Opinion
4-22-0981
06-21-2023
JEAN DANIELSON, Plaintiff-Appellant, v. WILLIAM WIEMELT and SPROUTS INN, INC., Defendants-Appellees.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Adams County No. 20L7 Honorable Amy C. Lannerd, Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court. Justice Doherty concurred in the judgment. Justice Steigmann specially concurred.
ORDER
HARRIS, JUSTICE
¶ 1 Held: Plaintiff failed to establish that the trial court misapplied or misinterpreted Illinois Supreme Court case authority and erred in denying her (1) pretrial motions in limine, (2) motions for partial summary judgment, or (3) motions for a directed verdict or a judgment notwithstanding the verdict.
¶ 2 Plaintiff, Jean Danielson, brought a negligence action against defendants, William Wiemelt and Sprouts Inn, Inc. (Sprouts Inn), seeking damages for injuries she allegedly sustained during a 2018 motor vehicle accident. The trial court granted partial summary judgment in plaintiff's favor on the issues of duty and breach; however, a jury returned a verdict in favor of defendants on the remaining issues. Plaintiff appeals, arguing the court failed to follow the Illinois Supreme Court's decision in Voykin v. Estate of DeBoer, 192 Ill.2d 49, 733 N.E.2d 1275 (2000), and require that defendants establish the relevance of preaccident injuries through competent expert testimony. She contends that, as a result, the court erred by denying several motions she filed, including (1) a motion for a directed verdict on the issues of proximate cause, necessity of medical treatment, and the total value of reasonable medical treatment; (2) motions in limine to exclude evidence regarding her past injuries and medical treatment; (3) motions for summary judgment on the issues of proximate cause and the necessity of medical treatment; and (4) a motion for a judgment notwithstanding the verdict. We affirm.
¶ 3 I. BACKGROUND
¶ 4 In February 2018, plaintiff's vehicle was stopped at a red light when it was struck from behind by a truck driven by defendant Wiemelt. At the time of the collision, Wiemelt was employed by defendant Sprouts Inn and "performing his duties *** within the scope of his employment." In January 2020, plaintiff filed her complaint against defendants, alleging Wiemelt negligently operated his vehicle and, as a result, she was injured and "eventually [underwent left] knee replacement surgery." Plaintiff sought damages for past and future pain and suffering, medical expenses, and loss of income. (The record reflects plaintiff's husband, Terry Danielson, was also originally named as a plaintiff in the underlying action and brought claims against defendants for loss of consortium. However, his claims were later voluntarily dismissed, and he was stricken as a plaintiff.).
¶ 5 In March 2020, defendants disclosed that they had retained Dr. Rodney Herrin to render opinions regarding the cause of plaintiff's alleged injuries and her need for medical treatment. However, in August 2021, they filed an "Abandonment of Expert," stating they were formally abandoning Dr. Herrin as their expert witness in the matter.
¶ 6 In December 2021, plaintiff filed a motion for partial summary judgment on the issues of duty and breach of duty. Citing defendants' response to her request to admit facts and Wiemelt's discovery deposition, she alleged no genuine issue of material fact existed as to those issues because defendants admitted that (1) the front of Wiemelt's vehicle struck the rear of her vehicle as it was stationary at a red light and (2) Wiemelt's speed at the time of the impact was greater than 10 miles per hour. The trial court granted plaintiff's motion.
¶ 7 In December 2021, plaintiff also filed a motion for partial summary judgment as to the issue of proximate cause. She asserted her claim that she sustained left knee injuries during the motor vehicle accident was supported by her treating surgeon, Dr. Brian Tallerico, who opined that her need for medical treatment and left knee surgery after February 2018 was caused by the accident. Plaintiff further argued that, under Voykin, "a defendant needs to present expert medical testimony to establish both relevance and foundation for evidence of a prior event or events *** causing or contributing to an injury." She noted, however, that in August 2021, defendants abandoned their medical expert. Accordingly, she asserted defendants had no evidence to counter Dr. Tallerico's opinions and, thus, "any defense as to proximate cause [was] waived."
¶ 8 In January 2022, defendants filed a response to plaintiff's motion for partial summary judgment on the issue of proximate cause. They maintained Dr. Tallerico's causation opinions were based on a history provided by plaintiff that she had no left knee problems prior to the motor vehicle accident. However, defendants asserted that both plaintiff's pre- and postaccident medical records contradicted that history. Specifically, they maintained medical records showed that plaintiff (1) underwent physical therapy for spine and bilateral knee pain in September 2007; (2) sought medical care in June 2010, reporting left knee and left hip pain following a fall the previous winter, and receiving a referral to an orthopedic doctor; (3) reported a history of back pain and that her knees were" 'bone on bone'" prior to undergoing a cataract extraction in April 2015; (4) complained in January 2017 "of intermittent pain and stiffness/swelling in her left bilateral knees" and was taking hydrocodone for pain as needed; and (5) provided a history of pain that began" 'November 17'" to Dr. Tallerico's nurse prior to the post-accident surgery he performed on plaintiff's left knee. Defendants acknowledged that when confronted with plaintiff's conflicting medical records and statements during his deposition, Dr. Tallerico "stood by" his causation opinions. However, they argued that "[t]he evidence of [plaintiff's] pre-accident knee problems" created "an issue of fact for the jury to decide regarding the issue of causation," and that a jury would not be required to accept Dr. Tallerico's opinions.
¶ 9 Both parties attached Dr. Tallerico's January 2021 discovery deposition, or portions thereof, to their filings. The deposition showed Dr. Tallerico was board certified in orthopedic surgery and first saw plaintiff in March 2018. At that time, plaintiff provided a history of being involved in a motor vehicle accident, during which her vehicle was rear-ended, and she hit her left knee "against the dashboard and panel pretty hard." When asked what plaintiff reported about her pre-accident left knee condition, Dr. Tallerico testified plaintiff "stated she never had any knee problems prior to the motor vehicle collision." Regarding plaintiff's reported mechanism of injury, Dr. Tallerico testified:
"I'm not a physics major, but I don't see why getting hit in any fashion in any vehicle could cause you to hit your knee against the dashboard. Obviously if you were struck head on at 60 miles an hour, its higher. However, I just have to go with what my patients tell me."
¶ 10 Following a post-accident magnetic resonance imaging (MRI) scan, Dr. Tallerico diagnosed plaintiff with a meniscal tear and patellofemoral arthritis in her left knee. He gave plaintiff a corticosteroid injection and recommended surgery, which he performed in June 2018. Dr. Tallerico opined that both plaintiff's left knee condition and the treatment he provided were causally related to the February 2018 accident. He testified there was no objective test, such as a pre-accident MRI, that established the presence or absence of plaintiff's meniscal tear prior to the motor vehicle accident. However, given "the onset of [her] pain," he "assume[d] that the car accident caused the tear." Dr. Tallerico stated as follows:
"That's a pretty big tear for somebody, and she was a very active individual as I recall, she would be pretty limited I believe with a tear like that had it been ongoing or preexisting. In other words, in my professional medical opinion she would have sought medical treatment in the past for that knee with that type of tear."
Regarding the arthritic changes that he found in plaintiff's knee, Dr. Tallerico stated it was possible that they preexisted the car accident. However, he stated that "arthritis *** can be quiescent. It can be dormant until an injury occurs that aggravates it."
¶ 11 Dr. Tallerico identified the basis of his causation opinion as the "subjective history" plaintiff provided that "she never had left knee problems prior to being referred to [him] for left knee pain." He agreed that was the most significant factor in formulating his causation opinion "because there were no medical records to the contrary."
¶ 12 During questioning by defense counsel, Dr. Tallerico was presented with medical records, showing plaintiff complained of left knee pain prior to the February 2018 motor vehicle accident. He agreed that those records were inconsistent with the history plaintiff provided to him after the accident; however, the inconsistencies did not change his opinion as to causation and plaintiff's need for treatment. Dr. Tallerico continued to opine that the car accident likely aggravated plaintiff's arthritic condition and "more than likely caused the meniscus tear." He noted the meniscus tear was not "a small tear." Although plaintiff previously sought medical care and complained of knee pain, he found she did not have "focused treatment" on her left knee. Dr. Tallerico testified that had the meniscus tear been present prior to the accident, plaintiff "would have been seen by an orthopedic surgeon" and "[m]ore than likely had more treatment than just mentioning it in a review of symptoms for other medical problems."
¶ 13 Relevant to this appeal, in January 2022, plaintiff also filed motions in limine to bar defendants from presenting any prior injury evidence. First, according to plaintiff, defendants intended to call witnesses, including plaintiff's former physical therapist Greg Reis, to provide evidence of her pre-accident medical treatment, although the witnesses were not qualified to give any medical opinions. Plaintiff argued that under Voykin, expert testimony was required to support any information provided by nonmedical witnesses. Plaintiff asserted that, in the absence of expert medical testimony, the trial court should bar nonmedical witnesses, including Reis, "from testifying *** to [her] past medical treatment."
¶ 14 Second, plaintiff asked the trial court to bar defendants from "making any argument, innuendo, or casting hyperbole that" her post-accident knee injuries and treatment were caused or aggravated by some event other than the motor vehicle accident. She argued that under Voykin, a defendant had to present expert medical testimony to establish both the relevance and foundation of evidence the defendant wished to present relative to the issue of causation. Plaintiff maintained as follows:
"Without the requisite foundation, arguments concerning proximate cause of an event other than the subject event are inadmissible and improper because it leads to jury confusion. Defendants] [are] not presenting a medical expert. Thus, any evidence going to any past medical issue or problem is irrelevant because Dr. Tallerico already opines that the subject collision caused the need for her treatment including two surgeries. Defendant cannot present evidence through a medical
doctor that pre-collision and post-collision conditions or activities were a cause of the subject treatment."
¶ 15 On February 24, 2022, the trial court entered an order granting plaintiff's motion for partial summary judgment on the issues of duty and breach but denying her motion for partial summary judgment on the issue of proximate cause. The following day, the court conducted a pretrial hearing in the matter and heard argument on plaintiff's motions in limine. It granted plaintiff's motions, in part, ruling that defendants were barred from presenting substantive evidence of plaintiff's past medical history relative to the issue of proximate cause. It concluded that under Voykin, expert testimony was necessary "to corollate [plaintiff's current condition] with some prior existing injury." Nevertheless, the court also determined that prior injury evidence could be used for impeachment purposes, stating as follows:
"However, [case authority] does indicate essentially [that defense counsel] is absolutely able to on cross-examination bring up these issues, bring up this fact that [plaintiff] was a terrible subjective reporter of her prior medical history and if it doesn't come out on direct, [defense counsel] certainly gets to bring that up on cross. It is sort of the pick your poison is what it says [in the relevant case authority]. So she's either going to acknowledge the prior complaints and the prior history or-and/or if she denies that, [defense counsel] certainly has the right to impeach her with those inconsistent statements ***."
The court stated its belief that defendants could present evidence of plaintiff's prior medical treatment through Reis's testimony, so long as he did not testify "as to causation or any of those issues" and he was "just testifying to encounters."
¶ 16 In March 2022, plaintiff filed a motion to reconsider the trial court's February 24, 2022, ruling denying her request for summary judgment on the issue of proximate cause. In April 2022, she also filed a motion for partial summary judgment on the necessity of medical treatment. As to the latter motion, plaintiff relied on Dr. Tallerico's causation opinions relating her left knee injuries and medical treatment to the motor vehicle accident. She also noted that defendants had abandoned their medical expert and argued that under Voykin, they could present no contrary evidence. Defendants filed a response, adopting the same arguments they made in opposition to plaintiff's motion for partial summary judgment on the issue of proximate cause.
¶ 17 On May 27, 2022, the trial court conducted a pretrial hearing and addressed both plaintiff's motion to reconsider its February 24, 2022, ruling and her motion for partial summary judgment on the necessity of medical treatment. Regarding her motion to reconsider, plaintiff, citing Voykin, argued that without testimony from a medical doctor, defendants could not show the relevancy of evidence related to her past complaints of knee pain. She noted Dr. Tallerico's proximate cause opinion in her favor, which she maintained was uncontroverted, and asserted that under Voykin, Dr. Tallerico's opinions "[became] dispositive" for purposes of summary judgment.
¶ 18 Defendants argued that evidence of plaintiff's past complaints and treatment was admissible for impeachment purposes. They noted that Dr. Tallerico stated he based his causation opinions on the history plaintiff provided and that he did not have the benefit of her prior medical records. Defendants argued they did not need an expert to controvert Dr. Tallerico's opinions and that "[c]ross-examination should be sufficient."
¶ 19 The trial court denied plaintiff's motion to reconsider. In setting forth its decision, the court reiterated its finding that evidence of plaintiff's prior knee complaints could be used for purposes of impeaching plaintiff. It further concluded that triable issues of fact existed with respect to the believability of Dr. Tallerico.
¶ 20 The trial court also denied plaintiff's motion for partial summary judgment on the necessity of medical treatment, finding that to grant that motion when the issue of proximate cause remained in question was putting "the cart before the horse." Plaintiff later filed a motion to reconsider that ruling, which the court also denied. In setting forth its decision, the court rejected plaintiff's argument that her expert's opinion had to be accepted as a matter of law because defendants did not have their own expert. It noted defendants were contesting whether the motor vehicle accident was a proximate cause of plaintiff's injuries and her need for treatment, and it stated there were "issues of material fact which bear directly on the credibility of witnesses."
¶ 21 In July 2022, a jury trial was conducted. Plaintiff testified on her own behalf, and she presented the testimony of her husband and a videotaped evidence deposition of Dr. Tallerico taken on July 1, 2022. She further introduced both her pre- and post-accident medical records into evidence and presented photographs of the vehicles involved in the accident. Additionally, plaintiff read into evidence defendants' responses to her request to admit facts, which showed defendants admitted that the front of Wiemelt's vehicle struck the rear of plaintiff's Nissan Altima as it was stationary at a red light, Wiemelt's speed at the time of impact was greater than 10 miles per hour, and Wiemelt was driving a Chevrolet Silverado 2500 HD extended-cab truck that weighed more than 6000 pounds.
¶ 22 The appellate record does not contain plaintiff's specific exhibits; however, plaintiff's pre-accident medical records were attached to one of defendants' pretrial filings. They show that in September 2007, plaintiff underwent physical therapy with Reis at Advance Physical Therapy for spine and bilateral knee pain. She identified the mechanism of injury as a fall five years earlier. In June 2010, plaintiff sought medical care, complaining of left hip and left knee pain due to a fall the previous winter. Records indicate she reported that the pain interfered with her daily activities. The plan for treatment included a referral to an "ortho." In April 2015, plaintiff underwent a cataract extraction, and her records contain a notation that her knees were" 'bone on bone.'" Additionally, in January 2017, plaintiff visited her doctor and complained of "intermittent pain and stiffness/swelling in her bilateral knees, thumbs[,] and hand joints that ha[d] been going on for a few months." Her records reflect she was taking hydrocodone as needed for pain.
¶ 23 The appellate record also does not contain Dr. Tallerico's videotaped evidence deposition. However, it does include a transcript of that deposition appended to the parties' posttrial filings. The transcript shows Dr. Tallerico testified similarly to his discovery deposition and opined plaintiff's left knee condition of ill-being after February 2018 was causally related to the motor vehicle accident. On direct examination, plaintiff questioned Dr. Tallerico about her preaccident medical records, which contained prior knee-related complaints. Dr. Tallerico maintained he relied on those records when forming his opinions. However, he stated the records had little to no bearing on his opinions because they did not reflect that plaintiff was experiencing significant or serious knee-related issues prior to the February 2018 motor vehicle accident. On crossexamination, Dr. Tallerico agreed that prior to his January 2021 discovery deposition, he had received no information regarding plaintiff's pre-accident left knee condition. Further, he acknowledged previously testifying that plaintiff told him she never had any knee problems prior to the motor vehicle collision. Dr. Tallerico also agreed that one basis for his opinions in the case was the history reported by plaintiff.
¶ 24 Plaintiff's husband, Terry, testified that prior to the motor vehicle accident plaintiff was busy, in "great shape," and went to CrossFit five days a week. Regarding injuries to plaintiff's left knee, Terry testified that plaintiff fell on some ice in 2007. He stated she "took physical therapy" but was "back to normal" in approximately a month. Terry asserted that from 2008 to early 2018, he did not observe plaintiff experiencing any knee-related issues, nor did she ever tell him that she had pain in her left knee. After the motor vehicle accident in February 2018, plaintiff experienced intense pain and had difficulty "doing basic things."
¶ 25 Plaintiff testified she was born in March 1950 and was 72 years old at the time of trial. On direct examination, she identified her pre-accident medical records and testified regarding her prior knee-related issues and treatment. Plaintiff acknowledged that in 2007, she slipped on ice and fell on her knees. She asserted that at that time she experienced "grinding in [her] knees" and went to physical therapy. In 2010, she sought medical treatment and reported experiencing knee and hip pain. In January 2017, plaintiff saw her doctor and complained of intermittent stiffness and swelling in her knees, thumbs, and hands. She testified that, at that time, she was taking pain medication but asserted it was "[n]ot very much." In 2015, plaintiff had eye surgery and reported to her medical provider that she "had knee issues." She also acknowledged being referred to a specialist "for [her] knee" before the accident. However, she did not follow through on seeing one because she "didn't think the pain was that significant."
¶ 26 Plaintiff maintained that between 2007 until the end of 2017, she had knee pain "a couple times a year on and off." In the month before the February 2018 collision, her left knee "was fine." Plaintiff testified she was "going to CrossFit five days a week" and did not have pain like she did before.
¶ 27 When describing the motor vehicle accident, plaintiff testified she was stopped at a red light, waiting for the light to change. When she looked in her rearview mirror, plaintiff saw Wiemelt's vehicle "about four blocks away." She estimated he was traveling "40 miles an hour." Plaintiff stated she felt one "forceful" impact from the collision, which caused her head to hit the steering wheel. Also, her left leg and knee twisted and were "shoved and jammed up underneath the steering wheel and the dashboard." Immediately after the collision, she exited her vehicle and her left leg "started to buckle." She testified she also felt significant pain in her left hip, knee, and ankle. After the collision, plaintiff went to the hospital and sought emergency room care.
¶ 28 On cross-examination, plaintiff recalled that relative to her pre-accident left knee condition, she told Dr. Tallerico that she had "aches and pains and some swelling." She stated she thought she told Dr. Tallerico about the physical therapy she had in 2007. Plaintiff stated she did not remember telling Reis, who was her physical therapist in 2007, that she experienced a fall five years earlier. Plaintiff further testified that she did not recall the incident set forth in her medical records from June 2010, which described a fall that occurred in the winter, and she agreed she did not report that incident to Dr. Tallerico. She acknowledged that when seeking treatment for cataracts in April 2015, she reported that her knee was "bone on bone." Plaintiff asserted she formed that opinion "because [she] could hear some crinks" in her knee and "everybody who was around [her] told [her] that was bone on bone." Additionally, she acknowledged being on medication for joint pain in January 2017, but she asserted it was primarily for her hands. Finally, plaintiff denied reporting to Dr. Tallerico's nurse prior to her knee surgery that her knee pain began in November 2017. She asserted she told the nurse 2007 instead, and the nurse must have misunderstood her.
¶ 29 During cross-examination, plaintiff testified that her knee pain was about a 4 on a 10-point scale. When asked how her pain was in 2020, at the time of her discovery deposition in the case, plaintiff testified she thought "it was much better." When reminded that she reported during her deposition that her pain "was a 12," plaintiff responded that "everybody exaggerates."
¶ 30 During their case-in-chief, defendants read a portion of Reis's evidence deposition into evidence. Reis testified he was a physical therapist and treated plaintiff. He saw plaintiff on September 6, 2007, for an initial evaluation. She had been diagnosed with "spine omego and bilateral knee joint pain, left leg," and she rated her knee pain as a 6 on a 10-point scale. Reis testified plaintiff provided a history of having fallen five years earlier. He further stated that he noted crepitus, which he described as "a condition where the back side of the kneecap starts to rub *** with bending and straightening of the knee," causing a "popping sound that can be felt and heard." Reis testified such a condition could progress over time if not taken care of.
¶ 31 Plaintiff also read a portion of her cross-examination of Reis into evidence. During questioning by plaintiff, Reis testified a person could live with crepitus and, generally, the condition was not debilitating. Further, he testified that surgery was one option to treat crepitus, "if the physician thinks that's something they can correct with surgery." The condition could also be treated conservatively with anti-inflammatories and exercise.
¶ 32 Following the presentation of Reis's testimony, the defense rested, and plaintiff moved for a directed finding in her favor on the issues of proximate cause and necessity of medical treatment. Again, she argued the only evidence presented as to proximate cause was from Dr. Tallerico, and that defendants had abandoned their expert and did not have medical testimony to controvert Dr. Tallerico's opinions. The trial court denied the motion, finding that although defendants clearly abandoned their medical expert, the "option of cross-examination was available to them." The court indicated that matters brought out on cross-examination were "an issue in evaluating the expert," and that enough information had been presented through cross-examination to raise an issue of fact for the jury.
¶ 33 Thereafter, the jury returned a verdict in favor of defendants and against plaintiff. In August 2022, plaintiff filed a motion for a new trial on damages only or, in the alternative, a judgment notwithstanding the verdict. She raised essentially the same arguments under Voykin as she did in her previous motions and argued that the evidence overwhelmingly favored her as to the issues of proximate cause and necessity of treatment.
¶ 34 In October 2022, the trial court entered a written order, denying plaintiff's motion. In setting forth its ruling, the court found the "issues of proximate cause and damages were properly before the jury." It noted that "having an expert is not dispositive" and stated as follows:
"The mere fact that Plaintiff has the sole expert in the case does not mandate that the jury rule in favor of the Plaintiff on the issues of probable cause [sic] and damages. The jury may evaluate the credibility of all witnesses, including the expert. Moreover, the jury may also consider the basis and foundation for the expert's opinion."
The court also determined that the record contained sufficient evidence to support the jury's verdict. It found that viewing the evidence in the light most favorable to the nonmoving party, defendants, there were "significant factual disputes and witness credibility issues," which it stated the jury could properly have resolved in defendants' favor.
¶ 35 This appeal followed.
¶ 36 II. ANALYSIS
¶ 37 As stated, on appeal, plaintiff argues the trial court failed to follow the Illinois Supreme Court's decision in Voykin, which, according to plaintiff, provides that "[a] defendant must always prove the relevance of prior injuries with competent expert medical testimony." She complains that the court violated Voykin by not excluding any evidence of prior injuries and allowing defendants to read an excerpt of Reis's evidence deposition into evidence. Plaintiff argues "any evidence going to any past medical issue or problem was irrelevant because Dr. Tallerico *** opined that the subject collision caused the need for her treatment." In essence, she argues Dr. Tallerico's opinions were unassailable, and her pre-accident medical history was not relevant as a matter of law in the absence of testimony from a medical expert presented by defendants to controvert Dr. Tallerico's opinions. Plaintiff maintains the court should have granted her motions in limine to exclude all prior injury evidence, as well as her motions for summary judgement, a directed verdict, and a judgment notwithstanding the verdict. For the reasons that follow, we disagree.
¶ 38 A. Voykin
¶ 39 In Voykin, 192 Ill.2d at 52, the plaintiff claimed he suffered neck and back injuries following a motor vehicle accident with the defendant's decedent. During a jury trial, the plaintiff sought to prevent the defendant from introducing evidence that the plaintiff had suffered an injury to his lower back approximately five years before the accident. Id. He argued "such evidence was not admissible unless [the] defendant presented expert testimony demonstrating that the prior and present injuries were causally related." Id. The defendant disagreed, contending "expert testimony was not necessary because the injuries were to the same part of the body and continuity existed between the injuries." Id. The trial court sided with the defendant, allowing the defendant to question both the plaintiff and his doctor about the plaintiff's prior injury, introduce evidence related to the plaintiff's prior medical treatment, and introduce evidence that the plaintiff "previously suffered 'neck problems' and had been treated for carpal tunnel syndrome." Id. Following the presentation of evidence, the court granted the plaintiff's motion for a directed verdict on the issue of the defendant's negligence but left "questions of causation or injury" for the jury. Id. The jury later returned a verdict in favor of the defendant, and the plaintiff appealed. Id.
¶ 40 On review, the supreme court initially considered the propriety of the "same part of the body rule," which it noted had developed in the appellate court and allowed a defendant to introduce evidence of a plaintiff's prior injury to the same part of the body at issue in the litigation without a showing of a causal relationship between the current and prior injuries. Id. at 53. It rejected the rule, finding it was "nothing more than a bright-line relevancy standard," essentially providing that "if a plaintiff has previously suffered an injury to the same part of the body, then that previous injury is automatically relevant to the present injury simply because it affected the same part of the body." Id. at 57.
¶ 41 The supreme court held that "[f]or evidence of a prior injury to be admissible at trial, that evidence must be relevant," in that "[t]he evidence of the prior injury must make the existence of a fact that is of consequence either more or less probable." Id. It explained that there were three purposes for the introduction of evidence of a prior injury in cases like the one before it: "(1) to negate causation; (2) to negate or reduce damages; or (3) as impeachment." Id. The court stated that "[w]ith respect to causation, evidence of a previous injury is relevant only if it tends to negate causation or injuries." Id. "[F]or a prior injury to be relevant to causation, the injury must make it less likely that the defendant's actions caused any of the plaintiff's injuries or an identifiable portion thereof." Id. at 58. As to the issue of impeachment, the court further stated as follows:
"[A] prior injury may be relevant as impeachment. For example, a plaintiff may be examined with respect to his failure to disclose to his physician that he has previously suffered an injury to the same part of the body. Similarly, an expert may be examined about whether his opinion would change if the expert was aware of the plaintiff's prior injury. This does not mean, however, that every undisclosed prior injury to the same part of the body is grounds for impeachment. Just as with
the substantive admission of evidence, trial courts should not permit inquiry into this area unless the prior injury is relevant to a fact in consequence, i.e., whether the prior injury negates causation or negates or reduces the defendant's damages." Id.
¶ 42 The supreme court next determined that, typically, expert testimony would be necessary to establish the relevance of a prior injury to the current one. Id. 58-59. It stated as follows:
"Without question, the human body is complex. A prior foot injury could be causally related to a current back injury, yet a prior injury to the same part of the back may not affect a current back injury. In most cases, the connection between the parts of the body and past and current injuries is a subject that is beyond the ken of the average layperson. Because of this complexity, we do not believe that, in normal circumstances, a lay juror can effectively or accurately assess the relationship between a prior injury and a current injury without expert assistance. Consequently, we conclude that, if a defendant wishes to introduce evidence that the plaintiff has suffered a prior injury, whether to the 'same part of the body' or not, the defendant must introduce expert evidence demonstrating why the prior injury is relevant to causation, damages, or some other issue of consequence. This rule applies unless the trial court, in its discretion, determines that the natures of the prior and current injuries are such that a lay person can readily appraise the relationship, if any, between those injuries without expert assistance." Id. at 59.
¶ 43 In addressing the specific circumstances of the case before it, the supreme court held the trial court erred by "allowing [the] defendant to introduce evidence of [the] plaintiff's prior 'neck problems.'" Id. It noted that after the accident at issue, the plaintiff complained of back and neck pain. Id. at 60. During its case-in-chief, the defense introduced medical records that showed the plaintiff received pre-accident treatment for carpal tunnel syndrome and "told his physical therapist that he had 'neck problems' that were 'secondary to playing hockey since he was 6.'" Id. The court held such evidence should have been excluded because the evidence at trial did not demonstrate "what [the] plaintiff's 'neck problems' were, when he suffered them, or when he last suffered from symptoms." Id. The court further stated:
"Nothing about the evidence presented by [the] defendant has any tendency to make it less likely that [the] defendant caused [the] plaintiff's neck injury or that [the] defendant caused [the] plaintiff to suffer damages. Without expert testimony establishing both the nature of [the] plaintiff's prior 'neck problems' as well as the relationship between those prior problems and [the] plaintiff's current claim, an average juror could not readily appraise the effect of the prior problems upon [the] plaintiff's current claim." Id.
¶ 44 The supreme court concluded that the plaintiff was prejudiced by the erroneous introduction of evidence and that a new trial was required. Id.
¶ 45 B. Motions in Limine
¶ 46 We first address plaintiff's claim that the trial court erred by denying her motions in limine to bar defendants from presenting evidence and argument relative to her pre-accident injuries. As noted, plaintiff argues defendants were required to present their own expert testimony to establish the relevancy of such evidence.
¶ 47 In response, defendants argue plaintiff "waived" any objection she had to the evidence by introducing it herself during her case-in-chief. Alternatively, they contend the evidence was properly admitted.
¶ 48 "Generally speaking, evidentiary motions, such as motions in limine, are directed to the trial court's discretion," and the "trial court's ruling on such motions will not be disturbed on review absent an abuse of that discretion." In re Leona W., 228 Ill.2d 439, 460, 888 N.E.2d 72, 83 (2008). "A trial court will not be found to have abused its discretion with respect to an evidentiary ruling unless it can be said that no reasonable man would take the view adopted by the court." Id. However, if a court's ruling on a motion in limine is based on an interpretation of law, a de novo standard of review may apply. People v. Way, 2017 IL 120023, ¶ 18, 89 N.E.3d 355.
¶ 49 Further, "[t]he denial of a motion in limine does not in itself preserve an objection to disputed evidence that is introduced later at trial." Simmons v. Garces, 198 Ill.2d 541, 569, 763 N.E.2d 720, 738 (2002). "When a motion in limine is denied, a contemporaneous objection to the evidence at the time it is offered is required to preserve the issue for review." (Internal quotation marks omitted.) Id. Additionally, on appeal, a plaintiff may not complain that the trial court erred in allowing evidence following the denial of a motion in limine when the plaintiff "introduced the evidence themselves." Id.; see also Arkebauer v. Springfield Clinic, 2021 IL App (4th) 190697, ¶ 69, 189 N.E.3d 510 ("A party cannot complain on appeal that the trial court erred in admitting evidence that the party both failed to object to and introduced.").
¶ 50 Here, plaintiff filed motions in limine prior to trial, seeking to prevent defendants from presenting any prior injury evidence. The trial court denied the motions in part, finding evidence of plaintiff's prior knee-related injuries could be presented by defendants for impeachment purposes. Rather than face impeachment and object to the prior injury evidence in the event it was presented by defendants, plaintiff elected to introduce the evidence herself. Specifically, she submitted her past medical records into evidence, testified on direct examination regarding those records and her prior knee-related pain complaints, and questioned Dr. Tallerico on direct examination regarding the effect of those prior records and complaints on his opinions. Under these circumstances, we agree with defendants that plaintiff failed to preserve her challenge to the admission of the prior injury evidence for review by this court.
¶ 51 Moreover, even assuming plaintiff had properly preserved her pretrial objection to the prior injury evidence, we would find no error by the trial court in permitting defendants to present the evidence for impeachment purposes. As stated in Voykin, 192 Ill.2d at 58, a prior injury may be relevant to the issue of impeachment.
"[A] plaintiff may be examined with respect to his failure to disclose to his physician that he has previously suffered an injury to the same part of the body. Similarly, an expert may be examined about whether his opinion would change if the expert was aware of the plaintiff's prior injury. This does not mean, however, that every undisclosed prior injury to the same part of the body is grounds for impeachment. Just as with the substantive admission of evidence, trial courts should not permit inquiry into this area unless the prior injury is relevant to a fact in consequence, i.e., whether the prior injury negates causation or negates or reduces the defendant's damages." (Emphasis added.) Id.
In most cases, expert testimony is necessary to establish the relevance of a prior injury. Id. 58-59.
¶ 52 In this case, defendants presented evidence (both prior to trial and at trial) that plaintiff failed to disclose her prior knee-related complaints and treatment to Dr. Tallerico. The doctor testified during his discovery deposition that his causation opinion was based on the "subjective history" plaintiff provided that "she never had left knee problems prior to being referred to [him] for left knee pain." He indicated that was the most significant factor in formulating his causation opinion "because there were no medical records to the contrary."
¶ 53 Although defendants had abandoned their own medical expert, the above statements from Dr. Tallerico were sufficient to demonstrate the relevance of the prior injury evidence to the issue of causation without the need for additional expert testimony. Specifically, to establish the element of proximate cause in the underlying case, plaintiff relied on Dr. Tallerico's causation opinion. Thus, challenges to the basis of the doctor's opinion and his credibility tended to make it less probable that the motor vehicle accident at issue was a proximate cause of plaintiff's post-accident left knee condition. See id. at 57 ("Relevant evidence is evidence that has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." (Internal quotation marks omitted.)). Plaintiff's pre-accident complaints and treatment called into question Dr. Tallerico's favorable causation opinion because (1) plaintiff's pre-accident medical records were inconsistent with the subjective history she provided to Dr. Tallerico and (2) plaintiff's subjective history-that she never had left knee problems prior to the accident-was a basis for Dr. Tallerico's causation opinion. Accordingly, because defendants could show the relevancy of the prior injury evidence through their cross-examination of Dr. Tallerico, presentation of testimony from their own medical expert was unnecessary.
¶ 54 Additionally, we note that in setting forth its ruling below, the trial court relied on the First District's decision in Kayman v. Rasheed, 2015 IL App (1st) 132631, 31 N.E.3d 427, a case not cited by plaintiff on appeal. There, like in the present case, the parties were involved in a motor vehicle collision, during which the plaintiff's vehicle was struck from behind by a vehicle driven by the defendant. Id. ¶ 3. Following the collision, the plaintiff brought suit against the defendant, "claiming that the accident had caused her neck and back pain, headaches, and other symptoms." Id. ¶ 4. The defendant admitted negligence but disputed the extent to which the collision caused the plaintiff's injuries. Id.
¶ 55 During a pretrial deposition, the plaintiff denied that she had neck or back problems prior to the collision, which occurred in 2009. Id. However, the plaintiff's medical records were inconsistent with that claim, showing she "had complained of neck and back pain in January 2005 and May 2006 and underwent an MRI in 2006 as a result of [her] complaints." Id. The defendant deposed the plaintiff's family doctor, Dr. Conroy, who provided treatment to the plaintiff after the collision at issue, but who was not the plaintiff's physician at the time of her prior neck and back complaints. Id. The defendant showed Dr. Conroy the plaintiff's prior medical records and questioned him regarding those records. Id.
¶ 56 Prior to trial, the parties disputed the admissibility of the portions of Dr. Conroy's deposition testimony that referenced the plaintiff's pre-accident complaints of back and neck pain. Id. ¶ 12. Like in this case, the plaintiff argued evidence of a prior injury was inadmissible because the defendant did not offer any expert testimony to suggest a relationship between the prior complaints and her current symptoms. Id. Conversely, the defendant maintained that because the plaintiff previously denied experiencing pre-accident neck or back problems, excerpts of Dr. Conroy's deposition were admissible for impeachment purposes. Id.
¶ 57 The trial court sided with the defendant, finding evidence of the plaintiff's prior neck and back complaints in 2005 and 2006 could be used for impeachment purposes. Id. ¶ 13. On review, the plaintiff relied on Voykin to challenge the trial court's ruling. Id. ¶ 56. However, the First District agreed with the lower court, stating as follows:
"[E]vidence of the 2005-06 complaints contained in Dr. Conroy's deposition would *** be admissible for impeachment had [the plaintiff] failed to acknowledge such
prior complaints in her trial testimony. [The plaintiff] contends that, pursuant to Voykin, 'the court should not have deemed the testimony of Dr. Conroy to be admissible for impeachment' as [the defendant] did not offer expert testimony discussing any causal link between [the plaintiff's] 2005-06 back pain and her current symptoms. However, it is well established that, apart from relevance on substantive issues, evidence of a prior inconsistent statement may be admissible for impeachment. [Citation.]
In this case, had [the plaintiff] chosen to testify at trial that she had no history of back complaints, the 2005-06 complaints referenced in Dr. Conroy's deposition would constitute prior inconsistent statements. Such evidence would impeach [the plaintiff's] credibility, creating a basis for admission independent of the substantive issue of causation. [The plaintiff] complains that the trial court's ruling gave her 'no choice at all as far as how to proceed on this issue, i.e., [the plaintiff] was forced to introduce the evidence' of the 2005-06 complaints during her direct examination or risk impeachment with Dr. Conroy's deposition. However, the trial court was entirely correct in instructing [the plaintiff] that she had to 'pick her poison'-she could either acknowledge the prior complaints at trial, or deny any history of back problems and face impeachment with her prior inconsistent statements." Id. ¶¶ 60-61.
¶ 58 Here, we find no misapplication of Voykin by the trial court below when finding the challenged prior injury evidence was relevant for purposes of impeachment. Not only did defendants show such evidence was relevant to evaluating the basis of Dr. Tallerico's causation opinion, the prior injury evidence was also relevant to the issue of plaintiff's credibility. Accordingly, had plaintiff properly preserved her objection to the prior injury evidence, we would find no error by the trial court in ruling that the evidence was relevant for impeachment purposes.
¶ 59 C. Motions for Summary Judgment
¶ 60 As noted, plaintiff also argues the trial court erred by denying her motions for summary judgment on the issues of proximate cause and the necessity of medical treatment. She maintains such issues should have been decided by the court as a matter of law where defendants "effectively waived any defense to contest proximate cause and the necessity of treatment by not having an expert."
¶ 61 Summary judgment is appropriate "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2020). It "is a drastic means of disposing of litigation and should be allowed only when the right of the moving party is clear and free from doubt." Beaman v. Freesmeyer, 2021 IL 125617, ¶ 72, 183 N.E.3d 767. "Where a reasonable person could draw divergent inferences from the undisputed material facts or where there is a dispute as to a material fact, summary judgment should be denied and the issue decided by the trier of fact." Id.
¶ 62 When considering whether to grant summary judgment, a court "must construe the pleadings, depositions, admissions, and affidavits strictly against the movant and liberally in favor of the nonmoving party." Id. The trial court's ruling on a motion for summary judgment is subject to de novo review. Id.
¶ 63 Although not addressed by the parties in their briefs, we note that, "[o]rdinarily, the denial of summary judgment is not appealable, because such an order is interlocutory in nature." Clark v. Children's Memorial Hospital, 2011 IL 108656, ¶ 119, 955 N.E.2d 1065. In Clark, the supreme court identified two exceptions to the general rule:
"[W]e have recognized an exception [to the rule that the denial of summary judgment is not appealable] in certain circumstances, as when the parties have filed cross-motions for summary judgment and one party's motion is granted and the other party's denied. Because the order disposes of all issues in the case, review of the denial of summary judgment may be had. [Citation.] Our appellate court has similarly concluded that the propriety of the denial may be considered if the case is properly before a reviewing court from a final judgment and no trial or hearing has been conducted. [Citations.]" Id.
¶ 64 Neither of the exceptions recognized in Clark apply here. The present case did not involve cross-motions for summary judgment and, instead, the matter was finally resolved through a jury trial. Accordingly, the general rule applies and the trial court's denials of plaintiff's motions for partial summary judgment are not reviewable.
¶ 65 Further, we again find that even assuming the trial court's denials of summary judgment were reviewable, plaintiff's contentions-that the trial court misapplied Voykin and that defendants had to present the opinions of their own medical expert to counter Dr. Tallerico's favorable causation opinions-lack merit.
¶ 66 In an automobile negligence case, the plaintiff has the burden of proving "that the defendant was negligent and that the defendant's negligence was a direct and proximate cause of an injury sustained by the plaintiff." Peach v. McGovern, 2019 IL 123156, ¶ 53, 129 N.E.3d 1249. "The issue of whether an automobile accident has proximately caused any injury is uniquely a question of fact for the jury to decide." Id. Further, whether an opinion from the plaintiff's expert should be accepted is a determination for the jury as the trier of fact, and "a jury is not required to accept the testimony of [the] plaintiff's expert." Id. ¶ 54. In deciding a motion for summary judgment, the trial court "cannot make credibility determinations or weigh evidence." Coole v. Central Area Recycling, 384 Ill.App.3d 390, 396, 893 N.E.2d 303, 309 (2008).
¶ 67 Moreover, "a defendant is not required to present medical testimony to contradict or discredit the testimony of [the] plaintiff or [the] plaintiff's witnesses." Peach, 2019 IL 123156, ¶ 55. "[I]f the jury finds the plaintiff to be incredible, it can correspondingly disregard the opinions of the medical professional that are based upon information supplied to the professional by the plaintiff." Id. Ultimately, "[t]he value of expert testimony depends upon the facts and reasons which form the basis of the expert's opinion." (Internal quotation marks omitted.) John Crane Inc. v. Allianz Underwriters Insurance Co., 2020 IL App (1st) 180223, ¶ 20, 157 N.E.3d 1097. "Even where the experts are 'eminently qualified,' the [trier of fact] need not take their opinions as conclusive on the matter." Id.
¶ 68 In this case, defendants opposed plaintiff's motions for summary judgment by pointing to (1) Dr. Tallerico's testimony at his discovery deposition that his causation opinions were based on the subjective history plaintiff provided to him and (2) the prior injury evidence that was inconsistent with that subjective history. For the reasons stated above, the prior injury evidence was relevant for impeachment purposes and its admission did not require defendants to present testimony from a medical expert. Such evidence raised questions regarding the credibility of witnesses and the weight to be accorded Dr. Tallerico's opinions, creating a disputed material fact. Although Dr. Tallerico persisted in his opinion that plaintiff's left knee injuries and need for treatment were proximately caused by the motor vehicle accident, and defendants had no expert of their own, a fact finder did not have to accept Dr. Tallerico's opinions. Defendants could challenge the basis of Dr. Tallerico's opinions and plaintiff's credibility through cross-examination and without presenting their own expert. The supreme court's decision in Voykin does not require a different result, and the trial court did not misapply the holding in that case.
¶ 69 D. Motions for a Directed Verdict and Judgment Notwithstanding the Verdict
¶ 70 Finally, on appeal, plaintiff argues the trial court erred by denying both her motion for a directed verdict and her motion for a judgment notwithstanding the verdict.
¶ 71 While motions for a directed verdict and a judgment notwithstanding the verdict are made at different times, they both "raise the same questions and are governed by the same rules of law." Lawlor v. North American Corp. of Illinois, 2012 IL 112530, ¶ 37, 983 N.E.2d 414. Such motions "should be granted only when all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors [a] movant that no contrary verdict based on that evidence could ever stand." (Internal quotation marks omitted.) Id. The standard for entering a directed verdict or judgment notwithstanding the verdict "is a high one," and such a motion "is not appropriate if reasonable minds might differ as to inferences or conclusions to be drawn from the facts presented." (Internal quotation marks omitted.) Id. The trial court's ruling as to either motion is subject to de novo review. Id.
¶ 72 As to her claim that the trial court erred by not entering a directed verdict in her favor or a judgment notwithstanding the verdict, plaintiff reiterates the same arguments she made with respect to her other claims. Relying on Voykin, she contends the court erred by allowing prior injury evidence to be presented at trial and that defendants needed to present expert medical testimony to refute Dr. Tallerico's causation opinions. For the reasons already stated, we find no merit to these contentions and no error by the trial court.
¶ 73 Additionally, to the extent plaintiff argues the weight of the evidence was insufficient to support the jury's verdict, we disagree. In denying plaintiff's posttrial motion, the trial court provided a thorough discussion of the evidence presented at trial, which it found provided sufficient support for the jury's verdict. Specifically, the court stated as follows:
"Plaintiff's expert indicated that Plaintiff told him that she was fit enough for CrossFit and never had any knee problems. However, the Plaintiff testified that, prior to the accident, she believed her knee was 'bone on bone' as others told her that the sound her knee made indicated this problem. She had previously taken medication for knee problems and received physical therapy. Yet, even when confronted with the information about the prior knee issues, Dr. Tallerico[ ] indicated his opinion was unchanged and the accident was the sole cause of the knee injury. Moreover, on cross[-]examination, Dr. Tallerico stated that it would be difficult, in this type of accident, for the Plaintiff to strike her knee on the dashboard in the manner that Plaintiff described. These facts, and this opinion, could have caused the jury to question the Plaintiff's credibility. Dr. Tallerico acknowledged that he was not an expert in physics. The [damage] to the vehicles [was] minimal and the jury could evaluate this information without expert testimony. [Citation.] The Plaintiff testified that she saw [Wiemelt's] vehicle over [four] blocks away in her rearview mirror. From that distance, she alleged that she could ascertain the vehicle's speed. The jury may have found this unlikely. During cross[-]examination, when discussing her own pain levels, the Plaintiff also acknowledged that people exaggerate. In addition, Dr. Tallerico testified that a portion of his opinion was reliant upon the information that the Plaintiff provided him. Thus, possibly calling the basis and foundation of Dr. Tallerico's testimony into question, as he had relied upon the Plaintiff's recitation of information and the
events."
¶ 74 The record reflects the trial court accurately set forth the evidence. We find no error in either the court's denial of plaintiff's motion for a directed verdict or its denial of plaintiff's motion for a judgment notwithstanding the verdict.
¶ 75 III. CONCLUSION
¶ 76 For the reasons stated, we affirm the trial court's judgment.
¶ 77 Affirmed.
¶ 78 JUSTICE STEIGMANN, specially concurring:
¶ 79 Although I fully agree with my distinguished colleagues in the majority, I specially concur because I believe the current rules governing the appealability of a denial of a motion in limine need to be reconsidered. Ordinarily those rules work just fine, but this case presents a factual context in which those rules could result in denying a party a fair trial.
¶ 80 The key issue in this case is whether the trial court correctly applied the Voykin doctrine, which normally requires a defendant to present expert testimony to establish the relevance of a plaintiff's prior injury to the current one of which the plaintiff is complaining. Again, I agree with the majority that the "impeachment" exception to the Voykin doctrine applies here. However, I specially concur because plaintiff was entirely correct to challenge in a pretrial motion in limine the admissibility of plaintiff's previous medical treatment for her left knee when the injury to that knee was the basis of her claim for damages in this case.
¶ 81 In March 2020, defendants disclosed that they had retained a medical expert to render opinions regarding the cause of plaintiff's alleged injuries and her previous medical treatment for her left knee. In August 2021, they filed an "Abandonment of Expert," formally stating they were abandoning that expert witness in this case. In response, plaintiff filed a motion in limine in January 2022 seeking to bar defendants from presenting any evidence regarding previous medical treatment for plaintiff's left knee.
¶ 82 In February 2022, the trial court granted plaintiff's motion, in part, ruling that defendants were barred from presenting substantive evidence of plaintiff's past medical history relative to the issue of proximate cause. Nonetheless, the court determined that the prior injury evidence could be used for impeachment purposes, noting that plaintiff "was a terrible subjective reporter of her prior medical history, and if it doesn't come out on direct, [defense counsel] certainly gets to bring this up on cross." The court further noted that plaintiff is "either going to acknowledge the prior complaints and the prior history or-and/or if she denies that, [defense counsel] certainly has the right to impeach her with those inconsistent statements."
¶ 83 The trial court aptly described plaintiff's lawyer's dilemma as "pick your poison." That is, either (1) plaintiff's counsel could elicit the damaging testimony from plaintiff herself and others, thereby revealing the true nature of her prior medical treatment for her left knee, or (2) plaintiff's counsel could say nothing and let defense counsel elicit this information either during cross-examination of plaintiff or during the defense case in chief.
¶ 84 All trial lawyers are familiar with the old adage that when trying a case before a jury, you want to reveal all your weaknesses as soon as possible-likely in opening statement- and conceal some of your strengths. This is especially true for plaintiffs, who have the burden of proof.
¶ 85 So, no one should be surprised that plaintiff in this case chose to preemptively introduce the damaging testimony regarding her "incomplete" account of her medical history to the doctor who was treating her left knee injury that supposedly arose out of the rear-end crash of plaintiff's car. In my judgment, plaintiff's doing so was entirely reasonable, and, in the particular circumstances of this case, defendants suffered no prejudice by plaintiff's first exposing to the jury the weakness in her own case.
¶ 86 Yet, as the majority explains supra ¶¶ 48-50, the denial of plaintiff's motion in limine did not in itself preserve an objection to the admissibility of any prior injury evidence. Instead, in order to preserve the appealability of the denial of plaintiff's motion in limine, plaintiff was required to object at the time the allegedly improper evidence was offered at trial.
¶ 87 In this case, not only did plaintiff fail to object, plaintiff elicited the allegedly improper evidence.
¶ 88 Under the peculiar circumstances of this case, I believe the rules regarding the appealability of denials of motions in limine should permit plaintiff to do exactly what she did. Plaintiff should not be denied her right to appeal the trial court's ruling regarding the admissibility of her previous medical treatment simply because she beat defendants to the punch by introducing that evidence herself.
¶ 89 Even though plaintiff lost both at the trial level and before this court regarding her claim that evidence of her previous medical treatment was not admissible under Voykin, plaintiff presented a clearly colorable claim, especially given that very few cases have addressed the so-called Voykin impeachment exception since that case was decided 23 years ago.
¶ 90 In most instances, the rule requiring the party who lost a motion in limine to object when that evidence is presented at trial makes good sense. After all, the denial of a motion in limine typically involves an interlocutory ruling that is subject to reassessment based upon further or different evidence that might be presented at trial. But that sound rule does not apply to this situation.
¶ 91 Here, the parties fully litigated-pretrial-the issue of the Voykin impeachment exception, and the trial court carefully explained its ruling, in which it determined that evidence of plaintiff's previous medical treatment of her left knee would be admissible for impeachment purposes. The court's ruling involved a question of law-namely, did the Voykin impeachment exception apply based upon the facts of this case.
¶ 92 No evidentiary surprises occurred after the trial court's ruling, and the evidence at trial was exactly what the parties had discussed with the court. Thus, in my judgment, there is no reason why, under these unusual factual circumstances, the trial court's denial of plaintiff's motion in limine should not be viewed by this court as "fixed," thereby permitting the issue to be subject to appellate review no matter how the evidence was thereafter presented at trial. Plaintiff should be permitted to do exactly what she did in this case-namely, following an adverse ruling on a pretrial motion in limine, reveal the damaging evidence of her previous medical treatment before defendants did so. And her doing so should not deprive her of her right to appeal that issue.
¶ 93 In support of these views, I cite the recent unanimous opinion of the United States Supreme Court in Dupree v. Younger, 598 U.S., 2023 WL 3632755 (decided May 25, 2023), in which the Court discussed the rules of federal civil procedure regarding "whether a purely legal challenge resolved at summary judgment must be renewed in a post-trial motion in order to preserve that challenge for appellate review." Id. at 3. The Court unanimously concluded that the answer is no. Id. at 4.
¶ 94 In explanation of this conclusion, the Court wrote that "[s]ome interlocutory district-court rulings *** are unreviewable after final judgment because they are overcome by later developments in the litigation. *** Thus, '[o]nce the case proceeds to trial, the full record developed in court supersedes the record existing at the time of the summary-judgment motion.' [Citation.] So after trial, a district court's assessment of the facts based on the summary-judgment record becomes 'ancient history and [is] not subject to appeal.' [Citation.]" Id.
¶ 95 Of particular pertinence to the matter I discuss in this special concurrence are the following explanations the Supreme Court provided for its decision:
"While factual issues addressed in summary-judgment denials are unreviewable on appeal, the same is not true of purely legal issues-that is, issues that can be resolved without reference to any disputed facts. Trials wholly supplant pretrial factual rulings, but they leave pretrial legal rulings undisturbed. The point of a trial, after all, is not to hash out the law. Because a district court's purely legal conclusions at summary judgment are not 'supersede[d]' by later developments in the litigation, Ortiz [v. Jordan], 562 U.S. [180,] 184 [(2011)], these rulings follow the 'general rule' and merge into the final judgment, at which point they are reviewable on appeal [citation].
That difference explains why a summary-judgment motion is sufficient to preserve legal but not factual claims. As Ortiz explains, an appellate court's review of factual challenges after a trial is rooted in the complete trial record, which means that a district court's factual rulings based on the obsolete summary-judgment record are useless. A district court's resolution of a pure question of law, by contrast, is unaffected by future developments in the case. From the reviewing court's perspective, there is no benefit to having a district court reexamine a purely legal issue after trial, because nothing at trial will have given the district court any reason to question its prior analysis. We therefore hold that a post-trial motion under Rule 50 is not required to preserve for appellate review a purely legal issue resolved at summary judgment." Id. at 6.
¶ 96 I acknowledge that the majority opinion in this case, with which I agree, has written that a party may not appeal from the denial of his motion for summary judgment, which was based on the same argument that underlay his pretrial motion in limine that the trial court also denied. However, my agreement with the majority on this point is based on Illinois Supreme Court precedent, which the majority cites, which does not permit a party to appeal the denial of a motion for summary judgment except upon very limited circumstances, none of which are present in this case.
¶ 97 Perhaps one solution for the problem I discuss in this special concurrence would be, instead of changing the rule dealing with the appealability of the denial of a pretrial motion in limine, to change the appealability of the denial of a motion for summary judgment when, as here and in Dupree, the sole issue before the trial court is a question of law.
¶ 98 I am not sure what the rule should be to permit an appeal from a trial court's denial of a motion in limine under the circumstances of this case, but I hope by this special concurrence to call this matter to the attention of the Illinois Supreme Court or perhaps its rules committee.