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Appellate Court Broadens Need for Expert Testimony

October 2018

By Robert J. Winston

In Campbell v. Autenrieb 2018 Il App (5th) 170148 ( July 2018) the appellate court held that a defendant could not cross examine a treating doctor about other possible causes for plaintiff’s injuries unless defense counsel supported the cross examination with expert testimony.

Mr. Campbell was knocked down by defendant’s unleashed dog. He claimed severe spinal cord injuries and over $200,000.00 in lost wages. Plaintiff’s neurosurgeon testified the injuries were caused by the fall. Defense counsel asked the doctor if a person’s back could go out for no specific reason, i.e. idiopathic. Counsel then asked if a plethora of other reasons could also cause a back to go out. The doctor answered yes to both questions. Defense counsel offered no expert testimony to support these two questions.

The jury awarded $16,000.00 and plaintiff appealed. The appellate court reversed and remanded, ruling the cross examination was improper without expert testimony in support thereof.

The court reasoned the Supreme Court holding in Voykin required expert testimony. In Voykin the Supreme Court held without expert testimony, the defense could not argue a prior injury was the cause of the injuries. That has now been extended to subsequent injuries.

In Campbell the defense counsel argued he did not mention either prior or subsequent injuries and therefore did not violate Voykin. The appellate court found this to be a distinction without a difference. The court said defense counsel attempted to present a phantom cause without supporting testimony.

Defendant said the ruling in Hahn v. Union Pacific allowed this questioning. In that case, after reviewing plaintiff’s medical records that disclosed a prior injury a neurosurgeon was allowed to testify that the prior injury, could have caused the immediate injuries. The appellate court disagreed, stating in Hahn the doctor had reviewed records which contained information about a prior accident. That laid the foundation for the doctor’s testimony. However, in Campbell there was no foundation laid. The testimony was based upon events that never occurred. Therefore, the testimony was speculative.

This case demonstrates that if defense counsel is going to argue a nonevent or a prior or subsequent injury is the cause of the present condition of ill being, expert testimony is going to be needed. Defense counsel could attempt to have the treating doctors testify, but will need them to have reviewed the medical history of the plaintiff. That will rarely if ever happen.

  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • IRTB
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
  • Chicago Bar Association
  • Workers' Compensation Lawyers Association
  • IRTB
  • DRI - The Voice of the Defense Bar
  • The Illinois Association of Defense Trial Counsel
  • Illinois Self-Insurers' Association
10 South LaSalle Street, Suite 900
Chicago, IL 60603
Phone: 312-425-3131
211 Landmark Drive, Suite C2
Normal, IL 61761
Phone: 309-862-4914
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