FERRO v. GRIFFITHS (2005)

Plaintiff Gregory Ferro sued defendant Lorraine Griffiths for injuries he sustained when the vehicle driven by Griffiths struck the rear bumper of the van in which Ferro was a passenger.   The jury returned a verdict in favor of Griffiths;  the trial court subsequently granted Griffiths' postjudgment request for fees and costs.   On appeal from the verdict (No. 3-03-0943), Ferro claims that the trial court made several errors during witness testimony, failed to direct a verdict or enter judgment notwithstanding the verdict in his favor, failed to exclude jurors who admitted that they were against lawsuits, and improperly questioned a witness from the bench.   In a separately filed appeal (No. 3-04-0007), Ferro also claims that the court erred in entering sanctions for fees and costs when Griffiths' motion only requested costs.   We affirm the judgment entered in favor of Griffiths in case No. 3-03-0943 and vacate the sanction order in case No. 3-04-0007.

On January 4, 1999, Ferro underwent cardiac surgery during which a number of stents were placed in his coronary artery.   Following surgery, Ferro developed a heart attack rupture.   Three days later, cardiovascular surgeon Dr. Ramesh Veeragandham performed open heart surgery to investigate Ferro's condition.   He found fluid around the heart, a condition called pericardial effusion.   The doctor drained the fluid, and Ferro was discharged on January 15, 1999.   At the time of discharge, Ferro had chest pain at the incision site but did not have internal chest pain.   He also required oxygen and was taking Coumadin to prevent clotting.   He planned to spend several weeks recuperating at the home of his cousin, Darlene Hennis.

That afternoon, Hennis drove her van to the hospital to take Ferro home.   An attendant escorted Ferro out of the hospital in a wheelchair and put him in the front passenger seat of the van.   The attendant stood the oxygen tank on the floor of the van between Ferro's feet and legs.   The top of the tank was less than one foot from Ferro's chest.   While traveling home, Hennis stopped for a traffic light and was struck from behind by Griffiths' vehicle.   Ferro described the impact as “very heavy.”   According to Ferro, the tank handle on the oxygen regulator hit him in the chest.   He immediately felt pain and pressure inside his chest.

An ambulance transported Ferro back to the hospital.   When he arrived at the emergency room, the pain in his chest was building. x-rays were taken which showed an enlargement of the heart.   Dr. Sennett, a radiologist, reviewed the x-rays and determined that Ferro had a pericardial effusion.   The next day, Dr. Veeragandham opened the lower part of the previous incision in Ferro's chest and drained approximately 600 cc of blood-stained fluid from the pericardial sac.

Ferro was released and later filed suit against Griffiths for the injuries caused by the accident.   Prior to the trial, Ferro sought an order barring Griffiths from presenting any photographs of either vehicle to the jury or suggesting a relationship between the severity of the collision and the severity of injury to plaintiff.   Ferro argued that although the pictures showed minor damage to the vehicles, he was “particularly susceptible” to injury because of his preexisting medical condition.   At the hearing, Ferro's counsel argued that his injuries were aggravated because of the medical procedure that had just been performed.   The trial court denied the motion, noting that plaintiff's condition did not preclude the relevancy of the photographs.

At the trial, Dr. Kevin Dolehide testified that he was Ferro's primary treating physician upon his readmission to the hospital.   When Ferro arrived, he complained of chest pain and shortness of breath.   Dr. Dolehide noted that Ferro did not have these problems when he was discharged a few hours earlier.   Tests indicated that there was bleeding around Ferro's heart which was of sufficient quantity to put pressure on his heart and diminish the outflow of blood from the heart itself, a condition called tamponade.   Dr. Veeragandham was consulted and diagnosed pericardial effusion with evidence of tamponade.   Dr. Dolehide believed that the blunt trauma from the force of the oxygen tank caused the pericardial effusion because nothing else in the plaintiff's history would indicate any other cause.   He admitted that a person can develop a pericardial effusion from surgery but stated that he would have to defer to a cardiologist as to how long after surgery a patient could develop such a condition.   He also testified that the use of Coumadin could help develop fluid around the heart, even without trauma.

The trial judge then asked a few brief questions regarding the level at which a pericardial effusion “turns into a tamponade.”   Dr. Dolehide clarified that a pericardial tamponade is caused by excess fluid around the heart.   The accumulation of fluid causes the muscles of the heart to restrict.   It is the restriction of the heart that leads to the diagnosis of a tamponade.   The judge thanked the doctor and dismissed him from the stand.

Dr. Charlene Sennett testified that she reviewed both Ferro's x-rays of the chest cavity and the CT scan of his thorax.   On direct examination, Dr. Sennett testified that she did not know what caused the pericardial effusion in this case.   She stated that she could not tell counsel “why this particular person had a pericardial effusion.” The effusion could have been caused by recent open heart surgery, myocardial infarction or several other reasons.

Cardiologist Dr. David Cusick reviewed Ferro's CT scan with Dr. Sennett and noted that there was a moderate pericardial effusion present.   An ultrasound of the heart revealed that Ferro was experiencing severe reduction in the squeezing function of the heart and that there was a large pericardial effusion present.   Dr. Cusick did not note any bruising to Ferro's chest beyond that expected from the recent sternal surgery.   Plaintiff's counsel then asked Dr. Cusick, “You did not formulate any opinions as to the causation of Mr. Ferro's pericardial effusion, did you?”   Dr. Cusick responded, “ * * * I don't believe I did write down a specific cause of the effusion in my notes.”

During cross-examination, Dr. Cusick explained that many things can cause a pericardial effusion, including various types of infections, heart disease and trauma.   People who have had heart surgery can develop a pericardial effusion.   He could not say to a reasonable degree of medical certainty that the car accident was the cause of Ferro's pericardial effusion.   Dr. Cusick stated that if the accident was not considered the two likely causes of the pericardial effusion would be his recent heart attack and his cardiac surgery.   Ferro's attorney did not object to defense counsel's questions.   On redirect examination, Dr. Cusick admitted that the accident could have caused the pericardial effusion.

On direct-examination, Dr. Veeragandham testified that about 50 cc of pericardial fluid are normally present around an adult male's heart.   During Ferro's surgery on January 7, 1999, Dr. Veeragandham removed approximately 400 cc of clear serous fluid.   The blood-stained fluid he drained from Ferro's heart after the accident was different from the fluid he drained during the January 7 surgery. He testified that it was possible that the fluid accumulated between the first surgery and the surgery on January 16.

On cross-examination, Dr. Veeragandham indicated that fluid could accumulate around the heart without blunt trauma to the chest.   The same process that started the original accumulation of fluid can continue..  The anticoagulant therapy that plaintiff received could have also caused bleeding in his pericardium.   Dr. Veeragandham testified that he could not say the reason for the recurrence of the effusion.   When asked whether he held an opinion as to how the pericardial effusion was caused, Dr. Veeragandham stated, “I do not have any opinion.”   Plaintiff's objection to his answer was overruled.

In closing argument, defense counsel argued that “three of the four doctors determined that there is not enough evidence for them to determine that this accident caused the injuries complained of here * * * three out of four doctors can't be wrong.”   Plaintiff's counsel did not object to defense counsel's comments.

The trial court entered a directed finding on the issue of negligence.   The jury returned a verdict in favor of Griffiths on the issue of liability.   Ferro's posttrial motion for judgment notwithstanding the verdict or, alternatively, a new trial was denied.

I.

Admission of Photographs

 Ferro claims that it was improper and highly prejudicial to allow defendant to offer into evidence photographs that showed little damage to either vehicle.   He argues that expert testimony is required to show a correlation between lack of damage to the vehicles and injury to plaintiff, citing the recent case of DiCosola v. Bowman, 342 Ill.App.3d 530, 276 Ill.Dec. 625, 794 N.E.2d 875 (2003).

 It is within the discretion of the trial court to decide whether evidence is relevant and admissible.  City of Rockford v. Elliott, 308 Ill.App.3d 735, 242 Ill.Dec. 436, 721 N.E.2d 715 (1999).  “Relevant evidence” is that which 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.”  DiCosola, 342 Ill.App.3d 530, 535, 276 Ill.Dec. 625, 794 N.E.2d 875, 879 (citing Wojcik v. City of Chicago, 299 Ill.App.3d 964, 234 Ill.Dec. 137, 702 N.E.2d 303 (1998)).

 When the trial court makes a decision to admit pictures, it has to determine whether the photographs make the resulting injury to the plaintiff more or less probable.   The court must determine 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, without expert interpretation.   See Voykin v. DeBoer, 192 Ill.2d 49, 248 Ill.Dec. 277, 733 N.E.2d 1275 (2000).   A reviewing court will not disturb the trial court's decision absent a clear abuse of that discretion.  DiCosola, 342 Ill.App.3d 530, 276 Ill.Dec. 625, 794 N.E.2d 875.   An abuse of discretion occurs only where no reasonable person would take the position adopted by the trial court.  Taxman v. First Illinois Bank of Evanston, 336 Ill.App.3d 92, 270 Ill.Dec. 244, 782 N.E.2d 803 (2002).

In DiCosola, the trial court found that, absent expert testimony, the defendant could not admit photographs of the damage to the vehicles merely to argue that there was a relationship between the amount of property damage and the nature and extent of plaintiff's injury.   Based on that decision, the court granted plaintiff's motion in limine to exclude the photographs of the vehicles.

On review, the appellate court noted that the decision to admit the photographs was within the trial court's discretion.   The court held that the trial judge did not abuse its discretion in requiring expert testimony to relate the extent of the vehicular damage to the extent of plaintiff's injuries.   The court rejected both the notion that such pictures must always be allowed or, on the other hand, that expert testimony is always necessary for the photographs to be admissible.  DiCosola, 342 Ill.App.3d 530, 537, 276 Ill.Dec. 625, 794 N.E.2d 875, 881.

We agree with DiCosola.   In any given case, expert testimony may be required to show a proper correlation between the extent of the vehicular damage and the nature and extent of plaintiff's injury. However, we refuse to adopt a rigid rule that proscribes the admission of pictures without an expert.   The critical question in admitting these photographs is whether the jury can properly relate the vehicular damage depicted in the pictures to the injury without the aid of an expert.   This is an evidentiary question that the trial judge must resolve.

While this case is close, we cannot say that the trial court abused its discretion by admitting the photographs without expert testimony.   The pictures were introduced to show why minimal damage to plaintiff's vehicle was relevant to the nature and extent of plaintiff's injuries.   Ferro testified that the impact to the van was “very heavy,” causing his body to move back and forth and hit the oxygen tank.   Dr. Cusick testified that Ferro did not have any additional bruising to his chest after the accident.   The photographs depicted the physical damage to both vehicles as a result of the accident.   Under these facts, the trial judge could properly have found that the pictures, by themselves, were relevant to prove the matter at issue was “more or less probable.”   See Wojcik, 299 Ill.App.3d at 971, 234 Ill.Dec. 137, 702 N.E.2d at 309.

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II.

Opinion Testimony of Dr. Cusick and Dr. Veeragandham

Ferro first claims that the trial court erred in allowing Dr. Cusick and Dr. Veeragandham to testify that they held no opinion whether the cause of the pericardial effusion was the motor vehicle accident.   He further argues that the trial court erred in permitting defense counsel to state during closing argument that the doctors' lack of opinions as to causation were equivalent to a negative opinion.

In general, an expert witness cannot base opinions on mere conjecture or guess.  Dyback v. Weber, 114 Ill.2d 232, 102 Ill.Dec. 386, 500 N.E.2d 8 (1986).   In other words, experts cannot base opinions on what may have occurred or what the expert believed might have happened in a certain situation.   Schuler v. Mid-Central Cardiology, 313 Ill.App.3d 326, 246 Ill.Dec. 163, 729 N.E.2d 536 (2000).   The determination as to what is admissible testimony is a matter within the sound discretion of the trial court.  Schuler, 313 Ill.App.3d 326, 246 Ill.Dec. 163, 729 N.E.2d 536.

Here, Dr. Cusick was asked to give an opinion as to the causation of Ferro's pericardial effusion on direct examination.   He was unable to provide one.   On cross-examination, both Dr. Cusick and Dr. Veeragandham testified that they could not say within a reasonable degree of medical certainty that the motor vehicle accident caused the second pericardial effusion.   Contrary to Ferro's assertion, they did not attempt to speculate as to the cause or guess what might have happened during the accident.   Both doctors testified that they were unable to speculate and that any opinion would not be based on a reasonable degree of medical certainty.   The testimony was not an expert's guess;  it was a refusal to guess.   Consequently, we find no abuse in the trial court's decision to allow their testimony.

The trial court also permitted defense counsel to make the argument in his closing that “three out of four doctors can't be wrong.”   Ferro maintains that this was error, and we are inclined to agree.   However, he failed to object to the comment during closing argument;  thus, the issue has been waived.   See Illinois State Toll Highway Authority v. Heritage Standard Bank and Trust Co., 163 Ill.2d 498, 206 Ill.Dec. 644, 645 N.E.2d 896 (1994).

Even if no waiver had occurred, when improper comments are made during closing argument reversal is appropriate only if the comments substantially prejudiced the challenging party.  Ramirez v. City of Chicago, 318 Ill.App.3d 18, 251 Ill.Dec. 619, 740 N.E.2d 1190 (2000).   A reviewing court will not grant a new trial unless the argument clearly denied plaintiff a fair trial when that trial is viewed in its entirety.  LID Associates v. Dolan, 324 Ill.App.3d 1047, 258 Ill.Dec. 592, 756 N.E.2d 866 (2001).   Here, defense counsel's improper comments were brief and isolated.   When viewed in light of the entire closing argument as well as the evidence adduced at trial, the statement did not substantially prejudice Ferro's case.

III.

Cross-examination of Dr. Cusick and Dr. Veeragandham

Next, Ferro claims that the trial court erred in permitting Griffiths to elicit opinion testimony during the cross-examination of Dr. Cusick and Dr. Veeragandham which was beyond the scope of plaintiff's direct examination.

As a general rule, cross-examination is limited to the subject matter inquired into on direct examination.  People v. Williams, 66 Ill.2d 478, 6 Ill.Dec. 854, 363 N.E.2d 801 (1977).   However, on cross-examination, a litigant may properly develop circumstances lying within the witness's knowledge, which explain, discredit or destroy the witness's testimony on direct examination even though the questions may incidentally constitute a new matter that aids the cross-examiner's case.  Williams, 66 Ill.2d 478, 6 Ill.Dec. 854, 363 N.E.2d 801;  Anderson v. Mercy, 338 Ill.App.3d 685, 273 Ill.Dec. 174, 788 N.E.2d 765 (2003).   Facts and opinions which form the basis of the expert's opinion but which are not disclosed on direct examination may be developed on cross-examination.  Neal v. Nimmagadda, 279 Ill.App.3d 834, 216 Ill.Dec. 364, 665 N.E.2d 424 (1996).   The cross-examination of a witness may also elicit, emphasize or otherwise call the fact finder's attention to facts or opinions avoided or minimized on direct examination.  Anderson, 338 Ill.App.3d 685, 273 Ill.Dec. 174, 788 N.E.2d 765.

On direct examination, counsel for Ferro specifically asked Dr. Cusick if he was able to form an opinion at the time of treatment as to the cause of Ferro's pericardial effusion.   Dr. Cusick responded that he was not.   On cross-examination, defense counsel then asked Dr. Cusick to explain the possible causes of a pericardial effusion and whether Dr. Cusick could state within a reasonable degree of medical certainty if Ferro's pericardial effusion was caused by the accident. Ferro's attorney did not object to these questions on cross-examination.   Thus, the issue as to Dr. Cusick has been waived.   See Maciukevicius v. Zagorski, 172 Ill.App.3d 303, 122 Ill.Dec. 310, 526 N.E.2d 569 (1988) (failure to object to testimony during trial barred appellate review).

However, even if an objection had been made, the cross-examination of both Dr. Cusick and Dr. Veeragandham was within the proper scope of cross-examination.   On direct examination, both doctors answered questions regarding their diagnosis and treatment of plaintiff before and after the accident.   Both doctors were also asked to explain a pericardial effusion and its effect on the heart.   Dr. Cusick was further asked if he had an opinion as to the cause of plaintiff's second pericardial effusion.   On cross-examination, questions regarding possible causes of the effusion were based the doctors' treatment of plaintiff.   The questions were used to elicit and emphasize opinions stated during direct examination.   The questions further developed the complex medical circumstances lying within the doctors' knowledge.   Accordingly, questioning whether the doctors had an opinion as to the cause of Ferro's condition was within the proper scope of cross-examination.

IV.

Directed Verdict or Judgment Notwithstanding the Verdict.

Next, Ferro argues that the trial court erred in not directing a verdict on liability or, in the alternative, granting judgment notwithstanding the verdict.

Directed verdicts and judgments notwithstanding the verdict should be entered only in those cases in which all of the evidence, viewed in the light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand.  Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504 (1967).   In making this assessment, a reviewing court may not substitute its judgment for the jury's, nor may it reweigh the evidence or determine the credibility of the witnesses.  Donaldson v. Central Illinois Public Service Co., 199 Ill.2d 63, 262 Ill.Dec. 854, 767 N.E.2d 314 (2002).   We apply the de novo standard of review to the trial court's denial of a motion for directed verdict as well as its denial of a motion for judgment notwithstanding the verdict.  Donaldson, 199 Ill.2d 63, 262 Ill.Dec. 854, 767 N.E.2d 314;  Gathings v. Muscadin, 318 Ill.App.3d 1091, 252 Ill.Dec. 791, 743 N.E.2d 659 (2001).

In this case, there is sufficient evidence to sustain the jury's decision.   Although Ferro contends that his second pericardial effusion was caused by the blunt force trauma he sustained in the accident after being struck by the oxygen tank, there was ample evidence from which the jury could have concluded otherwise.   Griffiths testified that she was not accelerating when she struck Hennis' van and that she was traveling less than five miles per hour. Dr. Dolehide, Dr. Cusick and Dr. Veeragandham testified that Ferro was recuperating from open heart surgery and had suffered a prior pericardial effusion only one week earlier.   Dr. Veeragandham stated that a second pericardial effusion could have developed between the first and second surgery absent any trauma.   Thus, the trial court properly denied Ferro's motions for directed verdict and for judgment notwithstanding the verdict.

V.

Failure to Exclude Certain Jurors

Ferro argues that he was denied a fair trial because the trial court failed to exclude jurors from the jury pool who were “against lawsuits in general.”

Prior to voir dire, the prospective jurors completed an interview form.   One of the questions on that form asked the jurors if they were “against lawsuits in general.”   Ferro claims that eight of the thirty jurors in the venire answered the question in the affirmative and that allowing those jurors to remain was reversible error.   However, Ferro has failed to provide an adequate record of this issue on review.   See Foutch v. O'Bryant, 99 Ill.2d 389, 76 Ill.Dec. 823, 459 N.E.2d 958 (1984) (plaintiff bears burden of presenting a sufficiently complete record to support claim of error).   The questionnaire has not been included.   The voir dire proceedings have not been included.   Plaintiff cannot state with certainty how many of those eight jurors, if any, actually served on the jury.   Without any memorialization of the jury selection process, we must presume that the jury was properly impaneled.   Cf. Reeves v. Brno, Inc., 138 Ill.App.3d 861, 93 Ill.Dec. 304, 486 N.E.2d 405 (1985) (reviewing court presumed trial court's ruling during closing argument was correct where appellant failed to provide transcript of closing argument).

VI.

Trial Court's Questioning of Dr. Dolehide

In his final argument in this appeal, Ferro maintains that the trial court gave undue weight to certain testimony by questioning Dr. Dolehide from the bench.   He argues that the court posed two questions to the doctor which discredited the witness and swayed the jury in favor of Griffiths' position.

The trial judge has the right to question a witness to enlighten himself as well as the jury on issues material to the case that may seem obscure.   People v. Falaster, 173 Ill.2d 220, 218 Ill.Dec. 902, 670 N.E.2d 624 (1996).   It is improper for the judge to assume the role of an advocate or suggest through those questions an opinion as to the credibility of the case.   Falaster, 173 Ill.2d 220, 218 Ill.Dec. 902, 670 N.E.2d 624.   The appropriate scope of questioning by the court depends on the facts and circumstances of the case and lies largely within the trial judge's discretion.  People v. Williams, 173 Ill.2d 48, 218 Ill.Dec. 916, 670 N.E.2d 638 (1996).

In this case, the trial judge did not abuse his discretion by asking Dr. Dolehide the questions.   The brief inquiry helped clarify a matter that the judge found to be somewhat confusing and obscure.   The judge did not indicate by his questions or his comments any view on the facts of the case or the credibility of the witness.   The questions posed to the doctor clarified a point that the judge believed had not been fully addressed by his testimony.   We cannot say that the questions resulted in an abuse of discretion.

VII. Sanctions

In a separate appeal (No. 3-04-0007), Ferro argues that the trial court erred in entering sanctions for fees against him when Griffiths was only given leave to file a motion for costs.

Prior to trial, Griffiths filed a motion for sanctions pursuant to Supreme Court Rule 219(c) (166 Ill.2d 219(c)), involving the evidence deposition of Dr. Cusick.   The trial court granted the motion and ordered defendant to file an affidavit in support of her motion for costs and to re-notice the motion.   No evidentiary hearing was held, and the trial court did not provide a written basis for its findings.

Following a verdict in her favor, Griffiths moved for costs pursuant to section 5-109 of the Code of Civil Procedure (735 ILCS 5/5-109 (West 2002)).   Her claim for costs included $270 for the appearance and jury demand and $1,365 for fees in connection with the previously filed motion for sanctions.   The trial court granted the motion and awarded Griffiths fees and costs totaling $1,635.

Rule 219(c) provides a range of sanctions a court may impose when a party fails to comply with discovery.   166 Ill.2d R. 219(c).  The decision to impose sanctions is within the sound discretion of the trial court.  Nationwide Mutual Insurance Co. v. Kogut, 354 Ill.App.3d 1, 289 Ill.Dec. 327, 819 N.E.2d 1127 (2004).   However, such deference is predicated on the necessary requirement that the trial court make explicit factual findings on which a court of review may make an informed decision.  In re Estate of Smith, 201 Ill.App.3d 1005, 147 Ill.Dec. 398, 559 N.E.2d 571 (1990).  Rule 219(c) directs that where a sanction is imposed the court “shall set forth with specificity the reasons and basis of any sanction so imposed either in the judgment order itself or in a separate written order.”   166 Ill.2d R. 219(c);  see also Chabowski v. Vacation Village Association, 291 Ill.App.3d 525, 228 Ill.Dec. 806, 690 N.E.2d 115 (1997) (trial court is required to give specific reasons for imposing Rule 219(c) discovery violation sanctions).   This reading of Rule 219(c) is consistent with our treatment of sanction orders in other contexts, including proceedings for sanctions under Rule 137.   166 Ill.2d R. 137;  Bertuli v. Gaull, 215 Ill.App.3d 603, 158 Ill.Dec. 997, 574 N.E.2d 1390 (1991) (sanction order vacated where trial court failed to provide factual basis in support of its decision).

In this case, although the trial court undoubtedly had reasons for its decision, it failed to express those reasons as required by Rule 219(c).  Furthermore, nothing in the record indicates defendant filed a subsequent request asking the judge to set forth with specificity her reasons for the imposed sanctions.   Accordingly, the sanction order of the circuit court assessing costs and fees against plaintiff is vacated.

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CONCLUSION

The judgment of the circuit court of Will County entered in favor of Griffiths is affirmed.   The sanction order awarding costs and fees is vacated.

No. 3-03-0943-Affirmed.

No. 3-04-0007-Vacated.

I would find that the trial court abused its discretion in allowing the defendant to offer into evidence photographs of the damage to the vehicles without expert testimony to show a correlation between lack of damage to the vehicles and injury to the plaintiff.   As the majority notes, whether to admit photographs is within the discretion of the trial court.  DiCosola v. Bowman, 342 Ill.App.3d 530, 276 Ill.Dec. 625, 794 N.E.2d 875 (2003).   I agree with the majority's finding that there is no rigid rule that proscribes the admission of photographs without an expert.   However, I am also mindful of the DiCosola court's concern that a jury not be allowed to engage in “unguided speculation” when invited by a party to “infer” that there is a correlation between the extent of vehicular damage and the extent of personal injuries.   The DiCosola court, based upon its own research, noted this concern articulated by the Delaware Supreme Court:

“In Davis v. Maute, 770 A.2d 36 (Del.2001) the Delaware Supreme Court held that a party in a vehicular personal injury case generally may not argue that there is a correlation between the extent of vehicular damage and the extent of a person's injury caused by the accident in the absence of expert testimony on that issue and may not rely on photographs of the vehicle(s) involved to indirectly accomplish the same purpose.   The Davis court decided that ‘[a]bsent such testimony, any inference by the jury that minimal damage to the plaintiff's car translates into minimal personal injuries to the plaintiff would necessarily amount to unguided speculation.’   Davis, 770 A.2d at 40.”  DiCosola, 342 Ill.App.3d at 537-38, 276 Ill.Dec. 625, 794 N.E.2d 875.

Here, the defendant sought admission of the photographs in order to invite the jury to infer from lack of damage to the vehicles that the impact was too light to cause the plaintiff's injuries.   In closing argument, defense counsel addressed the jury as follows:

“But look at the impact to the car.   You guys have-half of you have seen accidents lite this every day.   Minor fender benders, the ones that are in parking lots where it hits somebody, particularly a small car and a big van, it is not going to move it-Not only pictures show a minor impact * * * So what physically in your own common sense could possibly ram that [tank] into his chest.”

Defense counsel asked the jury to engage in exactly the king of “unguided speculation” against which the DiCosola court warned.

I disagree with the majority's characterization of this question as “close.”   The only reason for the admission of the photographs was to support the argument that lack of damage to the vehicles supports and inference that the impact did not cause the plaintiff's physical injuries.   As the DiCosola court points, without expert testimony to establish such an inference, the jury would be left to engage in unguided speculation.

Likewise, it was also improper to admit the photographs to rebut the plaintiff's testimony that the impact of the collision was “very heavy.”   Again, the DiCosola court addressed the same contention”

“In addition, the Davis court addressed the argument, similar to that presented by defendant to the trial court in the instant case, that the photographs of the minimal damage to the plaintiff's vehicle were admissible to support a commonsense inference that the plaintiff's complaints were not credible.   The court held that counsel could not rely upon photographs of the vehicle(s) involved to accomplish indirectly what the court had already determined to be an improper argument.  Davis, 770 A.2d at 41.”   DiCosola, 342 Ill.App.3d at 538, 276 Ill.Dec. 625, 794 N.E.2d 875.

I agree.   The defendant should not be allowed to invite unguided speculation under the guise of attacking the plaintiff's credibility.

I see no relevance of the photographs in the instant matter other than to advance the theory that the light damage to the vehicles translate into no injury to the plaintiff.   Such an argument could only be made by way of expert testimony as to the effect of degrees of impact upon the human body.

I would find that the trial court abused its discretion in allowing the photographs into evidence and allowing the argument therefrom that the plaintiff's injuries could not have been caused by the impact from the collision.   Because the question of causation of the plaintiff's injuries was the essential element in conflict, I would find that the photographs and the argument therefrom worked a prejudice upon the plaintiff.   I would therefore reverse the judgment of the circuit court and remand the matter for a new trial.

As I would remand on this issue, I would not reach the other issues raised in this appeal.

Justice LYTTON delivered the opinion of the court: