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Voykin v. Estate of Gordon A. Deboer

July 23, 1999

MARK A. VOYKIN, PLAINTIFF-APPELLANT,
v.
ESTATE OF GORDON A. DEBOER, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Lake County. No. 96--AR--1953 Honorable Terrence J. Brady, Judge, Presiding.

The opinion of the court was delivered by: Justice Geiger

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Mark Voykin, the plaintiff in this personal injury case, appeals from a judgment in favor of the defendant, the estate of Gordon A. DeBoer. The central issue on appeal is whether the trial court erred by admitting evidence of plaintiff's prior injuries without evidence of a causal link between them and his present injuries. We conclude that a foundation of some evidence of a causal link between the plaintiff's prior injuries and his present injuries is required before the admission of evidence of the prior injury is allowed. We therefore reverse and remand.

The plaintiff's complaint against the defendant arose from an automobile accident. On January 31, 1996, the plaintiff was operating an automobile that was stopped for a traffic signal. Another automobile, driven by Gordon A. DeBoer, collided with the rear end of the plaintiff's automobile (the accident). The plaintiff filed a complaint against DeBoer alleging that DeBoer's negligence caused the accident and that the plaintiff suffered bodily injuries as a result of the accident. On June 10, 1997, an award of arbitration regarding the matter was filed in the circuit court of Lake County. DeBoer subsequently rejected the award and the case was set for trial. Before the trial began, DeBoer died and his estate was substituted as the party defendant.

At trial, the plaintiff called Chinyung See, a licensed medical doctor, as a witness. Dr. See's testimony included the following. The plaintiff first came into Dr. See's office on February 1, 1996. The plaintiff complained of back and neck injuries he claimed resulted from an automobile accident. Dr. See examined the plaintiff and took X rays. Dr. See concluded that the plaintiff had suffered lower back injuries and neck injuries. Dr. See described the plaintiff's lower back injuries as medial mild degenerative changes in the lumbar spine with lumbar sacralization of the L-5 spine. Dr. See described the plaintiff's neck injuries as muscle spasms with a decreased range of motion and reversal of the lordosis of the neck. He then prescribed a course of treatment for the plaintiff's injuries that included physical therapy. Dr. See treated the plaintiff for the next two to three months. Treatments were terminated after the plaintiff obtained an optimal level of relief. Dr. See testified that the accident caused the plaintiff's injuries.

On cross-examination, defendant's counsel produced a document that the plaintiff completed at Dr. See's office on February 1, 1996. The document was a form that contained the medical history of the plaintiff. Over the plaintiff's objections, the trial court allowed Dr. See to testify regarding a prior back injury that was listed on the form. Dr. See acknowledged that the medical history stated that the plaintiff had suffered a back injury in April 1990. Dr. See testified that he did not ask the plaintiff for additional information regarding the prior back injury. Dr. See was also unaware that the plaintiff had been treated by an orthopedic surgeon in 1990 and that another physician had prescribed physical therapy for the plaintiff in May 1995. Dr. See acknowledged that the plaintiff had not advised him that, within seven or eight months before the accident, the plaintiff had difficulty sitting for a period of one hour because of back pain. Dr. See agreed that such information would be important to know in the diagnosis and treatment of an injury.

After Dr. See completed his testimony the plaintiff renewed his objection to See's testimony regarding the prior back injury. The plaintiff argued that the testimony was improper because it did not establish, to a reasonable degree of medical certainty, that the prior injury was related to his present complaints of ill being. Defendant responded that the testimony was relevant because the plaintiff's prior injury was to the same part of the body as his present injury. The trial court denied the objection.

The plaintiff then testified that he had been a police officer for about eight years. On the day following the accident, the plaintiff went to Dr. See's office because he had neck and back pain. When he first went to Dr. See, the plaintiff rated the pain in his neck as a 7 or 8 on a scale of 1 to 10. After being treated by Dr. See over a period of about 3 months, the plaintiff rated the pain in his neck as a 2 or 3 on a scale of 1 to 10. After the treatment was completed, the plaintiff continued to experience occasional pain in his neck and back. The plaintiff attributed this pain to the accident.

On cross-examination, the plaintiff was asked about his prior injuries. The plaintiff objected on the ground that the defendant had not introduced medical testimony which established a relationship between the prior injury and the plaintiff's current condition. The trial court overruled the objection. The plaintiff then testified that he had actually suffered the prior back injury in April 1991, not April 1990, as indicated on Dr. See's medical history form. In April 1991, the plaintiff suffered an injury to his lower back while on duty as a police officer. As a result of the injury, the plaintiff sought and received medical treatment from an orthopedic surgeon. The plaintiff was asked whether the orthopedic surgeon had requested that the plaintiff have an MRI in 1994. The plaintiff responded that he was not certain of the date.

During the plaintiff's cross-examination, the defendant's counsel also produced a document from Sports Therapy Physical Therapy Center (STPTC). The plaintiff recalled receiving physical therapy at STPTC. The defendant's counsel then asked the plaintiff about the document. The plaintiff recalled an interview related to his therapy at STPTC in May 1995. During the interview, the plaintiff told the physical therapist the details of his 1991 back injury; that he had neck problems secondary to playing hockey when he was six years old; that he was taking numerous Ibuprofen daily to reduce lower back complaints; that he had an MRI taken of his lumbar spine about two years previously; that sitting was the most troublesome to his back and that he could tolerate only about one hour of sitting; that he worked out with martial arts five days a week even though it aggravated his lower back pain because it was helping with a wrist ailment; and that his right side lower back condition was very painful, rating a 6 out of 10. The plaintiff also acknowledged that he had been treated by a doctor of internal medicine named Sudovich early in the 1990s.

The defendant's offered the admission of the document containing the plaintiff's interview with his therapist at STPTC. The trial court admitted the document over the plaintiff's objection.

After the defendant rested, the trial court granted the plaintiff a directed verdict as to the defendant's negligence. The trial court noted that it was not granting a directed verdict as to causation or injuries.

The plaintiff then tendered an additional jury instruction. The tendered instruction was a verbatim copy of Illinois Pattern Jury Instructions, Civil, No. 30.21 (3d ed. 1995), including the brackets around the optional choices in the instruction. As tendered, the instruction stated:

"If you decide for the plaintiff on the question of liability, you may not deny or limit the plaintiff's right to damages resulting from this occurrence because any injury resulted from [an aggravation of a pre-existing condition] [or] [a pre-existing ...


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