [DR. KENNEDY]: No, there was no other event in this case. The question was
                regarding potential. But in actuality there was no other injury that [plaintiff] suffered
                that I know of.”
¶ 36        Dr. Kennedy’s hypothetical testimony elicited from defense counsel invited the jury to
       speculate about unsubstantiated causes of plaintiff’s injuries, which is precisely the type of
       speculative testimony Voykin guarded against. As this court has explained, the rationale for
       requiring a defendant to present expert testimony showing why a separate injury is relevant to
       causation is “to avoid what amount[s] to the jury forming medical opinions.” Hawkes v.
       Casino Queen, Inc., 336 Ill. App. 3d 994, 1008 (2003). Nothing from Dr. Kennedy’s testimony
       regarding potential alternative causes of plaintiff’s injuries demonstrates why the phantom
       causes are relevant under the Voykin standard. For these reasons, we find the trial court abused
       its discretion in admitting this testimony.
¶ 37        Lending support to our conclusion are two decisions decided by this court: Hawkes, 336 Ill.
       App. 3d 994, and Noble, 2013 IL App (5th) 120248. In Hawkes, a patron brought a premises
       liability action against the owner of a casino after he tripped and fell in the casino’s restroom,
       sustaining injuries to his head, neck, and back. Shortly before the trial, the plaintiff submitted a
       motion in limine seeking to bar the defendant from mentioning or referring to prior neck
       injuries and related treatment the plaintiff received prior to his fall. Hawkes, 336 Ill. App. 3d at
       999. Relying on Voykin, the plaintiff’s motion sought to prevent the defendant from suggesting
       the plaintiff’s injuries were a result of a preexisting condition involving his neck. Hawkes, 336
       Ill. App. 3d at 999. The trial court granted the plaintiff’s motion and barred the defendant from
       mentioning the plaintiff’s prior neck injuries and treatment, as well as any opinions or
       cross-examination regarding whether the plaintiff had a prior bulging disc in his cervical area.
       Hawkes, 336 Ill. App. 3d at 999. On appeal, the defendant argued the court erred in granting
       the plaintiff’s motion. Hawkes, 336 Ill. App. 3d at 1005.
¶ 38        This court affirmed the exclusion of evidence of the plaintiff’s prior conditions. Regarding
       the defendant’s expert testimony attempting to establish the plaintiff suffered from a
       preexisting condition, namely a disc bulge, this court concluded said testimony did not negate
       the cause of the plaintiff’s fall or the resulting injuries. Hawkes, 336 Ill. App. 3d at 1006. This
       court further concluded “the fact that plaintiff’s prior injuries could have caused a disc to bulge
       in his neck does not make it less likely that defendant’s actions caused any of plaintiff’s
       injury.” (Emphases in original.) Hawkes, 336 Ill. App. 3d at 1006.
¶ 39        The Hawkes court also rejected the defendant’s expert testimony elicited on
       cross-examination that allegedly showed the plaintiff was symptomatic at his C5 vertebrae
       prior to his fall and the disc injury for which the plaintiff received surgery was caused by
       something other than the fall. Hawkes, 336 Ill. App. 3d at 1007. The court concluded that
       neither of the experts’ testimony, when taken alone, demonstrated why the prior injury was
       relevant under the Voykin standard. Hawkes, 336 Ill. App. 3d at 1008. The court found the
       experts’ testimony amounted to little more than supposition and conjecture. Hawkes, 336 Ill.
       App. 3d at 1008. The court stated that the essential next step of assessing the relationship
       between the prior injury and the present injury from the experts’ testimony would be left to the
       jury, which “is exactly what the Voykin decision guarded against.” Hawkes, 336 Ill. App. 3d at
       1007-08. As this court explained, “In order to avoid what amounted to the jury forming
       medical opinions, the Illinois Supreme Court has instructed that a defendant bears the burden
       of ‘introduc[ing] expert evidence demonstrating why the prior injury is relevant to causation,

                                                    -8-
       damages, or some other issue of consequence.’ (Emphasis added.)” Hawkes, 336 Ill. App. 3d at
       1008 (quoting Voykin, 192 Ill. 2d at 59). Accordingly, this court affirmed the exclusion of such
       evidence.
¶ 40       In Noble, the plaintiff brought a negligence action against the defendant and his employer,
       seeking damages for injuries allegedly sustained to her coccyx, piriformis muscle, and
       sacroiliac joint in a motor vehicle accident. Noble, 2013 IL App (5th) 120248, ¶¶ 1-2. The
       defendants sought to present evidence showing the plaintiff was treated for pain in her low
       back and pelvic area prior to the motor vehicle accident and that she suffered a subsequent
       fracture in her low back. Noble, 2013 IL App (5th) 120248, ¶ 22. Prior to trial, the plaintiff
       filed a motion in limine seeking to prevent the defendants from referencing any injuries and
       medical treatment to portions of the plaintiff’s body unrelated to the coccyx, sacroiliac joint,
       and piriformis muscle. Noble, 2013 IL App (5th) 120248, ¶ 3. The plaintiff asserted this
       evidence should be barred on the basis that the defendants failed to present any medical or
       other competent evidence establishing a causal connection between the plaintiff’s prior and
       subsequent medical conditions and the injuries she alleged to have suffered as a result of the
       accident, as required by Voykin. Noble, 2013 IL App (5th) 120248, ¶ 3. The trial court granted
       the plaintiff’s motion in limine, barring the defendants from mentioning the plaintiff’s prior
       low back injuries and treatment and her subsequent fracture. Noble, 2013 IL App (5th) 120248,
       ¶ 19.
¶ 41       On appeal, the defendants alleged the court erred by preventing them from introducing
       evidence regarding the plaintiff’s prior low back pain and treatment and her subsequent
       fracture in her low back on the basis that the defendants failed to introduce expert testimony
       establishing a causal connection between the injuries to the plaintiff’s low back and the injuries
       to her coccyx, sacroiliac joint, and piriformis muscle. Noble, 2013 IL App (5th) 120248, ¶ 20.
       The defendants argued the excluded deposition testimony of two doctors, Dr. Anderson and
       Dr. Pereira, established the causal connection between the injuries and, therefore, the
       defendants were not required to present further expert testimony on the issue. Noble, 2013 IL
       App (5th) 120248, ¶ 20.
¶ 42       Relying on Voykin, this court affirmed the exclusion of evidence regarding the plaintiff’s
       prior low back pain and her subsequent fracture. As this court observed:
                “In Voykin [citation], the Illinois Supreme Court concluded that when a defendant
                seeks to introduce evidence of a plaintiff’s prior injuries or medical conditions at trial,
                the defendant must first introduce expert evidence demonstrating why the prior injury
                or medical condition is relevant to causation, damages, or some other issue of
                consequence. The defendant must present medical or other competent evidence to
                establish a causal connection between the evidence offered and the complained-of
                injuries.” (Emphasis in original.) Noble, 2013 IL App (5th) 120248, ¶ 21.
¶ 43       This court found that Dr. Anderson’s testimony regarding the plaintiff’s low back pain
       preexisting the date of the accident did not establish a causal connection between the injuries to
       her coccyx, piriformis muscle, and sacroiliac joint and the plaintiff’s complaints of low back
       pain and her subsequent fracture. Noble, 2013 IL App (5th) 120248, ¶ 25. As this court noted,
       the plaintiff only alleged injuries to her coccyx, piriformis muscle, and sacroiliac joint during
       the trial and never alleged she aggravated her previous low back pain as a result of the accident.
       Noble, 2013 IL App (5th) 120248, ¶ 25. This court further noted that Dr. Pereira testified there
       was no correlation between the finding that the plaintiff suffered a fracture after the accident

                                                    -9-
       and the plaintiff’s complaints of pain to her coccyx, sacroiliac joint, and piriformis muscle, as
       the fracture was 8 to 10 inches from the area treated as a result of the motor vehicle accident.
       Noble, 2013 IL App (5th) 120248, ¶ 25. For these reasons, this court concluded it did not
       believe sufficient expert testimony was presented to establish a causal connection between the
       plaintiff’s injuries to her low back and her subsequent fracture and the plaintiff’s injuries to her
       coccyx, sacroiliac joint, and piriformis muscle. Noble, 2013 IL App (5th) 120248, ¶ 25.
¶ 44       In the instant case, Dr. Kennedy’s testimony amounted to little more than speculation and
       conjecture, as defense counsel failed to provide any medical testimony or other competent
       evidence establishing a causal link between the phantom causes of injuries suggested and
       plaintiff’s injuries incurred as a result of the dog incident. This type of speculative testimony is
       prohibited under Voykin. “Regardless of how skilled or experienced an expert may be, he is not
       permitted to speculate or to state a judgment based on conjecture, i.e., a conclusion based on
       assumptions not in evidence or contradicted by the evidence.” Royal Elm Nursing &
       Convalescent Center, Inc. v. Northern Illinois Gas Co., 172 Ill. App. 3d 74, 79 (1988).
       Moreover, experts are prohibited to opine regarding the cause of an injury based on
       nonexistent facts. Yanello v. Park Family Dental, 2017 IL App (3d) 140926, ¶ 44. For the
       foregoing reasons, the trial court abused its discretion in admitting Dr. Kennedy’s testimony
       regarding unsubstantiated hypothetical causes of plaintiff’s injuries.
¶ 45       Defendant argues that, unlike Voykin and its progeny, which concerned cases where the
       defendants attempted to argue prior and subsequent accidents and/or conditions were a cause
       of the plaintiff’s injuries and damages, no testimony was elicited in the instant case regarding
       any prior injuries and conditions or any subsequent accidents which may have caused
       plaintiff’s injuries. Defendant contends that nothing in Voykin or its progeny prohibits the
       foundational and/or background testimony elicited from Dr. Kennedy during
       cross-examination regarding potential mechanisms of plaintiff’s injuries. We disagree.
¶ 46       Although defendant did not introduce evidence that plaintiff’s injury was related to a
       specific prior or subsequent accident, defendant did introduce evidence that suggested
       plaintiff’s injury may have been the result of something other than the dog incident. We find
       this to be a distinction without a difference. As previously stated, defense counsel asked Dr.
       Kennedy if he agreed with the following statement: “Sometimes people’s back will just go out
       for no reason,” which is referred to as an “idiopathic cause.” Dr. Kennedy replied, “Yes.”
       Defense counsel further asked Dr. Kennedy if he agreed that the annular fissure plaintiff
       suffered as a result of the dog incident could have been caused by “many other factors.” Dr.
       Kennedy replied, “Possible.” Thus, defense counsel attempted to present a phantom cause of
       plaintiff’s injury without any medical evidence to support such a claim. This type of
       unsupported speculation and conjecture is inadmissible under Voykin.
¶ 47       Defendant also cites Hahn v. Union Pacific R.R. Co., 352 Ill. App. 3d 922 (2004), in
       support of his position, which held that an employee’s neurosurgeon was permitted to testify as
       to what might or could have caused the employee’s injury. Specifically, the Hahn court
       explained:
                    “To be probative on the issue of causation, a medical expert is not required to give
               an opinion regarding a specific cause. Rather, a medical expert is permitted to testify to
               what might or could have caused an injury, despite any objection that the testimony is
               inconclusive. Testimony from a physician regarding what might or could have caused
               an injury is merely a medical opinion given on facts assumed to be true. [Citations.] For

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               evidence to be relevant, it need only tend to make the existence of any fact more
               probable or less probable than it would otherwise be.” (Emphasis in original.) Hahn,
               352 Ill. App. 3d at 930.
¶ 48       After careful review, we find Hahn distinguishable from the instant case. In Hahn, the
       court permitted the testimony of a neurosurgeon who opined there was a causal connection
       between the events described in the employee’s history and the initiation of the employee’s
       symptoms, despite an argument that the causation testimony was inconclusive. As the court
       noted, “an examination of a plaintiff and a review of his medical history provide a sufficient
       foundation from which a treating physician may offer opinions on the cause of his injury.”
       Hahn, 352 Ill. App. 3d at 931. The court concluded the neurosurgeon’s testimony was based
       upon his specialized knowledge and experience and not mere guess or speculation, and the
       testimony served to narrow the reasonable probabilities of causation in an area where limited
       medical knowledge does not permit an unequivocal opinion. Hahn, 352 Ill. App. 3d at 931.
¶ 49       In contrast, defense counsel in this case elicited testimony from Dr. Kennedy regarding
       potential events that never occurred. Defense counsel attempted to establish causation from
       events that Dr. Kennedy explicitly stated were never established in plaintiff’s medical records.
       We reiterate that for an alternative event to be relevant to causation, it must make it less likely
       that the defendant’s actions caused any of the plaintiff’s injuries or an identifiable portion
       thereof. Voykin, 192 Ill. 2d at 58. Here, the phantom causes of injury suggested by defense
       counsel do not make it less likely that defendant’s dog caused plaintiff’s injuries, as these
       phantom causes never occurred. Accordingly, we reject defendant’s argument.

¶ 50                                          CONCLUSION
¶ 51       In sum, we conclude the trial court erred in admitting unsupported evidence on
       cross-examination regarding potential alternative causes of plaintiff’s injuries. Voykin
       prohibits this type of speculative testimony. Given our disposition, we need not address
       plaintiff’s remaining contention alleging the jury’s award of damages was against the manifest
       weight of the evidence. In light of the trial court’s directed verdict in favor of plaintiff, as well
       as the Voykin violations noted above, we reverse the judgment of the circuit court of Madison
       County and remand this cause for a new trial on damages only.

¶ 52       Reversed and remanded.




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