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                              Appellate Court                          Date: 2018.02.22
                                                                       12:12:55 -06'00'




                  Peach v. McGovern, 2017 IL App (5th) 160264



Appellate Court   WILLIAM KEVIN PEACH, Plaintiff-Appellant, v. LYNSEY E.
Caption           MCGOVERN, Defendant-Appellee.



District & No.    Fifth District
                  Docket No. 5-16-0264



Filed             December 12, 2017



Decision Under    Appeal from the Circuit Court of Marion County, No. 14-L-28; the
Review            Hon. Kevin S. Parker, Judge, presiding.



Judgment          Reversed and remanded; motion to strike granted.


Counsel on        George R. Ripplinger, of Ripplinger & Zimmer, LLC, of Belleville,
Appeal            for appellant.

                  Edward L. Adelman, of Goffstein, Raskas, Pomerantz, Kraus &
                  Sherman, LLC, of St. Louis, Missouri, for appellee.



Panel             JUSTICE CATES delivered the judgment of the court, with opinion.
                  Justices Goldenhersh and Chapman concurred in the judgment and
                  opinion.
                                              OPINION

¶1       Plaintiff, William Kevin Peach, brought suit against defendant, Lynsey E. McGovern, for
     personal injuries he sustained in an automobile accident. The jury returned a verdict in favor
     of defendant, and the circuit court of Marion County entered judgment on that verdict.
     Plaintiff appeals, contending the jury verdict was against the manifest weight of the evidence,
     especially where defendant was adjudged negligent as a matter of law. Plaintiff further
     asserts that the trial court erred in allowing defense counsel, over objection, to present
     evidence pertaining to the relative amount of damage sustained by the vehicles and argues
     that there was a direct correlation between the amount of damage to the vehicles, as depicted
     in photographs, and plaintiff’s injuries. We reverse and remand.
¶2       The evidence revealed that plaintiff was on his way home around 10 p.m. after visiting
     with his girlfriend on the evening of July 17, 2010. As he was driving home, he had to stop at
     the intersection of North Shelby Street and East Main Street in Salem, Illinois, to allow
     traffic to clear. While waiting at the stop sign, the rear of plaintiff’s 1985 Nissan pickup truck
     was struck by another vehicle. Plaintiff testified that even though he had his foot on the
     brake, his truck was pushed some 5 to 10 feet into the intersection. When the collision
     occurred, plaintiff’s head hit the back window of his truck and his neck began hurting
     immediately. The vehicle that rear-ended plaintiff’s truck was a 2001 Mitsubishi Eclipse
     driven by defendant, who was also on her way home. Defendant claimed she was fully
     stopped behind plaintiff, when her foot slipped off the brake. She further testified that her
     vehicle simply rolled into the rear of plaintiff’s truck. Plaintiff, on the other hand, estimated
     defendant’s speed to have been 20 to 25 miles per hour at the time of the impact. He also
     noticed that defendant was on her cell phone.
¶3       After the accident, both plaintiff and defendant got out of their vehicles to inspect the
     damage. The back bumper of plaintiff’s truck was dented, and the front bumper of
     defendant’s Eclipse was cracked. Defendant was unwilling to call the police or exchange
     information with plaintiff. Instead, defendant decided to leave the scene. As she was leaving,
     plaintiff was able to get the license plate number from defendant’s car. Plaintiff drove back to
     his girlfriend’s house because his neck was hurting so badly. He testified that it was as if
     somebody suddenly set a match to his neck. Plaintiff also had a headache and felt like he was
     in a daze. The girlfriend testified that plaintiff came back to her house about 15 minutes after
     he left. Because plaintiff appeared to be a bit disoriented and was complaining of a severe
     headache and neck pain, the girlfriend indicated she took plaintiff to the emergency room at a
     nearby hospital.
¶4       While plaintiff was in the emergency room undergoing various tests, the police were
     contacted so that a police report could be made. Plaintiff gave the license plate number he
     had recorded from defendant’s car to the police. When the police contacted defendant, she
     admitted she had been involved in a vehicular accident. Defendant was subsequently ticketed
     for failure to reduce speed to avoid an accident and pled guilty to the offense.
¶5       Plaintiff testified that since the accident, he has had chronic neck pain. A few days after
     the accident, plaintiff visited his regular physician, Dr. Luecha. Plaintiff was given steroids
     and a neck brace, and he underwent therapy, but nothing helped with the pain. He was then
     referred to Dr. Templer, a pain management specialist in Mount Vernon. Plaintiff underwent
     an MRI of his cervical spine in September and began treatment with Dr. Templer in October

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       of 2010. The MRI revealed that plaintiff was not suffering from degenerative changes that
       had accumulated over the years, but rather from more recent injuries, consistent with having
       been rear-ended in a motor vehicle collision. Specifically, the MRI showed a straightening of
       the normal lordosis, consistent with muscle spasm and pain, and a right disc protrusion at
       C3-4, with foraminal narrowing on the right, compression of the right lateral recess,
       compression of the dural sac, and compression of the anterior margin of the spinal cord.
       Plaintiff was diagnosed with cervical sprain or strain, consistent with whiplash.
¶6         Plaintiff further stated he was suffering from pain radiating down into his right arm and
       tenderness in the upper trapezius muscle. He indicated that he still has to rest his neck every
       three to four days because of the pain. Plaintiff testified that prior to the collision, he had
       experienced no problems with his neck. By the time of the trial, his medical bills had
       exceeded $23,000. Plaintiff’s final diagnosis was whiplash syndrome, chronic neck pain,
       cervical facet arthropathy, cervical disc herniation, cervical annular tear, and possible
       cervical radiculopathy, cervical foraminal stenosis, and cervical degenerative disc disease.
¶7         Dr. Templer, the pain management physician, testified 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. Dr. Templer noted that even very low speed
       collisions can cause hyperflexion/hyperextension injuries. Dr. Templer further opined that
       the accident caused the whiplash, annular tear, and loss of integrity of disc space reported in
       plaintiff’s medical records.
¶8         Plaintiff also testified that the dented bumper was not the only damage to his truck caused
       by the collision. According to plaintiff, a few days after the accident, the brackets on the
       truck bed failed. As a result, plaintiff’s vehicle was no longer drivable.
¶9         At the close of the evidence, the court directed a verdict for plaintiff on the issue of
       negligence and reserved the questions of causation and damages for the jury. The jury
       subsequently returned a verdict in favor of defendant, awarding plaintiff no damages. This
       appeal followed.
¶ 10       Plaintiff first argues on appeal that the jury verdict was against the manifest weight of the
       evidence. The only evidence of damages and causation came from plaintiff, his girlfriend,
       and Dr. Templer. Both plaintiff and his girlfriend testified that plaintiff received medical care
       and treatment immediately after being involved in the motor vehicle accident. Both also
       testified that ever since the accident, plaintiff was suffering from pain in his neck. The MRI
       revealed injuries consistent with whiplash. Dr. Templer also testified that plaintiff’s injuries
       were consistent with whiplash. Dr. Templer further stated that low speed impact could cause
       such injuries.
¶ 11       Defendant did not put on any witnesses to contradict plaintiff or the medical evidence.
       Instead, during defendant’s closing argument, she relied on photographs to defeat plaintiff’s
       claims. As plaintiff points out, defense counsel was allowed, over objection, to present
       photographs depicting damage to the two vehicles involved and to argue that plaintiff
       exaggerated the impact between the two vehicles in order to relate his neck injuries to the
       rear-end collision. While it may have been possible that some other event caused plaintiff’s
       injuries and medical findings, there was no substantive evidence introduced during trial to
       suggest the occurrence of any such events. Nor was there any testimony, even during
       cross-examination, regarding a correlation between the amount of vehicular damage, relative


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       to the speed of the vehicles involved, and plaintiff’s injuries.

¶ 12                                              Analysis
¶ 13       We recognize that it is the function of the trial court to determine the admissibility and
       relevance of evidence, and its ruling will not be disturbed on appeal absent an abuse of that
       discretion. Ford v. Grizzle, 398 Ill. App. 3d 639, 647, 924 N.E.2d 531, 540 (2010).
       Additionally, we note that 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 or less
       probable than it would be without the evidence. Ford, 398 Ill. App. 3d at 648; Ill. R. Evid.
       401 (eff. Jan. 1, 2011). Photographs are used at trial for a variety of purposes. Some require
       the testimony of an expert witness, while others may not. The general rule is that a
       photograph is admissible if it has a reasonable tendency to prove a material fact at issue in
       the case. Smith v. Baker’s Feed & Grain, Inc., 213 Ill. App. 3d 950, 952, 572 N.E.2d 430, 431
       (1991). Here, plaintiff filed a motion in limine to preclude the introduction of the
       photographs of the vehicles. Plaintiff made no claim for property damage, and the fact of the
       impact was uncontested. The question then became why the photographs were relevant, and
       thus admissible, at all.
¶ 14       During the evidence deposition of Dr. Templer, he indicated that he did not have the
       expertise to relate the damage depicted in the photographs to the various medical findings in
       plaintiff’s neck, such as the overextension and flexion of plaintiff’s neck, which allegedly
       caused plaintiff’s chronic pain, the right disc protrusion of C3-4, with foraminal narrowing,
       the annular tear, and the loss of integrity to the disc space. Defendant had no other witness
       who could testify that the damage depicted in the photographs did not cause the various
       injuries testified to by Dr. Templer. The only evidence regarding the photographs was that
       they depicted the damage to the vehicles. While the court initially deferred a ruling on the
       admissibility of the photographs, plaintiff’s motion in limine to bar their use was ultimately
       denied, and the photos were admitted.
¶ 15       When faced with cases involving rear-end collisions between two vehicles, courts often
       refer to Fronabarger v. Burns, 385 Ill. App. 3d 560, 895 N.E.2d 1125 (2008), in resolving
       whether to admit photographs depicting damage to the vehicles involved in a collision. The
       court in Fronabarger declined to accept a rigid rule that photographs depicting damage to the
       vehicles were always admissible or that expert testimony was always necessary for such
       photographs to be admissible. See Fronabarger, 385 Ill. App. 3d at 564. Rather, according to
       the court, the critical question in admitting such photographs into evidence is whether the
       jury can properly relate the vehicular damage depicted in the photos to the injury, without the
       aid of an expert. Fronabarger, 385 Ill. App. 3d at 564-65. In reaching this decision, the court
       in Fronabarger declined to follow the earlier holding of Baraniak v. Kurby, 371 Ill. App. 3d
       310, 862 N.E.2d 1152 (2007), which concluded that, absent expert testimony on the
       correlation between vehicular damage and a plaintiff’s injuries, photographs of the parties’
       damaged vehicles should be excluded.
¶ 16       Here, 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

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       the ordinary juror and require the testimony of an expert witness. Therefore, under the
       circumstances of this case, we believe the rule expressed in Baraniak is a better view than
       that adopted in Fronabarger. We reach this conclusion after noting that the cases relied upon
       in Fronabarger all involved evidence from expert witnesses on the very issue of the
       correlation between vehicular damage and a plaintiff’s injuries. Even Fronabarger had an
       expert witness who opined that if a vehicle does not sustain any evidence of impact, it is
       therefore likely that the people in the vehicle are not going to have significant evidence of an
       impact. Fronabarger, 385 Ill. App. 3d at 563. That expert was proffered by the defendant to
       relate the lack of vehicular damage relative to the injuries claimed by the plaintiff. See also
       Jackson v. Seib, 372 Ill. App. 3d 1061, 866 N.E.2d 663 (2007) (expert relied on photographs
       of vehicles in order to reach an opinion regarding the nature and severity of the impact);
       Ferro v. Griffiths, 361 Ill. App. 3d 738, 836 N.E.2d 925 (2005) (photographs relevant
       because of expert testimony regarding the nature and extent of injury). Such is not the case
       here.
¶ 17       The facts in Baraniak are strikingly similar to those before us. In Baraniak, the plaintiff
       was stopped at a red light when the car she was driving was struck in the rear by a car being
       driven by the defendant. The plaintiff described the impact as “hard” and claimed that it
       caused her head to strike the back of her headrest. As a result, the plaintiff immediately
       complained of a headache, pain in her neck, and lack of sensation in her hands. She went to
       the hospital and was treated and released. Six days later, she saw her personal physician, who
       diagnosed the plaintiff with a spinal cord injury and whiplash. The plaintiff sought medical
       treatment for over a year and amassed medical bills in excess of $50,000. The defense
       admitted liability, but challenged the nature and extent of the plaintiff’s injuries. The
       defendant offered the testimony of an expert witness, who indicated that the plaintiff’s
       injuries were resolved by the time she was discharged by her first neurosurgeon. The plaintiff
       offered the testimony of three of her treating physicians who related her medical treatment
       and injuries to the accident. The plaintiff argued that it was an abuse of discretion to allow
       defense counsel to use the photographs during closing argument to argue the lack of injury to
       the plaintiff, as no expert had related the damage illustrated by the photographs to the nature
       and extent of the plaintiff’s injuries. The defendant argued that she was not using the photos
       to show a lack of damages, but was using the photos to argue which party was more
       “credible.” Baraniak, 371 Ill. App. 3d at 317.
¶ 18       The Baraniak court held that to allow the use of photos to argue credibility would be an
       “end run around the relevancy rule, and photographs of damaged vehicles would always be
       admissible in trials of this nature on the grounds that credibility is always an issue. The effect
       of such a ruling would be to allow parties to accomplish indirectly what the courts have
       already determined is improper absent expert testimony, i.e., to argue or even imply that
       there is a correlation between the extent of vehicular damage and the extent of a person’s
       injuries caused by an accident.” Baraniak, 371 Ill. App. 3d at 317-18. The Baraniak court
       recognized the rule set forth in DiCosola v. Bowman, 342 Ill. App. 3d 530, 535, 794 N.E.2d
       875 (2003), that “no Illinois case stands for the proposition that photographs showing
       minimal damage to a vehicle are automatically relevant and must be admitted to show the
       nature and extent of a plaintiff’s injuries. There simply is no such bright-line rule that
       photographs depicting minimal damage to a post-collision vehicle are automatically
       admissible to prove the extent of a plaintiff’s bodily injury or lack thereof.” The court


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       therefore reversed the judgment of the lower court and remanded for a new trial. Upon
       remand, the court held that, absent expert testimony on the correlation between the vehicular
       damage and plaintiff’s injuries, the photographs of the parties’ damaged vehicles shall be
       excluded. Baraniak, 371 Ill. App. 3d at 318. We believe this reasoning is sound in the case
       before us as well.
¶ 19       Here, the trial court, relying on Fronabarger, denied plaintiff’s motion in limine to bar
       use of the photographs at trial. Defense counsel was allowed, over objection, to admit the
       photographs of the vehicles and then argue that there was a direct correlation between the
       amount of damage to the vehicles and plaintiff’s damages. As previously noted, defense
       counsel presented no expert or medical evidence to support his argument. Instead, defense
       counsel waited until closing argument to present the photographs to the jury and argue that
       plaintiff could not have been injured to the extent claimed because the photos of the vehicles
       showed minimal damage. Closing argument is the opportunity for the lawyers to comment on
       the evidence introduced at trial. “Comments on the evidence during closing argument are
       proper if proven by direct evidence or if reasonably inferable from the facts.” Magna Trust
       Co. v. Illinois Central R.R. Co., 313 Ill. App. 3d 375, 396, 728 N.E.2d 797, 814 (2000). Here,
       defense counsel provided his own testimony regarding the relationship of the damage
       depicted in the photographs to plaintiff’s injuries. Under the circumstances presented here, to
       allow defendant’s counsel to make such an argument, wholly unsupported by any evidence,
       was an abuse of the trial court’s discretion. We also conclude that the court erred at the outset
       in failing to grant plaintiff’s motion in limine with respect to the admissibility of the
       photographs for the purpose of attempting to relate plaintiff’s injuries to the vehicular
       damage depicted in the photographs, without expert testimony to support such an inference.
       Plaintiff suffered cervical injuries that required the testimony of a physician expert. Without
       this expert testimony regarding a relationship between what was seen in the photos and the
       injuries suffered by plaintiff, the photographs were simply not relevant to any issues in the
       case, and irrelevant evidence is not admissible. DiCosola, 342 Ill. App. 3d at 533-35, 538.
¶ 20       In addition to this abuse of the court’s discretion, we also believe the jury’s verdict is
       against the manifest weight of the evidence. Dr. Templer testified that he was not able to
       correlate the vehicle damage and plaintiff’s injury, as he was not qualified to make such an
       analysis, and not all of the facts that would be necessary to make the calculations were
       available. Dr. Templer did opine, however, that a low speed vehicular impact can cause the
       type of injuries plaintiff was suffering from and that plaintiff’s injuries were related to the
       rear-end impact. Plaintiff’s MRI was consistent with Dr. Templer’s opinion, as was the
       testimony from both plaintiff and his girlfriend pertaining to plaintiff’s injuries immediately
       after the accident. We therefore conclude that the jury’s verdict in this instance was against
       the manifest weight of the evidence.
¶ 21       A verdict is against the manifest weight of the evidence when the opposite result is
       clearly evident or where the jury’s findings are unreasonable, arbitrary, and not based on the
       evidence. Ford, 398 Ill. App. 3d at 651. Here, the 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


                                                   -6-
       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. We therefore reverse the
       judgment in favor of defendant.
¶ 22       Finally, we must address one other issue before remanding this cause back to the circuit
       court. Defendant filed a motion to strike plaintiff’s appendix and all related argument
       pertaining to the appendix. That motion was ordered to be taken with the case. The appendix
       consists of two articles on the relationship between the damage to vehicles and injuries to the
       occupants of those vehicles. Neither article was submitted to the trial court as evidence in
       support of any argument asserted by plaintiff. Consequently, neither article is part of the
       record on appeal. Because the introduction of new evidence on appeal is improper, any
       evidence that was not presented to the trial court should not be considered on appeal and
       should be stricken. People ex rel. Madigan v. Leavell, 388 Ill. App. 3d 283, 287-88, 905
       N.E.2d 849, 854 (2009). Defendant’s motion to strike that portion of plaintiff’s appendix and
       any argument in the brief referencing those articles is therefore granted.
¶ 23       For the foregoing reasons, we reverse the judgment entered by the circuit court of Marion
       County and remand this cause for further proceedings. Defendant’s motion to strike, taken
       with the case, is hereby granted.

¶ 24      Reversed and remanded; motion to strike granted.




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