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Dicosola v. Bowman

July 11, 2003

GAETANO DICOSOLA, PLAINTIFF-APPELLEE,
v.
KARYN BOWMAN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County Honorable Thomas L. Hogan Judge Presiding.

The opinion of the court was delivered by: Justice Gallagher

UNPUBLISHED

Plaintiff, Gaetano DiCosola, prevailed in the underlying personal injury action against defendant, Karyn Bowman. Defendant filed a timely appeal, raising the following issues for our consideration: (1) whether the trial court erred when it granted plaintiff's motions in limine to exclude photographs depicting the apparent minimal damage to plaintiff's postcollision vehicle and prohibiting defendant from arguing, without expert testimony, that a correlation existed between the amount of damage to the vehicle and the extent of plaintiff's injuries; (2) whether the trial court erred when it prohibited defendant from arguing, without expert testimony, that plaintiff's injury was caused by the repetitive use of his arm; (3) whether the trial court correctly granted a directed verdict against defendant on the issue of negligence; and (4) whether the trial court correctly ruled that the evidence deposition fee of plaintiff's treating physician, Dr. Eugene Bartucci, and the related transcript fee for the evidence deposition, be charged to defendant as taxable costs.

BACKGROUND

On March 19, 1997, plaintiff was operating his vehicle in a Dominick's Finer Foods parking lot located at 6630 Ridge Road in Chicago. Plaintiff was stopped in one of the aisles, waiting for someone to back out of a parking spot. He had been stopped for approximately 20 seconds when defendant, who was not looking at plaintiff's vehicle, drove her vehicle through a parking space and collided with plaintiff's vehicle. Defendant admitted seeing plaintiff's vehicle just before she struck it and swerving in an attempt to avoid hitting plaintiff.

Plaintiff sought medical treatment for an elbow injury approximately four weeks after the accident. He first sought treatment from Dr. Bhatia. When his condition did not improve, he sought treatment from an orthopedic surgeon, Dr. Eugene Bartucci. Dr. Bartucci diagnosed plaintiff with medial epicondylitis, commonly referred to as "golfer's elbow." Dr. Bartucci administered two cortisone shots over a four-month period, but both failed to be effective as long-term treatment. Dr. Bartucci suggested physical therapy to attempt to treat the elbow. Before plaintiff could start treatment, he was involved in a second automobile accident. *fn1 Plaintiff began physical therapy in February 1998, which also failed to correct the injury. After a final cortisone shot was administered and failed to alleviate plaintiff's problems, his only remaining option was surgery. Plaintiff decided not to pursue that course of treatment.

Plaintiff subsequently filed suit against defendant. Prior to trial, plaintiff presented several motions in limine, some of which were granted by the trial court. The parties stipulated that the medical bills in this case are $1,763. There is no wage loss claim.

Dr. Bartucci's testimony was presented by way of an evidence deposition. Dr. Bartucci opined that the first collision caused plaintiff's medial epicondylitis and the second collision aggravated that condition. Dr. Bartucci also concluded that plaintiff's condition is permanent and a significant cause of past and future pain and disability. Defendant presented no expert witnesses.

On January 16, 2002, a jury returned a verdict in favor of plaintiff and against defendant in the amount of $47,063 plus costs. Defendant now appeals.

ANALYSIS

The first issue raised on appeal is whether the trial court erred when it granted plaintiff's motions in limine to exclude (1) evidence as to the dollar amount of property damage to plaintiff's or defendant's vehicle and (2) testimony or photographs regarding the damage to the vehicles. The trial court agreed with plaintiff that any evidence depicting the apparent minimal damage to plaintiff's postcollision vehicle was irrelevant to any issues before the court. The court decided that, absent expert testimony, the evidence was inadmissible to show that a correlation existed between the amount of damage to plaintiff's vehicle and the extent of plaintiff's injuries.

The parties disagree as to the standard of review that applies to the trial court's rulings on plaintiff's motions in limine. Generally, this court reviews a trial court's rulings on a motion in limine under an abuse of discretion standard. Beehn v. Eppard, 321 Ill. App. 3d 677, 680, 747 N.E.2d 1010, 1013 (2001), citing People v. Williams, 188 Ill. 2d 365, 369, 721 N.E.2d 539, 542 (1999). Thus, plaintiff contends that our review should be deferential because the admissibility of evidence is committed to the sound discretion of the trial court. As the Beehn court further explained, however: "[A] trial court must exercise its discretion within the bounds of the law. [Citation.] Where a trial court's exercise of discretion relies on an erroneous conclusion of law, *** our review is de novo. [Citation.]" Beehn, 321 Ill. App. 3d at 680-81, 747 N.E.2d at 1013, citing Williams, 188 Ill. 2d at 369, 721 N.E.2d 539. Defendant, citing Beehn and Williams, now suggests that our standard of review is de novo because the trial court's rulings on plaintiff's motions in limine were based on an erroneous conclusion of law.

The trial court decided that, absent expert testimony, defendant could not admit evidence of the property damage or the vehicle photographs merely to "argue that there is any relationship between the amount of the property damage and the nature and extent of the injury." Defendant's argument that the trial court misapplied the law is based on her contention that the trial court was required to admit the photographs into evidence. Defendant relies heavily on Cancio v. White, 297 Ill. App 3d. 422, 697 N.E.2d 749 (1998). The Cancio court, in concluding that the admission of photographs of a vehicle was proper, stated as follows:

"[T]he photos of plaintiffs' vehicle were relevant to the nature and extent of plaintiffs' damages. They were relevant because they showed little or no damage, which is something the jury could consider in determining what, if any, injuries [the plaintiffs] sustained as a result of the accident." Cancio, 297 Ill. App 3d. at 433, 697 N.E.2d at 756.

Although the Cancio court, in dicta, explained why it believed the photographs in that case to be relevant, it did not state that such photographs are always or automatically relevant. Cancio did not create a bright line relevancy standard nor did it hold that excluding such evidence constitutes reversible error. While not explicitly stating the rule, the court in Cancio acknowledged the rule that the admissibility of photographs is discretionary. Cancio, 297 Ill. App 3d. at 433, 697 N.E.2d at 756, quoting Bullard v. Barnes, 102 Ill. 2d 505, 519, 468 N.E.2d 1228, 1235 (1984)( "'a decision [to admit a photograph] normally rests within the discretion of the trial court' ").

Defendant notes that the Cancio court did not require expert testimony before the photographic evidence was admissible for the purpose of determining plaintiffs' injury, if any, and the nature and extent of that injury. Nonetheless, the plaintiffs in Cancio had specifically - and only - argued that the photographs were irrelevant because liability was not in issue. Cancio, 297 Ill. App 3d. at 433, 697 N.E.2d at 756. The Cancio court was not presented with, nor did it consider at all, the issue of whether expert testimony should have been required with respect to the admissibility of the photographs.

In further support of her argument that the trial court did not exercise its discretion within the bounds of the law, defendant also relies on Maple v. Gustafson, 151 Ill. 2d 445, 603 N.E.2d 508 (1992). *fn2 Defendant, however, overstates the importance of the photographic evidence considered by the Maple court. Similar to the Cancio case, although the court acknowledged the photographs of the plaintiff's postcollision vehicle as evidence considered at trial (Maple, 151 Ill. 2d at 458, 603 N.E.2d at 514), the admissibility issue was not squarely before the court. But more importantly, unlike the present case, the jury considered expert medical testimony presented by the defendant to show that the plaintiff sustained no injury. Maple, 151 Ill. 2d at 458-59, 603 N.E.2d at 515. In its opinion, the Illinois Supreme Court never discussed anything related to the admissibility of the photographs.

Thus, contrary to defendant's contention, 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 postcollision vehicle are automatically admissible to prove the extent of a plaintiff's bodily injury or lack thereof. The trial court here was not required to automatically admit the photographic evidence of the minimal damage to plaintiff's vehicle. We reject ...


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